Petition for Writ of Certiorari — Simmons, In Re (No. 07-1131)

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OFFICE OF THE CLERK

In The

Supreme Court of the United States

In re AUGUSTUS SIMMONS,

Petitioner

On Petition For Writ Of Mandamus

To The Supreme Court Of Connecticut

PETITION FOR WRIT OF MANDAMUS

AUGUSTUS J. SIMMONS

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

Owner-Title Holder

FEDERAL QUESTION

[DAMAGES - JUST COMPENSATION]

1.) Wherein undisputed, state acknowledged (Trans.

June 7, 1982) Petitioner, Owner, Title Holder filed

under Simmons v. Wetherall, #163875 with the Su-

preme Court of Connecticut on October 23, 2007 a

[SECOND] MANDAMUS APPLICATION at 6(h)

under OBSTRUCTION of JUSTICE-DESTROYING

EVIDENCE revealing the position of the United

States Supreme Court relative to a governmental

regulation or action that has deprived a claimant of

his property without just compensation is an — “Es-

sentially ad hoc factual inquir[y].” Penn Central

Transportation Co. v. New York City, 438 U.S. 104,

124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1977), reh. de-

nied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198

(1978); see also Keystone Bituminous Coal Assn. v.

DeBenedictis, 480 U.S. 470, 473-74, 107 S.Ct. 1232,

94 L.Ed.2d 472 (1987); Pennsylvania Coal Co. v.

Mahon, 260 U.S. 395, 413, 43 S.Ct. 158, 67 L.Ed. 322

(1922).

2.) What the Constitution does require is that the

time of the invasion in case at bar, on or about July 1,

1962 constitutes “The act of taking by the United

States,” and, “it is that event which gives rise to the

claim for compensation and fixes the rate as of which

the land is to be valued.” United States v. Dow, 357

U.S. 17, 22, 78 S.Ct. 1039, 1044, 22 L.Ed.2d 1109

(1958).

FEDERAL QUESTION -— Continued

3.) Wherein the State [Agent] — Connecticut Depart-

ment of Transportation (C.D.O.T.), without initiating

any further affirmative action, after two (2) null and

void condemnation attempts, took some numbers off

the clock on the wall to make a “verbal offer” in

December, 1977, wherein the United States Govern-

ment - IN BAD FAITH - had displaced the owner in

[1962] of a six (6) acre Parcel “C” as depicted on a

map on file in Town of East Granby, Connecticut land

records at Vol. 12, (map) page 568, — It was ILLEGAL

— UNCONSTITUTIONAL --UNCHARACTERISTIC —

CHAMPTEROUS for the reviewing Connecticut

Supreme Court to seize, |Transmogrify] petitioner

owner’s tort action (Simmons v. Wetherall #163875)

into an Eminent Domain Action and categorize such

tortious conduct — “A JUDGMENT.” See Standara Oil

Co. v. Missouri, 32 S.Ct. 406 (1912).

4.) Whereupon, under Federal Question in Shoe-

maker v. United States, 147 U.S. 282, 13 S.Ct. 361 at

383 (1893) the United States Supreme Court of last

resort reported (a) The courts have no discretion at

all; (b) it is by the act directed to ascertain and assess

the value of the land; (c) the means by which the

court is to do it is also provided for; (d) if the court

should decline to discharge that duty the commission

(owner in case at bar), would be entitled to a MAN-

DAMUS to compel it.

5.) Under Constitutional Law our highly respected

United States Supreme Court has gone on record

ill

FEDERAL QUESTION - Continued

that: the government is bound to make just compen-

sation for whatever it shall take from the individual

is undoubted; and in the words of the Supreme Court

in Great Falls Mfg. Co. v. Atty. General, 124 U.S. 596,

8 S.Ct. 631 (1888): “It is to be assumed that the

United States is incapable of BAD FAITH, and that

Congress will promptly make the necessary appro-

priations whenever the amount of compensation has

been ascertained in the mode prescribed.”

TRESPASSERS AB-INiTIO

6.) Where the Federal Question is — crystal clear —

under Constitutional Law that the owner was [DIS-

PLACED] by actions of the Federal Government,

(F.A.A.), with their [exclusive] usurpation of the

ground and air space; the State of Connecticut,

(C.D.0.T.), pursuant to 42 U.S.C. § 4628 was acting

as AGENT for the Federal Government — who — in

BAD FAITH have been engaging in [LEASES] with

the TRESPASSER (C.D.O.T.) for in excess of four (4)

decades to avoid paying rent or just compensation of

one (1) legal dollar — ignoring, disregarding the

[FACT] that state courts had reverted ownership on

March 24, 1972 with the Owner a prevailing party

after two (2) failed condemnation attempts; making

the United States Government (F.A.A.) and the State

Transportation Department (C.D.0.T.) TRESPASS-

ERS AB-INITO as of March 25, 1972, and, continuing

to present date.

FEDERAL QUESTION -— Continued

7.) Wherein the Supreme Court of Connecticut has

ruled in Karp v. Urban Redevelopment Comm. of

Stamford, 162 Conn. 525, 294 A.2d 633 (1972) that

the filing of a written statement of compensation with

the clerk’s office of the Superior Court — Did Not —

originate a civil action.

8.) [NO] FACTS; [NO] PLEADINGS; [NO] HEAR-

INGS; [NO] ADDRESSING of DAMAGES or MAR-

KET VALUE; [NO] NOTICES or SERVICE on the

OWNER and NECESSARY PARTIES; [NO] ACCEP-

TANCE of UNCONSTITUTIONAL VERBAL “SLUSH

FUND MONIES’; [NO] TENDERING ANY DEEDS;

[NO] INITIATING ANY AFFIRMATIVE ACTION, of

any nature, post March 24, 1972; [NO] SUBJECT

MATTER JURISDICTION EVER ACQUIRED by the

SUPERIOR COURT BELOW; [NO] JURISDICTION

of the PARTIES by the SUPERIOR COURT BELOW;

[NO] JURISDICTION of the PROCESS by the SU-

PERIOR COURT BELOW who have [EXCLUSIVE]

JURISDICTION on all REAL PROPERTY MAT-

TERS.

9.) In Simmons v. Wetherall, 472 F.2d 509:(1973)

THE Second Circuit Court of Appeals ruled that: The

allegations about the land upon which the runway

lights are placed stand on a different footing — if the

state had fenced it off and put runway lights on it.

Assuming all that to be true, we are unable to con-

clude that “it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

FEDERAL QUESTION - Continued

would entitle him to relief.” Conley v. Gibson, 355

U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

If the land is in fact Simmons, and the state indeed

has fenced it off without paying him due compensa-

tion or instituting court proceedings, it would seem

that a deprivation of appellant’s right to “enjoy” the

use of his land is stated. See Lynch v. Household Fin.

Corp., 405 U.S. 538, 544, 92 S.Ct. 1113 (1972).

10.) The FACT that the TRESPASSER STATE

AGENT, acting in collusion and conspiracy with

malicious, tortuous, felonious, champterous, trespass-

ing, private counsel (Rogin-Hirtle) -— who — “Re-

tracted” — “Retrenched” — “Gave notice of not going to

try the case” — nevertheless — filed an appearance

to OBSTRUCT JUSTICE, DESTROY EVIDENCE

relative to a Federal Program/Project, [NULLIFYING]

the “Reported” remand of the Second Circuit (472

F.2d 509 (1973)); [NULLIFYING] the judgment of

Referee Shapiro on Superior Court records as of

January, 17, 1977 that constituted a taking of plain-

tiff’s land without statutory authority; and uncom-

pensated taking in the constitutional sense in

violation of the Fifth and Fourteenth Amendments to

the United States Constitution and in violation of

Article First, Sec. 11 of the Connecticut Constitution

(Ex. #16).

11.) The ruling by the Connecticut Supreme Court

under Simmons v. Wetherall, supra, that such EXTRA-

ORDINARY UNCONSTITUTIONAL ACTIVITY was

FEDERAL QUESTION — Continued

to be labeled a supplemental or stipulated judgment —

warrants — a writ of MANDAMUS setting such

decree aside and the United States negotiate a

[LEASE] with the owner — not the TRESPASSER.

MANDAMUS APPLICATION #1 (August 8, 2007)

12.) Petitioner/Owner/Titleholder not having been

paid-offered-deposited or ascertained or assessed the

value of the land —- “TAKEN” by the Federal Agency

(F.A.A.) as of July 1, 1962 of ONE LEGAL AMERI-

CAN DOLLAR, AND, the filing of MANDAMUS

APPLICATION #1 on August 8, 2007 with the Su-

preme Court of Connecticut was just another [Exer-

cise in Futility]; the state’s highest reviewing court —

continually — relying on its [ORDER] of May 31, 2000

(Ex. #10) that the plaintiff is hereby prohibited from

filing pleadings in this court that are related to

Docket #163875 that was, is, remains an active case

as a supplement to the due process clause of the Fifth

and Fourteenth Amendments; that just compensation

(damages) must (shall) be addressed as a result of

two (2) null and void condemnations; that the issue of

just compensation was — [NEVER] - addressed,

ascertained, determined with the OBSTRUCTION

OF JUSTICE by nullifying all hearing dates (Ex.

#14); that the agent (C.D.0.T.) taking some numbers

off the clock on the wall to make a - VERBAL OFFER

— AND, the owner informed the malicious, felonious,

tortious private counsel (Rogin-Hirtle) representing

vii

FEDERAL QUESTION - Continued

the owner, in writing (Ex. #4), in polite fashion to:

[Take your verbal offer and get the hell out of town —

while you are in one piece]. The Superior Court record

shows the [off-the-wall disputed numbers] returned to

the Treasury on December 23, 1991 (Ex. #9).

13.) WHERE — The Special Act #170 (1969) was a

Fifth and Fourteenth Amendment Supplement

against any defenses of sovereign immunity and/or

the reviewing Connecticut Supreme Court acting —

[WITHOUT] — any affirmative action, notice, service,

hearings, assessments, judgments before the court

below: our United States Supreme Court has stated:

Rule 71A(h) “Provides that, except for the single issue

of just compensation, the trial judge is to decide all

issues, legal and factual, that may be presented.”

United States v. Reynolds, 397 U.S. 14, 19, 90 S.Ct.

803, 806, 25 L.Ed.2d 12 (1970).

14.) Under Federal Question and PROCEDURAL

DUE PROCESS our United States Supreme Court —

continually - DEVIATING from its ruling of Chicago

B. & O.R. Co. v. Chicago, 17 S.Ct. 581 (1897) that a

court rendering a judgment should have [JURISDIC-

TION], not only of the parties, but of the subject

matter and the process; DEVIATING from its basic

fundamental constitutional mandate that COMPEN-

SATION AND DAMAGES must (shall) be deter-

mined, ascertained as of date or time of taking

(notwithstanding two (2) failed condemnation at-

tempts) and INTEREST must (shall) be considered

vill

FEDERAL QUESTION -— Continued

pursuant to its holding in United States v. Dow,

supra, referenced in #2; DEVIATING from its holding

in Connecticut v. Doerr, 111 S.Ct. 2105 (1991) (Con-

necticut Case) that some type of post-deprivation

hearing must take place — as a minimum; DEVIAT-

ING from its holding in Seaboard Airline R. Co. v.

United States, 261 U.S. 299, 306 (1923) whereby the

owner is not limited to the value of the property at

the time of taking: He is entitled to such addition as

will produce the full equivalent of that value paid.

INTEREST at a proper rate “is a good measure by

which to ascertain the amounts to be added.”

15.) Under Federal Question, where the issue from

day one was the condemnation action by the state in

February 1962, against a “FEDERAL TAKING for

AIRPORT PURPOSES” of a parcel designated as

Parcel I (c) on land records of East Granby, CT at Vol.

12 (map), p. 568 whereby just compensation could not

be agreed upon, AND, was — never — resolved

[COULD NOT] be resolved where on June 6, 1982

(quarter century ago) in Superior Trial Court before

Hon. Dupont, A., the state (Assistant Attorney Gen-

eral, Victor Feingold) challenged the Trial Court with

not having subject matter jurisdiction — or the proc-

ess, and, Attorney Walter Bass made clear that

neither he nor his clients (Valente-Allaire) were ever

served with process or notice, coupled with the FACT

that the (Rogin-Hirtle, Esq.’s) law firm was “Not

going to try the case” — yet — the felonious, tortious,

FEDERAL QUESTION — Continued

malicious petitioner’s counsel having been discharged

(Ex. #4, December 23, 1977); having legally withdrawn

from representation (Ex. #6, April 19, 1978); having

intentionally, maliciously, feloniously — in direct viola-

tion of the Fifth and Fourteenth Amendments and

Special Act #170 (1969) of SHANGHAIJING] the judg-

ment of Referee Shapiro on Superior Court records of

Docket #162923 as of January 17, 1977 (Ex. #16);

SHANGHAIING] scheduled hearing dates (Ex. #14),

denying a day in court to address damages;

SHANGHAI[ING] two (2) active Federal Court Cases

including 472 F.2d 509 (1973) on remand; adding

INSULT TO INJURY by putting a taking on the land

records — but — no returns to the Superior Court of

_ Parcel II (Parcel (D)) of a 1.12 acre “TAKING” in 195,

(half century ago) of land for Federal-Aid Highway,

Route #20 without any compensation consideration; a

taking on the land records — but — no returns to the

Superior Court of Parcel III (Parcel A, 2.2 Acres)

without any compensation consideration; adding

Exhibit (B) stating that petitioner/owner [COVE-

NANTS] restrictions regards height, lighting, right of

first refusal, and other encumbrances without any

discussion or hearing on the merits, no returns to the

Superior Court; the owner putting a DISSOLUTION

OF ATTACHMENTS PURSUANT TO C.G:S. § 52-327

on the land records on December 1, 1996 (Ex. #2) —

warrants — justifies - mandates - A MANDAMUS of

wiping the record clear of the Connecticut Supreme

FEDERAL QUESTION - Continued

Court decision 180 Conn. 587 (1980) where there is

NO RECORD before the court below.

FINALITY

16.) Citing United States v. 341.45 Acres of Land, 633

F.2d 108 (C.A. Minn. 1980) wherein this United States

Supreme Court remanded for a new trial — for several

reasons — including the fact the government may not,

however, defer the deposit of funds in court in order to

compel an agreement on the price of the property, see

42 U.S.C. § 4651(7); “A ‘Final Decision’ genetally is one

which ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.”

Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct.

631, 633, 89 L.Ed. 911 (1945), albeit, in case at bar,

there was [NO] litigation on the merits, [NO] affirma-

tive action or appraisals initiated after March 24,

1972, [NO] decisions or judgments before the Superior

Court who have [exclusive] jurisdiction of real property

matters; where the determination of the award is an

offer subject to acceptance by the [FORMER CON-

DEMNEE] and the record is — ultra clear — the current

owner would not [TAKE-A-BITE] of an apple that was

rotten-to-the-core for the obvious reason that courts —

regardless of circumstances - DO NOT — permit a

second bite, and, where the record is — ultra clear —

there was no tendering of deeds under our AMERICAN

JURISPRUDENCE (Ex. #5, April 19, 1978) making —

Ultra Clear — the ‘TAKING’ United States Government

FEDERAL QUESTION -— Continued

and the State of Connecticut (C.D.O.T.) were, are, con-

tinuing TRESPASSERS until such time as AFFIRMA-

TIVE ACTION is initiated, instituted, begun to acquire

Eminent Domain Rights in the subject properties.

xii

TABLE OF CONTENTS

Page

Pe ME IN a kvecssesiccessesccsscsssessccncscesces i

ORDER AND OPINION BELOW.......................: 1

TENE TIE iss cacvnsaavsces cneseascecanisecsocane Ee: 3

PUP RER TEE MO RIMEOEED csiicsccncnscisssecsccsssssccessssecssonen 3

Cee ie, cris vinasnseucensvekansoecnnnel 4

[DISPLACED PERSON] ............ccscscsccressesccesee 4

[LEASING]........... Ls IB Hr ENT OT OD iE EE 5)

hick tcbspuedesssusnksensscinenionéssscaneduesea 5

POT essa pissertistenescacacsnscssccscessscnctaasestecee 6

SETAE EEE GFE PICT occ cccccsccssccccsseccneccccnccosses 6

[Second] Direct Attack Motion..................00008 6

SURO Iai ics nj cdccncenscisessesecesenmndanonsns 7

1. Special Act #170 (1969) Simmons v.

WMOMEP GLE GEGBO TD oo oi sec sc cccccissccccccsosees 7

D. FR ii cssksisccsssesscscccessccesvns 8

3. Uniform Land Acquisition Policies

is lie hasan ad cise aking lala aanox mee 8

4. State or United States Obligation

Under Fifth and Fourteenth

PIII fa soidisscisiccicrskscveamicasions 9

5. Just Compensation. ................c.esccovorees 11

aa aicbcid cies sca sehualnihabecssvebtbanyaxeenna 13

Supreme Court Order — May 31, 2000, Ex.

fa a apse anensapinlcndnoanalasonnanatoies 14

xill

TABLE OF CONTENTS — Continued

Page

REASONS WHY WRIT SHOULD ISSUE........... 16

Me RIE ashsssadncssiscssdnsscyeiievpascesishiajalsnden 20

APPENDIX

Second Mandamus Application to Supreme Court’.

of Connecticut, dated October 23, 2007.............. App. 1

Mandamus Application to Supreme Court of

Connecticut, dated August 8, 2007 ............... App. 21

Affidavit and List of Original Exhibits............. App. 41

X1V

TABLE OF AUTHORITIES

Page

CASES

Almota Farmers Elevator & Warehouse ov.

United States, 409 U.S. 470, 93 S.Ct. 791, 35

Bi ee ili aks sik Soc Liecsinckcacanioaeiaunanspskaae 4,2

Anti-Fascist Committee v. McGrath, 341 U.S.

BA Te Oe Ce COE oes esi icc 3, 15

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct.

SBT 2 Ga ee Oe CRI) wi scscdicnackctcccacissesnaiccens 7,19

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct.

Ue i ik sisi daha ea h aad eb data deine 3

Brill v. Ulrey, 159 Conn. 371, 269 A.2d 262

CT ashes siti cn nscdincnganonichonecuaiencdliciee aera data 18

Brinkerhoff-Faris v. Hill, 281 U.S. 673 (1930)....... 7,8

Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042,

OG hc ee ee Os shh tc eh as 7

Catlin v. United States, 324 U.S. 229, 65 S.Ct.

er ee ce Ce ented teach esp ie de cencsadeccens x

Carl Roessler, Inc. v. Ives, 156 Conn. 131 (1968)...... 10

Chicago B. & O.R. Co. v. Chicago, 17 S.Ct. 581

e-_ 5 TRSES RNR Sa yep depn ee l alerer ye anny es RN vii

City of Columbia, S.C. v. Costle, 710 F.2d 1009

(40 Car, TIGR) ..\.cvcessssoeisicscssconsinencosncsnovnioasasrasessanne 19

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2

Bsc IE SE CE Fi ciincontcndekactticeinsnacknmsscscrvecnsascuacdenses Vv

Connecticut v. Doerr, 501 U.S. 1, 111 S.Ct.

BAO, LAD MiB EB CLOO ED) wecedccnscescsccscassenensesset viii, 3

TABLE OF AUTHORITIES -— Continued

Page

DeBeers Consolidated Mines v. United States,

325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566

CRI) a hash a adccei sc piccctaccatiascavip cher vsataguinaccUbesiaeaibestacs 16

Drakes Bay Land Co. v. United States (CT. —

i PO: EI ss hte ccs aa rai vncnivuscdavncneigininuaicecucass\ sucess 9

Farrar v. Hobby, 506 U.S. 108, 113 S.Ct. 566

2 2 ES SCTE A tte BRIE OCOD OTe ROE 13

Great Falls Manufacturing Co. v. Attorney

General, 124 U.S. 596, 8 S.Ct. 631 (1888)........ ili, 22

Harris v. Hardeman, 55 U.S. 334 (1852)...............04 15

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct.

LOGS, TG Ee TG Be SEF CIOS) ons vcsesscccccvensicsssccasacascuee 13

Jacobs v. United States, 290 U.S. 13, cert.

grantenl, BOO TGS. T 59 (1 GSS) iv da san savesagecoesssicanssscovese 5

Jepsen v. The Toni Co., 20 Conn. Supp. 287,

Re Fe Fea tis is viccndadthvaks cdeseaasccodepsvs 17

Kaiser Aetna v.: United States, 444 U.S. 164,

100 S.Ct. 383, 62 L.Ed.2d 332 (1979).................000. 4

Karp v. Urban Redeveloment Comm. of

Stamford, 162 Conn. 525, 294 A.2d 633

RN sities hac cacsca kde cewemeubacanicesrd icseaiecdsus iv

Kawasaki, Kissen, Kaisha, Ltd. v. Indomar,

Lid., 173 Conn. 269, 377 A.2d 316 (1977)............. 18

Kerr v. United States District Court, 426 U.S.

394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)............ 21

Keystone Bituminous Coal Assn. v. DeBenedictis,

480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472

Xvi

TABLE OF AUTHORITIES - Continued

Kimball Laundry Co. v. United States, 338 U.S.

1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949)

Lewis v. Pennington, 400 F.2d 806 (6th Cir.

Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 102 S.Ct. 3164, 73

L.Ed.2d 868 (1982)

Lynch v. Household Fin. Corp., 405 U.S. 538,

92 S.Ct. 1611, 31 L.Ed.2d 424 (1972)

Martinez v. California, 444 U.S. 277, 100 S.Ct.

553, 62 L.Ed.2d 481 (1980)

Morici v. Jarvie, 1837 Conn. 97, 75 A.2d 47

Mullane v. Central Hanover B. & T. Co., 389

U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)

New Haven Sandblast Co. v. Dreisbach, 104

Conn. 322, 133 A. 99 (1926)

Pasquinelli v. Southern Macaroni Mfg. Co., 272

Pa. 468, 116 A. 372 (1922)

PennCentral Transporation Co. v. New York

City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d

631 (1977), reh. denied, 439 U.S. 883, 99

S.Ct. 226, 58 L.Ed.2d 198 (1978)

Pennsylvania Coal Co. v. Mahon, 260 U.S. 395,

43 S.Ct. 158, 67 L.Ed. 322 (1922)

Research Associates, Inc. v. New Haven, 152

Conn. 137, 204 A.2d 833 (1965)

Samson v. Bergin, 138 Conn. 306 (1951)

xvii

TABLE OF AUTHORITIES -— Continued

Seaboard Airline R. Co. v. United States, 261

U.S. 299 (1923)

Shaw v. Spelke, 110 Conn. 208, 147 A. 675

Shelton v. Wolthausen, 80 Conn. 599 (1908)

Shoemaker v. United States, 13 S.Ct. 361

(1893) 11]

Simmons v. Parizek, #162923

Simmons v. Wetherell, 472 F.2d 509 (2d Cir.

passim

Slavitt v. Ives, 163 Conn. 198, 303 A.2d 13

(1972)

Standard Oil Co. v. Missouri, 224 U.S. 270, 32

S.Ct. 406, 56 L.Ed. 760 (1912) li

State v. Simmons, #202121

Steinmetz v. Steinmetz, 125 Conn. 663, 7 A.2d

915 (1939)

United States v. 341.45 Acres of Land, 633 F.2d

108 (C.A. Minn. 1980)

United States v. Causby, 328 U.S. 256 (1946) .... 18, 20

United States v. Dow, 357 U.S. 17, 78 S.Ct.

1039, 22 L.Ed.2d 1109 (1958)

United States v. General Motors Corp., 323 U.S.

373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)

United States ex rel. Girard Trust Co. v.

Helvering, 301 U.S. 540, 57 S.Ct. 855, 81

L.Ed. 1272 (1937)

XVlli

TABLE OF AUTHORITIES — Continued

United States v. Reynolds, 397 U.S. 14, 90 S.Ct.

803, 25 L.Ed.2d 12 (1970)

Village Creek Homeowners v. Public Utilities

Comm., 148 Conn. 336 (1961)

Wade v. Wade, 7 A.L.R. 1143 (1918)

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V passim

U.S. Const. amend. XIV passim

U.S. Const. art. I, § 11

STATUTES

28 U.S.C. § 1343(3)

28 U.S.C. § 1361

28 U.S.C. § 1651(a)

42 U.S.C. § 1983

42 U.S.C. § 4601

42 U.S.C. § 4601(6)

42 U.S.C. § 4622(a)

42 U.S.C. § 4627

42 U.S.C. § 4628

42 U.S.C. § 4651

42 U.S.C. § 4651(7)

42 U.S.C. § 4653

42 U.S.C. § 4654

x1X

TABLE OF AUTHORITIES — Continued

42 U.S.C. § 4655

42 U.S.C. § 4655(2)

49 U.S.C. § 44502

C.G.S. § 8-129

C.G.S. § 13b-50

C.G.S. § 48-16

C.G.S. § 48-174

C.G.S. § 52-327

RULES

Fed. R. Civ. P.

Sup. Ct. R. 17

Sup. Ct. R. 20

OTHER AUTHORITIES

62 Am. Jur. 2d Process § 3

49 C.F-R. § 24.102

49 C.F-R. § 24.102(d)

U.R.A., Public Law 91-646, 84 Stat. 1894,

enacted January 2, 1971 4,9, 11, 12, 14

To the Honorable Chief Justice Roberts

and Associate Justices of the

Supreme Court of the United States

Pursuant to Rules 17 and 20 of the Revised Rules

of the Supreme Court of the United States, Petitioner

applies for a Writ of Mandamus, directed to the

Honorable Borden, Judge of the State Supreme

Court, the respondent named above; and in support of

this application petitioner states:

ORDER AND OPINION BELOW

On May 13, 1980, the Supreme Court of Con-

necticut with NO RECORD at the court below (Supe-

rior) of any process being initiated by respondent,

Connecticut Department of Transportation that

would get the subject property before the court after

two (2) null and void condemnation attempts; where

petitioner’s newly obtained replacement counsel

(Rogin-Hirtle, Esquires) phone called to inform peti-

tioner — “They were NOT going to try the case,” and,

before the ink was dry on the contract, proceeded to

file an appearance to [DEACTIVATE] every active

State and Federal court case pending, including

Simmons v. Wetherell, 472 F.2d 509 (2d Cir. 1973) on

remand; where the record shows a discharge within

ten (10) days of appearance, was, ineffective to con-

trol additional damage being imposed against their

former client; where the two bureaucracies were, are,

and continuing as “CO-CONSPIRATORS” in “LEAS-

ING” of the subject property; that the United States

has in BAD FAITH used leases as a defense for not

paying a DIME of compensation for forty-five (45)

years, and, the Connecticut Supreme Court making it:

a “TROICA” by putting its stamp of approval on the

“combining of cases” to [put down the drain] thirty

(30) days of trial and judgment for plaintiff on Supe-

rior Court records on January 17, 1977 by Referee

Shapiro, L. of Simmons v. Parizek, Docket #162923,

BUT, more importantly under Rules of Procedure the

owner has a CONSTITUTIONAL RIGHT to not even

listen to a [verbal] offer, has a CONSTITUTIONAL

RIGHT to not tender any deeds (Ex. #5); has a CON-

STITUTIONAL RIGHT to Due Process in the pri-

mary sense of Notice and Opportunity to be heard;

the [borrowing-seizure] by the Connecticut Supreme

Court of petitioner’s tort action, Simmons v. Wether-

all, #163875 to proclaim, render a judgment where

there is not any proceedings instituted by the “Agent

— C.D.O.T.,” no pleadings, no docket number, no

determinations — ascertainments - written state-

ments of compensation; no proceedings ~ of any

nature — before the court below since March 24, 1972

when ownership reverted back to the owner; where

the record shows these basic fundamental constitu-

tional infringements were argued a quarter century

ago on June 7, 1982 in Superior Court before Hon.

DuPont, A., after the purported three dollar bill

judgment of Supreme Court of May 13, 1980 — DIS-

ALLOWING any distribution of “verbal slush finds”;

— the U.S. acknowledges al] Federal Funds ear-

marked for the subject Federal Project were reverted

back into their General Fund (Ex. #13); the corrupt,

discharged, legally withdrawn petitioner’s counsel

(Rogin-Hirtle, Esquires) in collusion, conspiracy with

the state agent (C.D.O.T.), who never instituted any

eminent domain procedures, never gave notice or

served interested and necessary parties, never having

established through appraisals — or other means — of

fair compensation as of date of taking or the value of

allowable damages, no written offers, wherein,

whereby all these BASIC PROTECTIONS under 49

C.F.R. § 24.102 are a MANDATE for Federal Projects,

nevertheless, place encumbrances and maps on land

records without using a sheriff or indifferent person —

that could never be executed, there obviously was no

returns to the Superior Court and, the Supreme

Court would NEVER allow, permit, grant a HEAR-

ING as required by statute of its validity and the

United States Supreme Court in Connecticut v. Doerr,

501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991) made

clear that some 'type of post-deprivation hearing must

take place — as a minimum. The vacating of the

attachments is part and parcel of this mandamus

application.

[DUE PROCESS]

1. Where the right to procedural due process is

“absolute” in the sense that it does not depend upon

the merits of a claimant’s substantive assertions, and

because of the importance to organized society that

procedural due process be observed, see Boddie v.

Connecticut, 401 U.S. 371, 375, 91 S.Ct. 780, 784,

28 L.Ed.2d 113 (1971); Anti-Fascist Committee uv.

McGrath, 341 U.S. 123, 171, 172, 71 S.Ct. 624, 648-

649 (1951) (Frankfurter, J., concurring), the denial of

procedural due process should be actionable for

[substantial] damages where the injury from two (2)

null and void condemnations is obvious mandating a

remand, where, petitioner never had — “A-Day-In-

Court.” There was NO TRIAL.

[UNITED STATES]

2. Where United States effectively appropriated

lands in connection with construction of navigational

instrumentation FORTY-FIVE (45) years ago, thereby

interfering with recognizable interest of owner,

United States was obliged to pay owner fair rental

value of that property for period involved, U.S.C.A.

Const. Amend. 5, Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d

868 (1982). See also Kaiser Aetna v. United States,

444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979);

and United States v. General Motors Corp., 323 U.S.

373, 382, 65 S.Ct. 357, 89 L.Ed. 311 (1945); Kimball

Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct.

1434, 93 L.Ed. 1765 (1949).

[U.R.A.]

3. The U.R.A., Public Law 91-646, 84 Stat.

1894, enacted January 2, 1971 has a policy declara-

tion wherein the statute mandates that benefits

[shall] be extended to persons displaced by real

property acquisitions when the real property is

acquired “for a program or project undertaken by a

Federal Agency” 42 U.S.C. § 4622(a) or “(WJhenever

real property is acquired by a State Agency... .” 42

U.S.C. $§ 4627, 4628.

[DISPLACED PERSON]

4. Under 42 U.S.C. § 4601(6), persons displaced

by action of the United States come within the defini-

tion of “displaced person,” since petitioner was dis-

placed “as a result of the acquisition of ... real

property ... for a program or project undertaken by a

Federal Agency, or with Federal Financial Assis-

tance,” was intended to benefit individuals who are

not willing sellers.

[LEASING]

5. Where the LEASING is one, if not the most

important issue, in this four decades fiasco and was

claimed — again — at #8 under supporting facts of

DIRECT ATTACK MOTION, dated January 3, 2007,

that is repeated henceforth: Where the “LEASING”

between the two bureaucracies (Connecticut Depart-

ment of Transportation and United States — F.A.A.) of

subject real property has, was, is, [continues] an

outright, blatant, denial of just compensation to the

owner, and, a 30-day trial over the period of one year

before Referee Shapiro concludes on January 17,

1977, the effect of which was to curtail, stop the

leasing of property the state does not own nor never

legally acquired, and, EJECT the Federal Agency for

not paying rent; was awarded reimbursement of

certain expenses as permitted by law, BUT, lo and

behold, the Connecticut Supreme Court — [NULLI-

FIES] — the judgment of Simmons uv. Parizek,

#162923 under the canopy of “COMBINING OF

CASES’ in 180 Conn. 587 (1980); was [and CON-

TINUES], an outright, intentional, blatant violation

of the Fifth and Fourteenth Amendments that private

property cannot be taken without just compensation.

[INTEREST]

6. Citing Jacobs v. United States, 290 US. at

16-17 (1933) reads: The amount recoverable was just

compensation, not inadequate compensation. The

concept of just compensation is comprehensive and

includes all elements, “and no specific command to

include interest is necessary when interest or its

equivalent is a part of such compensation.” The

owner is not limited to the value of the property at

the time of taking; “he is entitled to such addition as

will produce the full equivalent of that value paid

contemporaneously with the taking.” Interest at a

proper rate “is a good measure by which to ascertain

the amount so to be added.” Seaboard Air Line R. Co.

v. United States, 261 U.S. 299, 306 (1923).

JURISDICTION

Jurisdiction of this Court is invoked under 28

U.S.C. § 1651(a).

STATEMENT OF FACTS

DOCKET NUMBER: : SUPREME COURT

s iacice omni : STATE OF CONNECTICUT

AUGUSTUS SIMMONS :

VS. : MARCH 28, 2007

HORACE WETHERALL .

[Second] Direct Attack Motion

Under — FEDERAL QUESTION - to the Su-

preme Court of Connecticut to: VACATE, SET ASIDE,

wipe the Supreme Court record clear of its decree

referred to as a “JUDGMENT” under Simmons v.

Wetherall, #163875, dated May 13, 1980, that is VOID

on its face where Plaintiff/Owner, title holder/

prevailing party in two (2) condemnation attempts —

HAS NOT -— been allowed to vindicate his “ABSO-

LUTE” right to procedural Due Process in the primary

sense, - HAS NOT - had an opportunity to present its

case (a-day-in-court) and be heard in its support; where

there is not, has not, was not any court proceedings

(condemnations) instituted after reverting of owner-

ship on March 24, 1972 — nor — the Federal Court

Remand of Simmons v. Wetherall, 472 F.2d 509 (2d

Cir. 1973), against a “TAKING,” seizure by the

United States for a Federal Public Project in the year

of 1962 for which market value as of date of taking

for fair compensation has — NEVER - been ascer-

tained, offered, determined or deposited by neither

the federal nor state acquiring agencies. See Almota

Farmers Elevator & Warehouse v. United States, 409

U.S. 470, 473-74, 93 S.Ct. 791, 794, 35 L.Ed.2d 1

(1973); Brinkerhoff-Faris v. Hill, 281 U.S. 673 (1930);

Armstrong v. Manzo, 380 U.S. 545 (1965); Carey v.

Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252

(1978); Lynch v. Household Fin., 405 U.S. 538, 92

S.Ct. 1611, 31 L.Ed.2d 424 (1972).

Supporting Facts

1. Special Act #170 (1969) Simmons uv.

Wetherall #163875

Where the District Court, Hon. M. Joseph Blu-

menfeld, Chief Judge, recognized and acknowledged

the reason for the Special Act was to allay, foreclose

any further claims of [Sovereign Immunity] and the

Second Circuit Court in Simmons v. Wetherell, 472

F.2d 509 at 512 (2d Cir. 1973) remanded stating — if

the land is in fact Simmons’ and the State indeed has

fenced it off, and pat runway lights on it, without

paying him due compensation or instituting court

proceedings, it would seem that a deprivation of

appellant’s right to “enjoy” the use of his land is

stated. See Lynch, supra, 405 U.S. at 544, 92 S.Ct.

1113.

Citing Brinkerhoff, supra, 281 U.S. at 682 (1930)

~ whether acting through its judiciary or through its

legislature, a state may not deprive a person of all

existing remedies for the enforcement of a right,

which the State has no power to destroy, unless there

is, or was, afforded to him some real opportunity to

protect it. The ORDER of May 31, 2000 (Ex. #10) was

an attempt to [DETRACT] from its Fourteenth

Amendment Constitutional deprivations, and, lack of

JURISDICTION.

2. No-Day-In-Court .

Under Procedural Due Process whereby the

reviewing State Supreme Court cannot, has not

entertained any appeals that are not from a Final

Judgment, or no written Statement of Compensation;

where there was no compliance with C.G.S. § 8-129

(Ex. #15) regards possession of land that is manda-

tory; where the placing of encumbrances on the land

records under plaintiff’s Tort Action, #163875, is

prima facie evidence of no state proceedings being

instituted; where the return to the Treasury of the

“Verbal Slush Fund” (Ex. #9) is prima facie evidence

of no proceedings instituted; where the state agency,

in collusion and conspiracy with the federal agency,

were, and continue, engaging in “LEASING” private

property for decades of denial of compensation, it was

awkward and embarrassing to institute condemna-

tion proceedings (third time) where the owner [DID

NOT] entertain any part of a verbal slush fund or

tender any deeds.

8. Uniform Land Acquisition Policies

Act

Where throughout this decades-long litigation

there was intervening congressional procedures that

superseded all State and Federal procedures (P.L. 91-

646), Uniform Land Acquisition Policies Act of 1970,

effective January 2, 1971, 84 Stat. 1894 and plaintiff

proceeding in two (2) separate 42 U.S.C. § 1983

Federal Court actions, Appeal #72-1541 and #73-

14806 in which jurisdiction was correctly predicated

upon 28 U.S.C. § 1343(3) referencing Lynch v. House-

hold Fin. Corp., 405 U.S. 538, 92 S.Ct. 11138, 31

L.Ed.2d 424 (1972) seeking reimbursement for his

reasonable costs, disbursements and expenses, in-

cluding reasonable attorney, appraisal, and engineer-

ing fees and in Lewis v. Pennington, 400 F.2d\806, 819

(6th Cir. 1968) the “prevailing party is prima facie

entitled to costs”; in Drakes Bay Land Co. v. United

States (CT. — CL. No. 275-66) defendant conceded in

1972 plaintiff is entitled to recover in that case rea-

sonable attorney, appraisal, and engineering fees

actually incurred, and Drakes Bay, supra, is analo-

gous to case at bar in the fact thst the taking was ten

years earlier, the successful prevailing party in

procedural victories, JUSTIFY an award of attorney

fees under 42 U.S.C. § 4654 (304C); the reverting of

title and ownership on March 24, 1972, not with-

standing ten (10) years of occupancy and use by the

United States was an automatic mandate the federal

agency comply with the congressionally mandated

legislation, effective January 2, 1971, per 42 U.S.C.

§ 4601 as principal and the state agency an agent

under 42 U.S.C. § 4628.

4. State or United States Obligation Un-

der Fifth and Fourteenth Amendments

Where plaintiff seeks just compensation for the

use and occupancy of its property by the United

States from July 1, 1962, to present day and beyond,

a period during which plaintiff was deprived of the

use and enjoyment of a part of its land without re-

ceiving compensation either from the United States

or the State and the navigational servitude taking by

the United States was permanent in nature, the

State of Connecticut has made its position clear that

it is the United States’ obligation to address fair

compensation and pay interest, where no compensa-

tion has been made, as expressed in the dialogue of

Carl Roessler, Inc. v. Ives, 156 Conn. 131 at 142, 143

(1968) that reads:

The same result has been reached by the

federal courts in condemnations of land by

the United States Government. “The law is

clear that in eminent domain cases the gov-

ernment, after filing a declaration of taking

and depositing in court the estimated just

compensation, cannot change its mind and

divest itself of the title taken.” Chardler v.

United States, 372 F.2d 276, 278 (10th Cir.

1967). “Broadly speaking, the United States

may take property pursuant to its power of

eminent domain in one of two ways: it can

enter into physical possession of property

without authority of a court order; or it can

institute condemnation proceedings under

various Acts of Congress providing authority

for such takings. Under the first method —

physical seizure — no condemnation proceed-

ings are instituted, and the property owner

is provided a remedy under the Tucker Act

... to recover just compensation ... Under

the second procedure the Government may

either employ statutes which require it to

pay over the judicially determined compen-

sation before it can enter upon the land ...

or proceed under other statutes which enable

it to take immediate possession upon order of

court before the amount of just compensation

has been ascertained ... although in both

classes of ‘taking’ cases — condemnation and

physical seizure — title to the property passes

to the Government only when the owner re-

ceives compensation, see Albert Hanson

Lumber Co. v. United States, 261 U.S. 581,

587 [43 S.Ct. 442, 67 L.Ed. 809], or when the

compensation is deposited into court pursu-

ant to the Taking Act, . . . the passage of title

does not necessarily determine the date of

‘taking’. The usual rule is that if the United

States has entered into possession of the

property prior to the acquisition of title, it is

the former event which constitutes the act of

taking. It is that event which gives rise to

the claim for compensation and fixes the

date as of which the land is to be valued and

the Government’s obligation to pay interest

accrues. See United States v. Lynah, 188 U.S.

445, 470-471 [23 S.Ct. 349, 47 L.Ed. 539];

United States v. Rogers, 255 U.S. 163 [41

S.Ct. 281, 65 L.Ed. 566]; Seaboard Airline R.

Co. v. United States, 261 U.S. 299 [43 S.Ct.

354, 67 L.Ed. 664].” United States v. Dow,

357 U.S. 17, 21, 78 S.Ct. 1039, 2 L.Ed.2d -

1109; see Mastic Acres, Inc. v. State, 46 Misc.

2d 660, 663, 260 N.Y.S. 2d 532.

5. Just Compensation

Instituting Simmons v. Wetherall #163875 was

for claims that plaintiff suffered — substantial —

damages that [must] be heard and determined in the

manner provided by the State Statutes C.G.S. §§ 48-

16, 48-17a and plaintiff being a person displaced due

to a governmental program requiring the acquisition of

real property, and the State Court having a right to

resolve the “FEDERAL QUESTION,” [must], pursuant

to the Uniform Act (PL. 91-646), mandatory on all

states no later than July 1, 1972, requires a state

agency, so acting, to provide reimbursement of certain

expenses such as attorney, appraisal, engineering

fees. The lawless conduct by plaintiff’s counsel

(Rogin-Hirtle) that was in direct conflict with state

statutes and superseding Federal Law reveal that

[Additional Damage] and [infringement of the consti-

tutional rights of plaintiff] was imposed upon plain-

tiff where no notice or opportunity for a hearing was

allowed, permitted, or granted relative to the deter-

mining of fair compensation, no notice or hearing was

allowed, permitted, or granted relative to costs that

included attorney fees; where the record shows the

first brief to the State Supreme Court in October

1978 was submitted under State v. Simmons,

#202121 an injunction action that was dismissed for

failure to prosecute, that was REJECTED by the

State Supreme Court Clerk, who, remarked the briefs

[#9200] could be RE-FILED under Simmons uv.

Wetherall #163875 wherein the matter of JURISDIC-

TION was raised at page 10 and 11 and had to

be addressed when raised, but, was TOTALLY

IGNORED.

From day one DAMAGES is, was that part of fair

compensation that [MUST] be addressed and the

Connecticut Supreme Court having decreed in 1965

that: “Damages sustained in a taking by eminent

domain are to be measured as of date of taking.”

Research Associates, Inc. v. New Haven, 152 Conn.

137, 139, 204 A.2d 833 (1965); Slavitt v. Ives, 163

Conn. 198, 207, 303 A.2d 13 (1972). Under Title III of

PL. 91-646, mandatory on all states, 42 U.S.C.

§ 4655(2) reads: property owners will be paid or

reimbursed for necessary expenses as specified in

sections 303 and 304 (42 U.S.C. §§ 4653, 4654).

In Almota Farmers Elevator & Warehouse Co. v.

United States, 409 U.S. 470, 473-74, 93 S.Ct. 791,

794, 35 L.Ed.2d 1 (1973), the Supreme Court defined

just compensation as follows:

“(Jjust compensation means the full

monetary equivalent of the property taken.

The owner is to be put in the same position

monetarily as he would have occupied if his

property had not been taken.” United States

v. Reynolds, 397 U.S. 14, 16 [90 S.Ct. 803,

805, 25 L.Ed.2d 12] (1970) (Footnotes omit-

ted). See also United States v. Miller, 317 US.

369, 373 [63 S.Ct. 276, 279, 87 L.Ed. 336]

(1943). To determine such monetary equiva-

lence, the Court early established the concept

of “market value”: the owner is entitled to the

fair market value of his property at the time

of the taking. New York v. Sage, 239 U.S. 57,

61 [36 S.Ct. 25, 26, 60 L.Ed. 143] (1915). See

also United States v. Reynolds, supra, [397

U.S.] at 16 [90 S.Ct. at 805]; United States v.

Miller, supra, [317 U.S.] at 374 [63 S.Ct. at

280]. And this value is normally to be ascer-

tained from “what a willing buyer would pay

in cash to a willing seller.” (Miller, supra, 317

U.S. at 374, 63 S.Ct. at 280]. See United

States v. Virginia Electric & Power Co., 365

U.S. 624, 633 [81 S.Ct. 784, 790, 5 L.Ed.2d

838] [1961]. See also United States v. 103.38

Acres of Land, more or less, etc., 660 F.2d 208,

211 (6th Cir. 1981).

Fee Award

Citing Farrar v. Hobby, 506 U.S. 103, 113 S.Ct.

566, 574 (1992): Once civil rights litigation materially

alters the legal relationship between the parties, “The

degree of the plaintiffs overall success goes to the

reasonableness” of a fee award under Hensley uv.

Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d

40 (1983). Indeed, “the most critical factor” in deter-

mining the reasonableness of a fee award “is the

degree of success obtained.” As part of the MOTION

FOR REMAND is the entitlement by the owner of

+ [FEES] congressionally mandated under Title III of

PL. 91-646 and C.G.S. § 48-17a, should be provided

to all persons displaced by a Federal Project.

Supreme Court Order - May 31, 2000, Ex. #10

Under FEDERAL QUESTION, Simmons ov.

Wetherall, #163875 as a tort claim is a “species of

‘property’ protected by the DUE PROCESS

CLAUSE.” Martinez v. California, 444 U.S. 277, 281-

82, 100 S.Ct. 553, 556-57, 62 L.Ed.2d 481 (1980);

where the state cannot by “ipse dixit” transmogrify

the tort action into an eminent domain, see Standard

Oil Co. v. Missouri, 224 U.S. 270, 323 S.Ct. 406, 56

L.Ed. 760 (1912); where the Connecticut Supreme

Court is a REVIEW court by statute of final judg-

ments and not a maker or proclaimer; where in direct

violation of Title III of PL. 91-646, the Fifth and

Fourteenth Amendments of the United States Consti-

tution and Art. 1 § 11 of the Connecticut Constitution

there is [NO PROCESS], the issuance and service of

process or notice is indispensable to the jurisdiction of

the court to determine the adverse claims of parties

to the litigation. Until notice is given to the defendant

of the action as proceedings against him, and he is

thereby given opportunity to appear and be heard,

the Court has no jurisdiction to proceed to judgment

against him — [or CLOSE THE DOORS] - even

though it may have jurisdiction of the subject matter.

One who is not served with process does not have the

status of a party to the proceeding, the parties and

their case must be brought before the Court and this

is accomplished by the use of process. 62 Am. Jur. 2d

Process § 3.

Where, it is not the return but the fact of actual

service that gives courts (including Connecticut

Supreme Court) jurisdiction. Wade v. Wade, 7 A.L.R.

1143 (1918); 21 R.C.L., page 1331, Sec. 79.

Conclusion

It is apparent and crystal clear that throughout

this decades-long litigation, the Petitioner/Owner/

Title Holder has been the victim of COLLUSION and

CONSPIRACY between the Federal and State Agen-

cies engaging in “LEASES” of the subject property

without - EVER — addressing fair compensation as

mandated by 49 C.F.R. § 24.102(d) against federal

projects or federally assisted projects. Each Bureauc-

racy pointing a finger at each other as being contrac-

tually or constitutionally mandated to determine fair

compensation. |

Where the multiplicity of every type of action

possible has been submitted to the United States

Supreme Court for relief where there is [NO CASE]

in any state or federal court regarding the subject

property since March 24, 1972; where there is no

Docket number, judgment or process in any court,

there cannot be any OUT-OF-TIME against a JU-

RISDICTION challenge as expressed in Harris v.

Hardeman, 55 U.S. 334 (1852).

Petitioner pleads under the rudiments of justice

for an opinion as stated in Joinz Anti-Fascist Refugee

Comm. v. McGrath, 71 S.Ct. at 652, expressing:

Notice and opportunity to be heard are fundamental

to due process of law. We would reverse these cases

out of hand if they were suits of a civil nature to

establish a claim against petitioners.

Respectfully submitted,

/s/ Augustus Simmons

Augustus Simmons

P.O. Box 1

Windsor, CT 06095

(860) 569-6714

REASONS WHY WRIT SHOULD ISSUE

1. The Real Federal Question of grave public

importance, for which petitioner seeks a Writ of

Mandamus was the abdication of the judicial function

depriving the parties of a trial before the court on the

basic issues involved in the litigation with “the per-

sistent wholesale disregard of the Due Process Clause

* * * prescribed by the Fifth and Fourteenth Amend-

ments.”

2. The judgment of a court without jurisdiction

is a nullity. Such a judgment, whenever and wherever

declared upon as a source of right, may always be

challenged. This does not offend the full faith and

credit clause of the Federal Constitution, nor does it

violate the principles of comity. Samson v. Bergin, 138

Conn. 306 (1951).

3. Where Congress in the All Writs Act con-

ferred on the courts the review power, to be used only

in the exceptional case where there is clear abuse of

discretion or “usurpation of judicial power”; petitioner

alleges the usurpation of judicial power by the Con-

necticut Supreme Court (not Superior Court) is of the

sort held to justify the Writ of Mandamus in the case

of DeBeers Consolidated Mines v. United States, 325

U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566

(1945).

4. It is crystal clear that there - WAS NOT -

any proceedings instituted by the State Agency after

March 24, 1972 (date of reverting ownership) against

the subject property; there - WAS NOT —- IS NOT -

any docket number, pleadings, decrees, judgments on

Superior Court records that is substantiated by the

court invoking Shelton v. Wolthausen, 80 Conn. 599

(1908) (Exs. #7 and 7(a)), denying attorney fees to the

discharged and legally withdrawn private counsel

(Rogin-Hirtle) wherein, whereby, the court can only

dispose of money put into court through the medium

of proceedings had in or relating to that cause.

5. It is crystal clear that a quarter century ago

on June 7, 1982, the State (Attorney General’s Office)

in Superior Court, before Hon. DuPont, A., challenged

the court with lack of subject matter jurisdiction; it is

crystal clear that on that same court hearing, counsel

for two lien-holders (Valente-Allaire), private counsel

Bass, W., challenged the court with [NO] notice or

service on him or his clients; it is crystal clear that no

judgments can be rendered — without any service — or

— without the parties before the court, (see Jepsen v.

The Toni Co., 20 Conn. Supp. 287, 133 A.2d 150

(1957)); it is crystal clear Rule 70 of the Rules of Civil

Procedure, which permits the issue of a writ of at-

tachment or sequestration against the property of a

disobedient party to compel.satisfaction of a judg-

ment, is operative only after a judgment is entered; it

is crystal clear that where there was a Federal taking

for a Federal Project — as in case at bar, the Connecti-

cut Supreme (Reviewing) Court pursuant to C.G.S.

§ 13b-50, Sec. d must review for compliance with

Federal Rules of Procedure; it is crystal clear that

when the Supreme Court has no judicial power to do

what it purports to do — when its action is not mere

error but usurpation of power — the situation falls

precisely within the allowable use of the Mandamus

Writ.

6. Where the National Government is guardian

of a public right of access to navigable airspace of the

United States; the navigational servitude is the legal

formula by which we recognize the paramount nature

of this government responsibility that has exclusive

jurisdiction of certain navigational instrumentation

on the surface of private property of plaintiff, the

United States must be a necessary party to any such

judgment, or other procedure, and if the government

physically invades only an easement in property, it

must nonetheless pay compensation. United States v.

Causby, 328 U.S. 256, 265 (1946).

7. It is Hornbook Law that “any judgment

should conform to pleadings, issues and prayers for

relief” Kawasaki, Kissen, Kaisha, Ltd. v. Indomar,

Ltd., 173 Conn. 269, 377 A.2d 316 (1977); Brill v.

Ulrey, 159 Conn. 371, 269 A.2d 262 (1970); Morici v.

Jarvie, 137 Conn. 97, 75 A.2d 47 (1950): Shaw v.

Spelke, 110 Conn. 208, 147 A. 675 (1929); Steznmetz v.

Steinmetz, 125 Conn. 663, 7 A.2d 915 (1939). The

Connecticut Supreme Court had occasion t%, discuss

this principle in New Haven Sandblast Co. v. Dreis-

bach, 104 Conn. 322, 330, 133 A. 99 (1926). In that

case, the court stated: A defect in a judgment arising

from the fact that the matter decided was not em-

braced within the issue has not, it would seem, re-

ceived much judicial consideration. And yet, I cannot

doubt that, upon general principles, such a defect

must avoid judgment.

8. It is unmistakable from the plain language of

42 U.S.C. § 4655 that the [STATES] must comply with

the land acquisition procedures specified in § 4651

regardless of whether persons are displaced from their

homes — or — farms, as a result of the land acquisition.

It is undisputed that the acquisition of the subject

property by United States [IS] — [WAS] a necessary

incident to the construction of the navigational servi-

tude. The ruling by the Connecticut Supreme Court of

a “three dollar bill judgment” was ARBITRARY, UN-

REASONABLE, UNCONSTITUTIONAL, and in direct

violation of mandatory Federal Law whereby the

state [MUST] comply with § 4651 to the greatest

extent legally possible under State Law, notwith-

standing that such compliance may he “UNECO-

NOMICAL.” See City of Columbia, S.C. v. Costle, 710

F.2d 1009 (4th Cir. 1983)"

9. What the Constitution does require is an

opportunity * * * “granted at a meaningful time and

in a meaningful manner,” Armstrong v. Manzo, 380

U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62

(1965), “For [A] hearing appropriate to the nature of

the case,” Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. at 313, 70 S.Ct. at 657. In short, “within

the limits of practicability,” a state must afford to all

individuals a meaningful opportunity to be heard if it

is to fulfill the promise of the Due Process Clause, 70

S.Ct. at 659.

10. Where it is a well-established rule that the

court will not quash a writ of attachment execution or

foreign attachment unless some fundamental irregu-

larity appears on the face of the record, yet it is a

recognized exception to that rule that evidence dehors

the record may be a ground for quashing a writ where

defects therein are of such a character to put plaintiff

completely out of court. Pasquinelli v. Southern

Macaroni Mfg. Co., 272 Pa. 468, 116 A. 372 (1922).

The present case comes within the exception therein

indicated, viz, “that the property in question is, by

use, statute, and the federal regulation, exempt from

attachment.” The fact that the National Government

has not made any compensation — does not permit

subject property to attachment.

11. Where the courts have held that the absence

of a citation rendered the appeal fatally defective and

the statute governing appeals (§ 16-37) specifies that

the appeal shall be brought by a complaint in writing,

“with a proper citation, signed by competent author-

ity.” The citation thus required is a command to an,

officer to summon the defendant to appear in court to |

answer the complaint. The lack of a citation consti-

tutes more than a circumstantial defect. See Village

Creek Homeowners v. Public Utilities Comm., 148

Conn. 336 (1961).

12. Collusion between a party’s attorney and

the adverse party is a species of FRAUD for which

relief may be obtained. (Citations omitted).

13. For the above stated reasons, petitioner

respectfully requests that a writ of mandamus [or

“and in the alternative a writ of prohibition or writ of

mandamus”] issue out of this court directed to the

respondents requiring [them] to.

RELIEF SOUGHT

1. Where United States Government Contrac-

tor’s entry on plaintiff's land, effectively appropriated

lands in connection with and pursuant to congres-

sional authorization under 49 U.S.C. § 44502, were

authorized acts of government and constituted “tak-

ing” by the United States of plaintiff’s Real Estate

and Vested Rights; in addition to taking of easements

of the air space, analogous to United States v. Causby,

328 U.S. 256 (1946), giving rise to obligation to pay

owner fair rental value (compensation) from date of

taking where the government policy has continually

been to negotiate 20-year leases, in lieu of acquiring

the fee, [RELIEF] sought under the Fifth Amendment

is that negotiations [must] transpire with the owner

and not the trespasser.

2. The usual rule being that if the United

States (not the state) has entered into possession of

subject property, it is that event which gives rise to

the claim for compensation and fixes the date as of

which the land is to be valued and the government's

obligation to pay interest accrues; NOTWITH-

STANDING any pleas of 1955 Grant Agreements of

which the owner was never a party to; NOTWITH-

STANDING any pleas of LEASES between the co-

conspirator and trespasser, NOTWITHSTANDING

the fact there was [never] the establishment and

written offer of just compensation as mandated by 49

C.FR. § 24.102(d), [RELIEF] sought under the Tucker

Act (Docket 02-301 L) and DENIED, the common-law

writ of mandamus, as codified in 28 U.S.C. § 1361, is

intended to provide a remedy for a plaintiff only if he

has exhausted all other avenues of relief and only if

the defendant owes him a clear nondiscretionary

duty. See Kerr v. United States District Court, 426

U.S. 394, 402-403, 96 S.Ct. 2119, 2123-2124, 48

L.Ed.2d 725 (1976); United States ex rel. Girard Trust

Co. v. Helvering, 301 U.S. 540, 543-544, 57 S.Ct. 855,

857, 81 L.Ed. 1272 (1937).

RELIEF in case at bar by mandamus to VACATE

AND REMAND is pleaded where Federal and State

courts have a clear nondiscretionary duty under the

Due Process Clause, at a minimum, requires that

deprivation of life, liberty, or property by adjudication

be preceded by notice and opportunity for hearing

appropriate to the nature of the case. U.S.C.A. Const.

Amend. 14.

3. Relief in case at bar by mandamus to vacate —

REMAND - vacature of attachments is pleaded where

the government — in BAD FAITH — has continually,

deliberately relied on the egregious constitutional

misconduct of the agent to — not paying — a dime.

Citing Shoemaker v. United States, 13 S.Ct. 361, 375

(1893): “That the government is bound to make just

compensation for whatever it shall take from the

individual is undoubted; and in the words of the

Supreme Court in Great Falls Manufacturing Co. v.

Attorney General, 124 U.S. 596, 8 S.Ct. 631 (1888): ‘It

is to be assumed that the United States is incapable of

BAD FAITH, and that Congress will promptly make

the necessary appropriations whenever the amount of

compensation has been ascertained in the mode pre-

scribed.’” Citing Shoemaker, supra, at 383: “The court

has no discretion. It is the duty of the court to ascer-

tain the value of the land embraced in the recorded

map which is selected and condemned. If the court

should decline to discharge that duty, the commission

would be entitled to a MANDAMUS to compel it.”

Additionally at p. 383:

“It is a universal rule that this proceeding

shall in some form or other be subject to ju-

dicial supervision, so that the constitutional

rights of the citizen shall not be infringed;

that is, he shall have a hearing, and his

property shall be fairly estimated, and not

taken from him without adequate compensa-

tion being paid to him.”

Dated: February 29,2008 Respectfully submitted,

AUGUSTUS SIMMONS

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

In the Supreme Court of Connecticut

AUGUSTUS J. SIMMONS,

Petitioner

vs.

CONNECTICUT DEPARTMENT OF

TRANSPORTATION FEDERAL AVIATION

ADMINISTRATION ROGIN, NASSAU & HIRTLE,

ESQUIRES CONNECTICUT AIR GUARD

JOHN MALONE, ESQUIRE,

Respondents

Augustus J. Simmons, the Above-Named

Petitioner/Owner/Title Holder

Respectfully Shows:

[SECOND] MANDAMUS APPLICATION

To the Honorable Judges of

The Supreme Court of Connecticut

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

Petitioner/Owner/Title Holder

App. 2

SECOND MANDAMUS APPLICATION

1) NO HEARINGS - FINALITY - ORDER 5/31/00

In further demand for relief by the owner of a

MANDAMUS to REMAND ~— NOT for a “NEW

TRIAL” — but, for a “DAY IN COURT” where the

object, purpose, constitutional mandate of the Special

Act #170 (1969) that materialized into Simmons uv.

Wetherall, Docket 163875 (1970) tort action, was, an

additional mandate, reinforced by Title III (42 U.S.C.

§§ 4651-4655) mandating that fair and just compen-

sation in the form of DAMAGES, [SHALL] be ad-

dressed against two (2) null and void condemnations,

dirty tricks by the dozen such as erecting a snow

fence for ten (10) years across the frontage of Parcel

“A” that the court ruled was not necessary for airport

operations, pilfering of all building material from

private property and using the cinderblocks to ex-

pand the Murphy Terminal Building, and Attorney

Hirtle, R., of the Rogin-Hirtle Law Firm notifying the

owner by phone, before filing an appearance on

12/13/77 that: the Rogin Law Firm was “NOT GOING

TO TRY THE CASE”, and, when challenged by

owner’s replacement counsel (Robert King) on Janu-

ary 4, 1978 as to why damages were not going to be

addressed; the answer, as the record shows for NO

hearings, NO litigation on the merits, NO decisions,

NO eminent domain process initiated or instituted by

the State Agent (C.D.O.T.), who, per 42 U.S.C. § 4628

was acting as agent for a FEDERAL PROGRAM; the

absurd unconstitutional answer (defense) for not one

(1) dollar compensation, in gross violation of the 5th

App. 3

and 14th Amendments was: “He is an alcoholic, he

will not know the difference.”

Regards Finality and the Supreme Court Order

- of 5/31/00, Petitioner/Owner/Titleholder submits the

United States Supreme Court interpretation of Final-

ity that reads: “A ‘Final Decision’ generally is one

which ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment”,

Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct.

631, 633, 89 L.Ed. 911 (1945).

2) SUPREME COURT JURISPRUDENCE -

TITLE

Petitioner/Owner/Titleholder excerpts from Cava-

naugh v. Richichi, 100 Conn. App. 466 (2007). The

State Supreme Court jurisprudence regarding the

conveyance of Title beginning on page 468: “On

appeal, it is the function of this court to determine

whether the decision of the Trial Court is clearly

erroneous ... This involves a two part function:

where the legal conclusions of the Court are chal-

lenged, we must determine whether they are legally

and logically correct and whether they find support in

the facts set out in the memorandum of decision .. . “

(citation omitted.) Pandolphe’s Auto Parts, Inc. uv.

Manchester, 181 Conn. 217, 221-22, 435 A.2d 24

(1980). When reviewing the factual basis of a Trial

Court’s decision, our role “is to determine whether

[those] facts ... are supported by the evidence or

whether, in light of the evidence and the pleadings in

App. 4

the whole record, [they] are clearly erroneous ... On

appeal, [our] function ... is limited solely to the

determination of whether the decision of the Trial

Court is clearly erroneous ... A finding of fact is

clearly erroneous when there is no evidence in the

record to support it ... or when although there is

evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm

conviction that a mistake has been committed ...

[W]e do not retry the facts or pass on the credibility of

witnesses.” (Citations omitted; internal quotation

marks omitted.) Wren v. MacPherson Interiors, Inc.,

69 Conn. App. 349, 353-54-794 A.2d 1043 (2002).

Our jurisprudence regarding the conveyance of

title is well established. The “[dJelivery of a deed

coupled with intent by the grantor to pass title is

necessary for a valid conveyance . . . The delivery of a

deed includes not only an act by which the grantor

parts with the possession of it, but also a concurring

intent on the part of the grantor that it shall vest the

title in the grantee ... Both elements involve ques-

tions of fact for the trier of fact.” (Internal quotation

marks omitted.) Young v. Young, 78 Conn. App. 394,

398 n5, 827 A.2d 722 (2003); see McCook v. Coutu, 31

Conn. App. 696, 701, 626 A.2d 1321, Cert. denied, 227

Conn. 911, 632 A.2d 692 (1993); see also Lomartira v.

Lomartira, 159 Conn. 558, 561, 271 A.2d 91 (1970).

App. 5

3) IPSO-FACTO-VOID [CONDUCT-CLAIMS]

Wherein . . . The malicious, tortious, bad faith Rogin-

Hirtle, Esq’s. Law Finn, with no gun to their back or

club to their head - [AGREED, SIGNED] -— to take

over the contingency fee arrangement of Atty. David

Salzman of New Haven, CT, who exited from the

practice of law, after, successfully litigating a judg-

ment by Referee Shapiro, L. on Superior Court re-

cords on 1/17/77 under Docket #162923 that was

[torpedoed, shanghaied on 12/13/77], and the owner

had ‘anted’ up the contingency agreement to 38%

toward anticipated hearings of the tort action under

Docket #163875, and, with Title III of Federal Law

(42 U.S.C. §§ 4651-4655) MANDATING DAMAGES

(compensation) must (shall) be heard; MANDATORY

on every state in the union by the Uniform Act (P.L.

91-646 (1971) ... the FACT that Atty. Hirtle, R.,

[PHONE CALLED], before the ink was dry on the

contract agreement to inform the owner the Rogin-

Hirtle Law Firm ... [WAS NOT GOING TO TRY

THE CASE] ... However, the record shows an ap-

pearance was filed on 12/13/77 to wreak havoc, plun-

der, — in concert and collusion with the State Agent —

every active state and federal court case ... The

record shows a DISCHARGE (Ex. #4) on 12/23/77...

There is [NO RECORD] of the agent — C.D.O.T. —

initiating, instituting any eminent domain process, of

any nature, after 3/24/72 that would give the courts

(State, Federal or Connecticut Supreme Court) sub-

ject matter jurisdiction, jurisdiction of the parties, or

of the process... AND... this FACT was argued [by

App. 6

the STATE] before the Superior Court, Hon. DuPont,

A. presiding on 6/7/82 ... A quarter of a century ago

...” It is an acknowledged principle of ... every

court in the world, that not only the decisions, but

everything done under the judicial process of courts

not having jurisdiction are IPSO FACTO VOID.” 14

U.S. (1 Wheat) 304, 364, 4 L.Ed. 97 (1816); Chrysler

Credit Corp. v. Fairfield Chrysler Plymouth. Inc., 180

Conn. 223, 229, 429 A.2d 487 (1980).

4) CITATION - PARTIES - PROCESS

With — [NO] — CITATION in evidence — or — on

the record that notice or service was made on all

necessary parties; with — [NO] - EMINENT DOMAIN

CONDEMNATION ... reinstituted ... a third time

upon the owner not entertaining a “ridiculous verbal

offer” or “tendering any deeds”; where the record

shows a discharge of the corrupt, malicious, tortious,

private counsel (Rogin-Hirtle, Esq.’s) on 12/23/77 (Ex.

#4); A second discharge on April 12, 1978; A legal

withdrawal on April 19, 1978 (Ex. #6), with — [NO] —

record of any proceedings under procedural statute

C.G.S. § 8-129 (Ex. #15); The Connecticut Supreme

Court could not, should not, have entertained, an

appeal with [NO CITATION], [NO PROCEEDINGS]

in evidence or on the record.

Applying the functions as detailed by the Court

in #2 of this SECOND MANDAMUS APPLICATION

... It was grossly UNCONSTITUTIONAL (where a

Federal Taking and Program is at issue) for the

App. 7

State’s highest court to [try] — or — declare — or —

claim a judgment (stipulated or supplemental),

where, on December 23, 1977, ten days after filing an

appearance as Owner/Titleholder’s Counsel, the

Rogin-Hirtle Law Firm was charged with a MISPRI-

SION OF A FELONY via a DISCHARGE. (Ex. #4).

Applying the functions as detailed by the Court

in #2, and, this very same court having ruled on the

very same subject matter in 160 Conn. 492 (1971)

that: “The prescribed method of taking must be

followed”, and, Where the U.S. Supreme Court in

Standard Oil v. Missouri, 224 U.S. 270, 32 S.Ct 406,

56 L.Ed. 760 (1912) made exceedingly clear the Court

[cannot] by “IPSE DIXIT” - [TRANSMOGRIFY] - a

private tort action into a public eminent domain

action ... RELIEF, pursuant to the mandate of the

5th and 14th Amendments of “Nor shall private

property be taken without just compensation”, man-

dates compliance with the MANDAMUS APPLICA-

TION of a REMAND and wiping the record clear of

the State Reviewing Court acting without jurisdiction

of the Subject Matter, the Parties, or the Process.

5) MISPRISION OF A FELONY - OBSTRUC-

TION OF JUSTICE - DESTROYING EVI-

DENCE

PLAINTIFF/OWNER having brought several

causes of action to both the State and Federal Courts

seeking basic relief of “LEGAL COMPENSATION”

where federal participation is apparent by a federal

App. 8

taking, a federal project of substantial public impor-

tance is at issue; federal funds had been appropriated

to the project in 1955, but, never paid or deposited

with the Court (See Ex. #11); The paltry $15,000.00

deposit by the State in concert with the two condem-

nation attempts was returned to the Treasury; all

condemned property reverted back to the owner on

3/24/72, putting it back on the TAX LIST ... The

basic issue [FEDERAL QUESTION] before the Court

(IS) (WAS) (REMAINS): DOES THE FEDERAL

REGULATIONS AND STATUTES PROMULGATED

PURSUANT TO THE UNIFORM ACT OF 1970, P.L.

91-646, 84 STAT 1894, BECOME EFFECTIVE IM-

MEDIATELY.

In the case of Simmons v. Wetherall, #163875

there is the obvious question as to (1) The constitu-

tionality of the state action — or [inaction], and (2)

whether the officials or parties involved have com-

plied with Federal Regulations and State Statutes,

and (3) where land that was not acquired legally by

failed condemnations, was attempted subversively by

destroying evidence and obstruction of justice that

was MISPRISION OF A FELONY by state officials,

acting in concert and collusion with plaintiff’s dis-

charged and legally withdrawn private counsel

(Rogin-Hirtle, Esq.’s); which sub-rosa, plundering

activity, was rejected by the Superior Court on August

30, 1979 (Ex. #7 & 7a) - BUT - given a stamp of ap-

proval (constitutionality) by the Connecticut Supreme

Court under Simmons v. Wetherall, #163875, 180

Conn. 587 (1980), a case that never had a hearing, no

App. 9

pleadings, no day in court, no written statements, no

notices or service to interested and necessary parties,

no ascertainments of “fair and just” compensation as

guaranteed by the 5th and 14th Amendments, AND,

49 C.FR. section 24.102 (L) of BASIC ACQUISITION

POLICIES (Ex. #3) regards Inverse Condemnation

reads: “If the agency intends to acquire any interest

in real property by exercise of the power of eminent

domain, it shall institute formal condemnation pro-

ceedings and not intentionally make it necessary for

the owner to institute legal proceedings to prove the

fact of the taking of the real property.”

6) OBSTRUCTION OF JUSTICE - DESTROY-

ING EVIDENCE

a) The Rogin-Hirtle Law Firm, having retracted

from “trying the case on its merits,” yet, filing an

appearance for the sole purpose of — plundering —

Docket #162923 that was an ejectment action against

the Federal Agency acting in bad faith by engaging in

leasing with the TRESPASSER (State Agency).

b) Wherein the judgment awarded rental for the

years of 1964-1969; plaintiff was to be reimbursed for

appraisal and engineering fees and the malicious,

tortious private counsel could not, constitutionally

and by the Practice Book, DEFEAT, DENY, MAKE

INEFFECTIVE, a valid judgment on court records

twelve months prior; obstructing justice in the most

basic sense of ... CONTINUING COMPENSATION

DEPRIVATION ... where FINALITY was determined

App. 10

on or about July 1, 1962 by the invasion, appropria-

tion, TAKING by the United States, without condem-

nation, BUT, cannot do so without payment of

compensation.

c) Wherein the discharged and legally with-

drawn private counsel, in tandem and collusion with

the trespassing state (agent) who never instituted

any mesne process, place a 1.12 acre parcel A/K/A

Parcel “D” of rerouted federal-aid highway Rte. #20

on 6/5/78 in [IPSE DIXIT] manner on the land re-

cords of an [incomplete] taking in 1957 ... without

one dollar compensation, or interest, or hearing, or

put before the Court as required by statute ... (IS),

(WAS) FELONIOUS CONDUCT that ... MAN-

DATES a REMAND for compliance with the 14th

Amendment for a determination of INTEREST and

value that was applied to the partial taking of .033

acre in 1957, as shown on Town of East Granby land

records.

d) Wherein the discharged and legally with-

drawn private counsel, in tandem and collusion with

the trespassing state (agent) who never instituted

any mesne process ... NEVER determined or ascer-

tained just or fair compensation as of date of taking

by the United States ... in violation of BASIC AC-

QUISITION POLICY MANDATE under 49 CFR

§ 24.102 mandating appraisals - BEFORE — making

an offer.

e) Wherein the ... plundering ... by the dis-

charged counsel included a scheme or artifice to

App. 11

nullify two (2) active federal court cases, one of which

was a “1983” Civil Rights Action (472 F.2d 509 (1973))

reported favorably, but vemanded until Docket

#162923 was concluded, and Docket #162923 reported

favorably to the Superior Court . . . was also nullified

— in direct violation of the Fifth and Fourteenth

Amendments ... Wherein the Connecticut Supreme

Court — applies — assigns — dignifies — decrees — such

gross [UNCONSTITUTIONAL NULLIFYING AC-

TIVITY) -— A Judgment, A Stipulated Judgment, A

Supplemental Judgment to — shield — cover-up —

shelter the Federal Taking by the United States, and,

the continual [BAD FAITH] “LEASING” by the two

trespassing bureaucracies.

f) Without question, the evidence [RECORD]

must show a United States v. Simmons or State of

Connecticut v. Simmons for an effective, legitimate,

constitutional acquisition of the subject real property

with a federal installation thereon.

g) Condemnation is a means by which the

sovereign may find out what any piece of property

will cost. Danforth v. United States, 308 U.S. 271,

284, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939).

h) Wherein the Connecticut Supreme Court has

expressed the position of the United States Supreme

Court relative to a governmental regulation or action

that has deprived a claimant of his property without

just compensation was illuminated to justify their

review was [fact-dependent] in Gil v. Inland Wetlands

Agency, 219 Conn. 404 at page 406 (1991) that reads:

App. 12

As the United States Supreme Court has observed,

whether a claim that a particular governmental

regulation or action taken thereon has deprived a

claimant of his property without just compensation is

an “essentially ad hoc factual inquir[y].” Penn Central

Transportation Co. v. New York City, 4388 U.S. 104,

124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1977), reh. de-

nied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198

(1978); see also Keystone Bituminous Coal Assn. uv.

DeBenedictis, 480 U.S. 470, 473-74, 107 S.Ct. 1232,

94 L.Ed.2d 472 (1987); Pennsylvania Coal Co. v.

Mahon, 260 U.S. 395, 413, 43. S.Ct. 158, 67 L.Ed. 322

(1922).

{NO] FACTS are in evidence or on the record in

Simmons v. Wetherall, #163875 which is substanti-

ated by (Ex. #7 & 7a) dated 8/30/79, further substan-

tiated by the return of illegal funds to the Treasury

or 10/15/91 (Ex. #9); wherein it is an actual FACT

there was — NEVER - any determination, ascertain-

ment or hearings against the constitutional require-

ment of damages and just and fair compensation

dating back to 7/1/62, and, the novel explanation

(defense) on January 4, 1978 from plaintiff’s former

counsel (Rogin, E., Sr.) who was discharged on

12/23/77, and, when questioned by replacement

counsel (King, R., Esq.) as to why no hearings — the

reply: HE IS AN ALCOHOLIC, HE WILL NOT

KNOW THE DIFFERENCE.

i. Where our U.S. Supreme Court has observed

and ruled that: ““The owner is protected by the rule

that title does not pass until compensation has been

App. 13

. ascertained ... and paid ...’” Albert Hanson

Lumber Co. v. United States, 261 U.S. 581, 587

(1923). The government — cannot — defer the deposit

of funds in court in order to compel an agreement on

the price of the property (See Ex. #13) — for forty-five

(45) years.

Federal Regulation 42 U.S.C. § 4651(7) that

clarifies the Fifth Amendment requirement states: In

no event shall the head of a Federal agency either

advance the time of condemnation, or defer negotia-

tions or condemnation and the deposit of funds in

court for the use of the owner, or take any other

action coercive in nature, in order to compel an

agreement on the price to be paid for the property.

7) 5th & 14th AMENDMENT COMPENSATION

Wherein ... The State Agent (C.D.O.T.) took

some [numbers] off the wall ... off the clock on the

wall to make a verbal offer ... without initiating or

instituting any process — in lieu of the mandatory

constitutional mandate of establishing of value — [as

of date of taking] — by the United States in the year of

1962 — by appraisals or LODESTAR ... BEFORE...

making an offer, and, INTEREST must be considered

where the United States has never offered or depos-

ited a DIME ... It is a crystal clear FACT the Con-

necticut Supreme Court sanctioning, putting its

stamp of approval on such felonious conduct makes

the reviewing court a — CO-CONSPIRATOR - of a

scheme or artifice to deny fair and just compensation.

App. 14

8) SIMMONS V. WETHERALL, #163875

Wherein ... It is an UNDISPUTABLE FACT

Docket #163875 is a private tort action .. . It is [NOT]

a state action ... It is an UNDISPUTABLE FACT

there [was not] a single hearing, a day-in-court

against the extraordinary injury, harm, expense of

the concurrent null and void condemnation[s] during

the first ten (10) years of occupancy and use; It is an

UNDISPUTABLE FACT that the State Agency pre-

vailed upon the Legislative Branch of the General

Assembly to incorporate, in 1971, C.G.S. § 48-17 a, b,

c to correspond with Title III of Federal Regulations

(42 U.S.C. §§ 4651-4655) — mandating - HEARINGS

IN DAMAGES for fair and just compensation ... It is

an UNDISPUTABLE FACT the reviewing Connecti-

cut Supreme Court ... CANNOT ... [sua sponte]

after pending for thirty (30) years (1970-2000) to

FORECLOSE, DEPRIVE, DENY, the guaranteed just

compensation under the Fifth and Fourteenth

Amendments with its order of 5/31/2000 (Ex. #10) of

[No more pleadings under #163875]. ;

9) ORDER

Wherein ... It is an UNDISPUTABLE FACT

that under our American Jurisprudence . .. Compen-

sation must be paid from ... DATE OF TAKING ... It

is an UNDISPUTABLE FACT that where the taking

was a Federal Taking . . . for a Federal Project, Federal

Rules and Regulations apply — notwithstanding any

other State Law ... It is an UNDISPUTABLE FACT

App. 15

that when the C.D.O.T. was going to make an offer in

December, 1977, Compliance with the basic acquisi-

tion practices [49 C.F.R. § 24.102 (Ex. #3) was manda-

tory - BEFORE — making an offer, in writing. It is an

UNDISPUTABLE FACT, acknowledged by the State

on 6/7/82 in Superior Court, that, [NO] state apprais-

als or ascertainments of fair and just compensation

were ever made as of Taking Day — or any other day

. It is an UNDISPUTABLE FACT that since

3/24/72, neither the State or Federal Agencies have

instituted any Eminent Domain Process in any State

or Federal Court to acquire rights to the subject

property, and, clear the land records of lien-holders

(necessary parties).

Wherefore: Petitioner, Owner, Titleholder —

pleads, orders, demands the Connecticut Supreme

Court remand to the Superior Court, pursuant to the

Fifth and Fourteenth Amendments ... The produc-

tion of a WRITTEN STATEMENT based on apprais-

als — or —- LODESTAR.

Wherefore: Owner, Titleholder — pleads, demands

the Connecticut Supreme Court remand to the Supe-

rior Court — for execution — of the judgment of Refe-

ree Shapiro (1/17/77) of Docket #162923, wherein the

felonious, tortious conduct of the Rogin-Hirtle Law

Firm was to literally relegate the thirty (30) day trial

to the -ASH CAN.

Wherefore: The Connecticut Supreme Court re-

mand to the Superior Court, concurrent with its decree

of 160 Conn. 492 (1971) of identical circumstances, an

App. 16

ORDER of DELETION from the land records, mat-

ters that were never submitted to Superior Court

regards Practice Book and constitutionality.

Respectfully submitted,

/s/ Augustus Simmons

Augustus Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

CERTIFICATE OF SERVICE

Petitioner/Titleholder/Owner hereby certifies

copies of this [SECOND MANDAMUS APPLICA-

TION] to the Supreme Court of Connecticut — in

support and further amplification of Demand to

Remand and VACATE ATTACHMENTS dated No-

vember 10, 2005, have been mailed, postage prepaid,

this 23rd day of October, 2007, to all parties listed

below.

Marion C. Blakey John Malone, Esq.

Federal Aviation State Attorney’s Office

_Administrator 111 Phoenix Ave.

800 Independence Ave.,S.W. Enfield, CT 06082

Washington, D.C. 20591

Paul D. Clement Paul Pernerewski

Solicitor General Assistant Attorney General

950 Pennsylvania Ave., N.W., P.O. Box 317546

Room 5614 Newington, CT 06131-7546

Washington, D.C. 20530-0001

App. 17

Ralph Carpenter, Chief Clerk

Commissioner Superior Court

Connecticut Department 95 Washington Street

of Transportation Hartford, CT 06106

2800 Berlin Turnpike

P.O. 317546

Newington, CT 06131-7546

Rogin, Nassau, Caplan, Major George Warrall

Lassman & Hirtle, Esq.’s Connecticut Air Guard

City Place I 360 Broad Street

Hartford, CT 06106 Hartford, CT 06105

/s/ Augustus Simmons

Augustus Simmons

P.O. Box 1

Windsor, CT 06095

(860) 569-6714

Date returned: 10-23-07 SGAAG # 163875

Augustus J. Simmons __ vy. Wetherall

The following papers: (Second) Mandamus Application

are being returned per P.B. §62-7 for the reason(s)

indicated:

1. Originals are needed and/or papers are not

signed.

2. Certification of service per P.B. §62-7, Motions

require certification on the original and all cop-

ies.

Exceeds number of pages allowed by P.B. § :

10.

11.

13.

14.

App. 18

Our records do not disclose an appeal captioned

as the enclosed.

Motion returned — not in compliance with PB.

866-2 (format); and/or §66-3 (font & margins).

Certification should contain reference to §66-3

and should be on the original and all copies.

Requires permission of the court.

Requires permission of the court. There is no

provision in the practice book which provides for

the filing of such a document.

Case withdrawn/dismissed.

An endorsed copy of the appeal form is required.

P.B.§63-3.

Failure to pay the $70.00 filing fee as required by

C.G.S. § 52-259c.

Fees are payable in the trial court. The Appellate

Clerk’s Office does not accept cash, checks or

money orders.

Motions to Withdraw Appearance require rea-

sonable notice be given to the party being repre-

sented. See P.B. §62-9.

Brief returned — not in compliance with P.B. §67-

2 (Only Arial, or Univers type is allowed.)

Electronic version of transcript may be filed by

court reporter/monitor only.

Other See attached order dated

May 31, 2000

App. 19

FOR INFORMATION ON THE CONNECTICUT -

RULES OF APPELLATE PROCEDURE SEE:

http//www,jud.state.ct.us/pb.htm and

http//www.iud.state.ct.us/Publications/appellatehandbook.

pdf

ALL DOCUMENTS MUST BE RECERTIFIED TO

ALL COUNSEL AND PRO SE PARTIES WHEN

REFILED.

APPELLATE CLERK’S OFFICE

231 CAPITOL AVENUE

HARTFORD, CT 06106

860-757-2200 Fax 860-757-2217

STATE OF CONNECTICUT

SUPREME COURT

NO. HHD CV70-0163875S

AUGUSTUS J. SIMMONS

HORACE B. WETHERALL ET AL. MAY 31, 2000

ORDER

THE MOTION OF THE PLAINTIFF, FILED

MAY i, 2000, TO VACATE, HAVING BEEN PRE-

SENTED TO THE COURT, IS HEREBY ORDERED

DISMISSED.

IT IS FURTHER ORDERED THAT THE

PLAINTIFF IS HEREBY PROHIBITED FROM

App. 20

FILING PLEADINGS IN THIS COURT THAT

ARE RELATED TO DOCKET NUMBER CVv70-

0163875.

BY THE COURT,

/s/ Francis J. Drumm

CHIEF CLERK

NOTICE SENT: MAY 31, 2000

AUGUSTUS SIMMONS, PRO SE

PAUL K. PERNEREWSKI,

ASSISTANT ATTORNEY GENERAL

ROGIN, NASSAU, CAPLAN, LASSMAN & HIRTLE

CLERK, HARTFORD J.D.

HON. JOHN J. LANGENBACH

App. 21

No. 163875

In the Supreme Court of Connecticut

AUGUSTUS J. SIMMONS,

Petitioner

vs.

CONNECTICUT DEPARTMENT OF

TRANSPORTATION FEDERAL AVIATION

ADMINISTRATION ROGIN, NASSAU & HIRTLE,

ESQUIRES CONNECTICUT AIR GUARD

JOHN MALONE, ESQUIRE,

Respondents

Augustus J. Simmons, the Above-Named

Petitioner/Owner/Title Holder

Respectfully Shows:

MANDAMUS APPLICATION

To the Honorable Judges of

The Supreme Court of Connecticut

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

Petitioner/Owner/Title Holder

App. 22

MANDAMUS APPLICATION

Petitioner claims a right under the legislative

enacted Special Act (#163875); under the Fifth and

Fourteenth Amendments to the United States Consti-

tution; under Paramount Federal Law where the

initial “taking” was by the United States on or about

July 1, 1962 with the invasion, appropriation, occu-

pancy and use of the air space with electronic in-

strumentation installed on the surface of subject real

property — without notice or compensation * * * upon

reliance that the STATE would acquire the fee, and,

LEASE to the United States the necessary land

interests for its instrumentation.

Where it is [undisputable] that the owner never

entertained a “verbal offer” or tendered any deeds

and it is equally [undisputable] that the TRES-

PASSER’S [Never] initiated any condemnation pro-

ceedings, or other proceedings, of any nature after

March 24, 1972 that would give the courts subject

matter jurisdiction, IS-WAS-CONTINUES a clearly

unconstitutional exercise * * * MANDAMUS is re-

served for really extraordinary causes * * * as in case

at bar * * * directing the JUDGES of the State Su-

preme Court to REMAND to Superior Court for

constitutional compliance with the Due Process and

Compensation Clauses of the 5th and 14th Amend-

ments pursuant to a “Federal Taking”; Wipe the

unconstitutional Supreme Court decree (180 c 587

(1980)) off the record; Wipe the land records clear

where no proceedings were instituted; No hearings

ever had or permitted; No judgment file or record is

App. 23

in evidence with the Superior Court below; Where the

JUDGES of State Supreme Court acted as CO-

CONSPIRATOR(S) in sanctioning the nullification of

Referee Shapiro’s judgment (Ex. #16) under Docket :

#162923 pertaining to illegal and unlawful

[LEASES], filed with the Superior Court on January

17, 1977; Where the judge(s) of State Supreme Court

were pronouncing a decree — via — petitioner’s tort

action (#163875) against a “MYTHICAL” JUDG-

MENT, “hatched” months after withdrawal in the

private office of Rogin, E., Sr., Esq. with no parties

present; Attaching the name of Referee Shapiro, L.,

that was [FORGERY], as evidenced by (Ex. #8) dated

July 18, 1980; Enlisting the Superior Court Clerk,

Thomas Abraham, to certify that the documents are

on file in office of Superior Court when there was

[NEVER] any submissions as verified by Chief Clerk,

Lucian Jachamovitz, (Ex. #7 & 7a) — as further veri-

fied by (Ex. #9) of all funds returned to the Treasury

on December 23, 1991, based on Shelton v.

Wolthausen, 80 C. 599 (1908).

A. STATEMENT OF FACTS

1. The record shows two (2) condemnation

attempts by the State of Connecticut (C.D.O.T.)

pursuant to a 1955 Grant Agreement (Ex. #11), where

the government policy was (is) to not take the fee —

but — enter into long-term leases.

2. The Tort (Damages) Action (#163875) was

filed with the Superior Court on January 2, 1970 and

App. 24

with the Connecticut Supreme Court ruling that the

second condemnation was also null and void, and, so

recorded on the land records on March 24, 1972

without addressing substantial damages, forcing the

landowner who was [DISPLACED] ten years prior by

the United States, to again pay real property taxes

with the federal instrumentation thereon.

3. It is an [{undisputable] fact that after the

court reverted subject real properties to the Owner on

March 24, 1972 at Vol. 52, p. 242-3 of Town of East

Granby Land Records, the State Transportation

Department and the Federal Agency became TRES-

PASSER’S — AB INITIO as of March 25, 1972, have

been mutually trespassing for the past thirty-five (35)

years; did not have any right or authority to parcel

out acreage to Air National Guard in February 1991

and are continuing to be trespassers until such time

as mesne process (condemnation) is instituted.

4. It is an [undisputable] FACT that where the

“taking” was by the United States for a Federal

Project “the use to be made of the land taken is

necessarily a factor to be considered in the applica-

tion of the rule”; the Statutes and Regulations en-

acted pursuant to the UNIFORM Real Property

Acquisition Act (P.L. 91-646 (1971)) — apply immedi-

ately — imposing numerous constraints upon [both]

the State and Federal governments in order that such

displaced persons shall not suffer disproportionate

injuries as a result of programs designed for the

benefit of the public as a whole.

2 ea See er a a i er hh, See

;

App. 25

B. FACTS —[LEASES]

5. It is a fact that any agency or government

body that shall form a combination (agreement-lease)

to avoid paying compensation shall be deemed guilty

of a[ CONSPIRACY TO DEFRAUD].

6. It is a FACT the United States (FA.A.) is a

person within the meaning of the Fifth Amendment of

the Constitution of the United States.

7. It is a FACT that * * * notwithstanding the

failed condemnation attempts that ... by reason of

the CO-CONSPIRATORS (State of Connecticut —

U.S.A.) ... grossly offending against the 5th and 14th

Amendments of the Constitution of United States and

willfully and flagrantly abused and misused govern-

ment power against the individual landowner with

continued [LEASING] ... in restraint of Compensa-

tion and Damages guaranteed by the 5th and 14th

Amendments.

8. It is a FACT the United States - NEVER —

made an attempt to lease from the owner — after

reverting of ownership in 1972 ... despite having

done so several times at airports throughout the

northeast region — including the Groton-New London

Airport in Connecticut.

9. It is a FACT that the failure *** of the

[blank] party plaintiff/defendant/trespasser (C.D.O.T.)

to effect service of a writ of summons ... on any

parties ... resulting in no party becoming a party to

trial court proceedings ... that never transpired;

ie ye ert aM ON re Ee a

App. 26

petitioner/plaintiff/owner, citing General Motors

Acceptance Corp. v. Pumphrey, 13 Conn. App. at 229

(1980) reads: Our Supreme Court long ago stated that

“The judgment of a court of even general jurisdiction

cannot affect a person who had no notice to appear, as

to him the proceedings are corum non judice,” Par-

sons v. Lyman, 32 Conn. 566, 577 (1863).

10. It is a FACT that defendant, (C.D.O.T.),

[cannot] transmogrify plaintiff’s/petitioner tort action

#163875 into an eminent domain action by hocus-

pocus circus style fashion. See Standard Oil v. Mis-

souri, 32 S.Ct. at 409 (1913).

11. It is a FACT that the defendant/trespasser

(C.D.O.T.) contends that plaintiff/defendant/landowner

(Simmons) consented to and conferred the right to

assert in personam jurisdiction — by agreement — on

January 4, 1978. The short answer to this claim is

that no such agreement appears from the record or as

an Exhibit. In addition, the Connecticut Supreme

Court decreeing in Simmons v. State, 160 Conn. 492

(1971), law of the case, that jurisdiction cannot be

conferred by consent, waiver, silence, or agreement.

In addition, “the parties and their case must be

brought before the court and this is accomplished by

the use of process.” 62 Am. Jur. 2d Process § 3.

12. It is not only a FACT — “It is, of course,

[essential] to the validity of any judgment that the

court rendering it should have had jurisdiction, not

only of the parties, but of the subject matter.” Chicago

B. & O.R. Co. v. Chicago, 166 U.S. 234, 247, 41 L.Ed.

pe a

Bass.

¥ Bis 2

BF ss

: ay

Jt,

‘ *

cS"

“¥

* £

bs:

“3

€

App. 27

983, 988, 17 S.Ct. Rep. 581; Standard Oil v. Missouri,

224 U.S. 270, 32 S.Ct. 406, 56 L.Ed. 760 (1912).

13. It is a fact the State of Connecticut not

having instituted any proceedings after March 24,

1972; not initiating any mesne process for jurisdiction

of the res; No Notice, Service of Process — or — return

of service to the Superior Court for jurisdiction of the

parties; No hearings or a day-in-court on the merits;

Where Congress in the ALL WRITS ACT meant only

in the exceptional case where there is clear abuse of

discretion or “USURPATION OF POWER’ ... of the

sort held to justify the writ in DeBeers Consolidated

Mines v. United States, 1945, 325 U.S. 212, 217, 65

S.Ct. 1130, 1133, 89 L.Ed. 1566... THIS IS SUCH A

CASE.

D. FACTS —-[COMPENSATION]

14. It is a Constitutional FACT that the time of

the invasion is the event which gives rise to the claim

for compensation and fixes the rate as of which the

land is to be valued — irrespective of failed condemna-

tion attempts and reverting of ownership. United

States v. Dow, 357 U.S. 17, 22, 78 S.Ct. 1039, 1044, 22

L.Ed.2d 1109 (1958).

15. It is a Constitutional FACT that [INTER-

EST] at a proper rate “is a good measure by which to

ascertain the amount so to be added” when the full

equivalent of that value is not paid contemporane-

ously with the taking Seaboard Airline R. Co. v.

United States, 261 U.S. 299 (1923).

eA eS

App. 28

16. It is a Constitutional FACT that petitioner

is entitled to recover reasonable attorney, appraisal,

engineering fees, taxes, and costs, that were substan-

tially greater than the value of the land under the

mandatory Paramount Federal Law and C.G.S. § 48-

17a. Drakes Bay Land Co. v. United States, (Ct. Cl.

No. 275-66).

17. It is a Constitutional FACT that award of

[DAMAGES] begins at instant of intrusion; that the

Judicial Department must comply with the legislative

mandate (Special Act #170 (1969)); that Referee

Shapiro had dates scheduled for [HEARINGS] (Ex.

#14); that the nullifying of all hearing dates on first

day of appearance (December 13, 1977) by the Rogin-

Hirtle Law Firm — denying a Day-in-Court was the

most gross violation of the Due Process Clause of the

5th and 14th Amendments; that the sanctioning by

the Connecticut Supreme Court of such outlandish

COMPENSATION DEPRIVATION with its decree at

180 Conn. 587 (1980) must be reversed for attempting

to — dignify such gross constitutional violation — a

JUDGMENT.

18. It is a FACT that [NO CONSTITUTIONAL

OFFER] could be made, verbal or written, without

compliance with 49 C.F.R. § 24.102 (basic protections

Ex. #3), ascertaining, appraising values as of date of

taking - BEFORE NEGOTIATIONS.

19. It is a FACT, as the record shows, an ap-

pearance was filed by Rogin Law Firm on December

13, 1977, [NOT] to “try” or “conclude” the active cases

App. 29

in both State and Federal Courts - INSTEAD — in

collusion and conspiracy with the State Agency, a

180° turnaround to [DESTROY], [DEACTIVATE],

[NULLIFY], ALL scheduled hearing dates for dam-

ages under #163875 (Ex. #14); [DESTROY] the 2nd

Circuit Court of Appeals remand (472 F.2d 509);

[NULLIFY] the 30 day trial judgment under Docket

#162923 by the honest and reputable Referee

Shapiro, L. (who never submitted any decree, judg-

ment, ruling to the Superior Court under Docket

#163875); where the express purpose of such mali-

cious, tortious, subversive conduct was to [DENY] the

property owners a meaningful opportunity to be

heard; “that a hearing required by Due Process,

under the 5th and 14th Amendments does not affect

its root requirement that an individual be given an

opportunity for a hearing before h» is deprived of any

significant property interest.” Boddie v. Connecticut,

401 U.S. 371, 379; E.G. Bell v. Burston, 402 U.S. 535,

542: Wisconsin v. Constantineau, 400 U.S. 433, 437;

Goldberg v. Kelley, 397 U.S. 254; Armstrong v. Manzo,

380 U.S. at 551; Mullane v. Central Hanover Tr. Co.,

339 U.S. 306 at 313.

E. FACTS - [ATTACHMENTS]

20. It is a FACT under Connecticut Practice,

compliance with C.G.S. § 52-57 is mandatory and the

failure to return the process to court within the time

limited renders the attachment proceedings fatally

defective. Jepsen v. Toni Co., 20 C.S. 287; Daley v.

Police Commissioners, 133 Conn. 716, 719; Hartley v.

App. 30

Vitiello, 113 Conn. 74, 79; Safford v. Morris Metal

Products, 99 Conn. 372, 376.

21. It is a Constitutional Fact that the Con-

necticut Supreme Court made exceedingly clear in

Simmons v. State 160 Conn. 492 (1971) that the

“Prescribed method of taking must be followed.” It

(State Supreme Court) also illuminated the fact in

Simmons v. State, supra, at 494n of the treatise of

Karp v. Urban Redevelopment Commission, 162 Conn.

525 at 527 cited: “The docketing of the statement of

compensation in the Clerk’s Office of the Superior

Court did not originate a civil action.” Where, the

rejected “verbal offer” (that was considerably less

than claimed), [COULD NOT — WAS NOT] docketed

with the Superior Court — [DID NOT] originate a civil

action — even if it was docketed — makes very clear

the fact that the Connecticut Supreme Court was

acting with no process originating by the State

Agency * * * for reasons that it would illuminate the

Unlawful, Illegal, Unconstitutional [LEASING] be-

tween the two (2) bureaucracies.

F. STATEMENT OF ISSUES AND RELIEF SOUGHT

Where the ISSUES necessary to be addressed is

more like a — laundry list — wherein the case at bar

can [NEVER] be resolved without the relief of A-DAY-

IN-COURT, and, the litigants (owner and necessary

parties) can never have their day-in-court when there

was [NEVER] any “action”, “mesne process”, “pro-

ceedings”, of any nature or form, by the State Agency

App. 31

(Connecticut Department of Transportation) originat-

ing, initiating, instituting any process after March 24,

1972 (date of reverting ownership).

I. Docket #163875, Simmons v. Wetherall

Citing Gaines v. New York, 215 N.Y. 533, 540, 109

N.E. 594 (1915) Judge Cardozo said: “The [saving]

statute is designed to insure.to the diligent suitor the

right to a hearing in court till he reaches a judgment

on the merits. Its broad and liberal purpose is not to

be frittered away by any narrow construction. The

important consideration is that by invoking judicial

aid, a litigant gives timely notice to his adversary of a

present purpose to maintain his rights before the

courts.”

II. LEASES

Without question, the most important issue in

this forty-five (45) year old extravaganza (1962-2007),

that is highlighted under section [B] of facts; wherein

the Rogin Law Firm initially agreed under a 38%

contingency contract to pursue what in 1977 had

been, at that time, fifteen (15) years of occupancy and

use — without compensation; the RELIEF sought,

prayed for, demanded that after forty-five (45) years

of FREE-LOADING the United States negotiate a

LEASE with the Owner/Title Holder - OR — DIRECT

ALL FLIGHTS TO RUNWAYS OTHER THAN 6-24

for ingress or egress.

App. 32

Without question, Congress intended the “UNI-

FORM ACT” [42 U.S.C. § 4601] applies equally to the

government agency as well as the state agency.

Petitioner/owner is not a member of Al Qaida or a

“nut” running around from eating too many peanuts,

but, making a straight forward demand under our

American Jurisprudence of PAY - OR YOU DON’T

FLY!!!

lil. COMPENSATION

Where petitioner/owner’s stand, claim, argument

for fair and just compensation, guaranteed by the 5th

and 14th Amendments is non-argumentative; in fact,

is mandatory, RELIEF by compliance with 49 C.F.R.

§ 24.102 (Ex. #3) is not only prayed for; it is de-

manded of both the Federal and State Agencies of

their respective obligations under the Constitution.

IV. DUE PROCESS — JURISDICTION

The ISSUE of JURISDICTION can be raised at

any time, regardless of form, was raised at page 10

and 11 of Appeal #9200 in 1979 to the Connecticut

Supreme Court — and disregarded.

Lack of subject matter jurisdiction and of the

parties by Connecticut Courts was argued by the

State (Atty. General’s Office) on June 7, 1982 before

Hon. DuPont, A.; the record shows the “scab verbal

offer” transferred back to the Treasury on December

23, 1991 making exceedingly clear the Connecticut

App. 33

Supreme Court — WAS NOT - upholding the rudi-

ments of fair justice.

V. [U.R.A.] 1971 Uniform Real Property Acquisition

Act

The ISSUE as to whether the Statutes and

Regulations promulgated pursuant to the above

congressional mandate apply to the case at bar with a

Federal Taking and Project is au unequivocal [YES] —

petitioner/owner is entitled to EQUAL PROTECTION

OF THE LAW - that RELIEF by a right to a HEAR-

ING in court till it reaches a judgment on the merits

(as expressed in numeral I) - CANNOT be FRIT-

TERED AWAY.

VI. INTENT TO DEFRAUD

This ISSUE was ominous from the opening bell

with the depiction under #19 of FACTS that were so

unconstitutional and repulsive that even a DIS-

CHARGE (Ex. #4) did not stop or curtail the mali-

cious, tortuous conduct and the only RELIEF, were he

(Rogin, E., Sr.) still alive, would have been a public

hanging -H-U-N-G-, not with dignity like Saddam

Hussein, but, Italian Style, by his collunes.

VII. ATTACHMENTS

The ISSUE regards attachments is: Did the

discharged, legally withdrawn private counsel (Rogin-

Hirtle, Esq’s.) (Ex. #4 & #6) have any right, authority,

App. 34

jurisdiction to — [RE-ENTER] the fray and in collu-

sion and conspiracy with the State Agency who never

originated any proceedings or process of any nature,

never enlisted a sheriff or indifferent person to serve

several lien-holders; made two (2) trips to Town Clerk

of East Granby, Connecticut. First, on June 2, 1978,

with the [FORGED] signature of Referee Shapiro and

again on June 5, 1978, two (2) separate document

dated June 2, 1978, one of which was labeled supple-

mental judgment claiming the parties appeared on

defendants’ motion for execution of judgment.

Petitioner’s demand for Relief is for DISSOLU-

TION of ATTACHMENTS per order of a Superior

Court Judge, which court has exclusive jurisdiction of

real property matters; has acted on August 30, 1979,

denying funds. Hon. Daly, J. (Ex. #7 & 7a); has acted

on disallowing funds on June 8, 1982, Hon. DuPont,

A.; has acted on returning funds to Treasury on

December 23, 1991, Hon. Aronson, J. (Ex. #9); has —

NOT — acted on recommending remand to Superior

Court on July 18, 1980, Referee Shapiro, L. (Ex. #8);

the owner has acted with a DISSOLUTION OF

ATTACHMENTS pursuant to C.G.S. § 52-327 on the

public land records and Superior Court Clerk’s Office

under Docket #163875 on December 1, 1996 (Ex. #2).

G. STATEMENT WHY WRIT SHOULD ISSUE

VIII. Where the [STATE] was in agreement with

petitioner/owner, a quarter century ago (June 7,

1982), that CONNECTICUT COURTS (including the

App. 35

inferior court of Rogin-Hirtle, Esq.’s — Shapiro, L.

(December 13, 1977)) lacked [JURISDICTION] of the

subject matter, the parties, and the process; the

frittering away of dates for hearings (Ex. #14) against

[DAMAGES] in direct violation of PARAMOUNT

FEDERAL LAW under 42 U.S.C. §§ 4653, 4654, 4655;

which exercise was anointed with a [JUDGMENT]

that is the farce of the century, and, is the rare and

exceptional case where [MANDAMUS] is appropriate

to remove the bureaucratic STATE SUPREME

COURT sanctioning of such unorthodox, unconstitu-

tional practices against a Federal Taking and Federal

Project; acting under Simmons v. Wetherall, #163875

(180 Conn. 587) that is plaintiff’s tort action and not

an action of the Connecticut Department of Transpor-

tation; where the Federal and State Courts have a

clear non-discretionary duty under the Due Process

Clause, AT A MINIMUM, requires that deprivation of

life, liberty or property by adjudication be preceded

by NOTICE and OPPORTUNITY for HEARING

appropriate to the nature of the case. U.S.C.A. Con-

stitutional Amendment 14.

IX. Citing SHOEMAKER V. UNITED STATES, 13

S.Ct. 361, 375 (1893) at 383 “THE COURT HAS NO

DISCRETION.” “It is the duty of the Court to ascer-

tain the value of the land embraced in the recorded

map which is selected and condemned. If the Court

should decline to discharge that duty, the Commis-

sion would be entitled to a MANDAMUS to compel

“™

App. 36

H. ORDER

Petitioner prays that this beloved State Supreme

Court of Connecticut, who, cannot issue any orders

directing any judge or judges of the Superior Court

below to file an answer to this petition for the obvious

reason there is [NO] proceedings, of any nature,

initiated by the State Agency; that the lower court

could or should act on — OR — answer to this petition;

where it is obvious there was no notice, service on

necessary parties or return to the Superior Court (See

#9 Facts); the Supreme Court of Connecticut must

invoke the Writ of Mandamus — [UPON ITSELF] -

within two (2) weeks, 14 days where by its unconsti-

tutional decree has denied just compensation that has

passed its 45th anniversary — to comply with its

centuries old citation of Parsons v. Lyman, 32 Conn.

566, 577 (1863) that “The judgment of a court of even

general jurisdiction cannot affect a person who had

no notice to appear, as to him the proceedings are

corum non judice.

Respectfully submitted,

/s/ Augustus Simmons

Augustus Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

App. 37

CERTIFICATE OF SERVICE

Petitioners/titleholder/owner hereby certifies

copies of this MANDAMUS APPLICATION, and,

copies of EXHIBITS incorporated in most recent

petition for Writ of Mandamus to United States

Supreme Court of May 30, 2007 — to the Supreme

Court of Connecticut — in support and further ampli-

fication of the Constitutional Infirmities of Petition-

Motion-Demand to REMAND and VACATE ATTACH-

MENTS dated November 10, 2005, has been mailed,

postage prepaid, this 8th day of August, 2007, to all

parties listed below.

Marion C. Blakey John Malone, Esq.

Federal Aviation State Attorney’s Office

Administrator 111 Phoenix Ave.

800 Independence Ave.,S.W. Enfield, CT 06082

Washington, D.C. 20591

Paul D. Clement Paul Pernerewski

Solicitor General Assistant Attorney General

950 Pennsylvania Ave.,N.W., P.O. Box 317546

Room 5614 Newington, CT 06131-7546

Washington, D.C. 20530-0001

Ralph Carpenter, Chief Clerk

Commissioner Superior Court

Connecticut Department 95 Washington Street

of Transportation Hartford, CT 06106

2800 Berlin Turnpike

P.O. 317546

Newington, CT 06131-7546

App. 38

Rogin, Nassau, Caplan, Major George Warrall

Lassman & Hirtle, Esq.’s Connecticut Air Guard

City Place I 360. Broad Street

Hartford, CT 06106 Hartford, CT 06105

/s/ Augustus Simmons

Augustus Simmons

P.O. Box 1

Windsor, CT 06095

(860) 569-6714

Date returned: 8/15/07 SC/AC #_CV70-0163875S

Simmons Vv. Wetherall

The following papers:_ Mandamus Application

are being returned per P.B. §62-7 for the reason(s)

indicated:

1. Originals are needed and/or papers are not

signed.

2. Certification of service per PB. §62-7, Motions

require certification on the original and all cop-

ies.

3. Exceeds number of pages allowed by P.B. §

4. Our records do not disclose an appeal captioned

as the enclosed.

5. Motion returned — not in compliance with P.B.

§66-2 (format); and/or §66-3 (font & margins).

Certification should contain reference to §66-3

and should be on the original and all copies.

App. 39

Requires permission of the court.

Requires permission of the court. There is no

provision in the practice book which provides for

the filing of such a document.

Case withdrawn/dismissed.

An endorsed copy of the appeal form is required.

P.B. §63-3.

. Failure to pay the $70.00 filing fee as required by

C.G.S. § 52-259c. Fees are payable in the trial

court. The Appellate Clerk’s Office does not ac-

cept cash, checks or money orders.

. Motions to Withdraw Appearance require rea-

sonable notice be given to the party being repre-

sented. See PS. §62-9.

12. Brief returned — not in compliance with P.B. §67-

2 (Only Arial or Univers type is allowed.)

13. Electronic version of transcript may be filed by

court reporter/monitor only.

14. Other_See attached order dated May 31, 200

[See pp. 19-20, supra.]

FOR INFORMATION ON THE CONNECTICUT

RULES OF APPELLATE PROCEDURE SEE:

http?//www,jud.state.ct.us/pb.htm and

http://www,jud.state.ct.us/Publications/appellatehandbook.

pdf

ALL DOCUMENTS MUST BE RECERTIFIED TO

ALL COUNSEL AND PRO SE PARTIES WHEN

REFILED.

App. 40

APPELLATE CLERK’S OFFICE

231 CAPITOL AVENUE

HARTFORD, CT 06106

860-757-2200 Fax 860-757-2217

App. 41

AFFIDAVIT - APPENDIX - INDEX

AFFIDAVIT |

DISSOLUTION OF ATTACHMENTS

VOL. 59, P. 661-2 E. GRANBY, CT LAND RE-

CORDS

49 CFR 24.102 BASIC PROTECTION POLICIES

DISCHARGE OF COUNSEL 12/23/77

ATTEMPTED “CLOSING” REMARKS 4/19/78

WITHDRAWAL OF COUNSEL 4/19/78

SUPERIOR COURT DENIAL OF FUND DIS-

TRIBUTION 8/30/79

. SUPERIOR COURT REASON FOR DENIAL

REFEREE SHAPIRO LETTER TO REMAND

7/18/80

TRANSFER FUNDS BACK TO TREASURY

12/21/91

. SUPREME COURT PLEADING DENIAL

5/3 L/00

. FEDERAL/STATE GRANT AGREEMENT

1/12/1955

. STATE TO FAA [LEASE] (1974)

. FAA LETTER TO OWNER 5/26/71

. SCHEDULED HEARING DATES

. C.G.S. § 8-129

. SIMMONS V. PARIZEK, No. 162923, January 1,

1977

App. 42

AFFIDAVIT - EXHIBIT [1]

1. Whereby the courts, including the Connecti-

cut Supreme Court are mandated by the 5th and 14th

Amendments to provide, allow, permit, process for the

assessment of damages and ascertainment of fair and

just compensation — where federal appropriation and

projects are at issue, AND, there is not, has not, been

any valuations (appraisals) hearings, notices, legal

seizures (mesne process) of any type, shape, or form

initiated by the state acquiring agency — since March

24, 1972, that would give the courts (Superior and

Supreme) Jurisdiction of the res, the parties, the proc-

ess, mandates a REMAND for a “Day in Court”,

2. Where the corrupt, discharged, legally with-

drawn Plaintiff’s contingency counsel — in collusion,

conspiracy, collaboration with the state acquiring

agency had intentionally, maliciously, tortiously —

flaunted, avoided, disregarded Federal Law, man-

dated on every state of the United States by the

Uniform Real Property Acquisition Act of Congress in

1970; wherein under 49 CFR 24.102(c) APPRAISALS

must be made [BEFORE] any negotiations, and no

ascertainment of just compensation can be made

without appraisal; wherein the state acquiring

agency never initiated any mesne process that would

get the necessary parties before the Court; wherein

Plaintiff’s counsel (Rogin-Hirtle, Esq.’s) contractually

agreed on a contingency basis to address DAMAGES

as part of the Just Compensation Mandate and on

January 4, 1978 when queried by Plaintiff’s re-

placement counsel, (Robert King, Esq.) as to why

he Foy 8 OL: en 8 Th

Sg RIS TE) Eg TEER BVO MA ET yer ea

FS Soh ere ee POIs SP aN Solin enh te er Te BV Neo RUS MIP RAE gear er

App. 43

damages were not being addressed, the response from

Edward Rogin, Sr. (Discharged on 12/23/77) was: “He

is an alcoholic, he will not know the difference.”

3. Wherein the attachments on the land records

contain covenants, highway acquisitions, restrictions

without a day in court to address value — their pro-

priety — or a return to court and the state acquiring

agency not initiating any mesne process, the [UNAU-

THORIZED PRIVATE COUNSEL] cannot transmog-

rify Plaintiffs tort action (#163875) into an eminent

domain action by superimposing the Connecticut

Department of Transportation as Plaintiff in the tort

action at Vol. 59, page 662 (Exhibit 2a); wherein all

the necessary parties to be served notice, CANNOT

be made parties to the private tort action.

4. Wherein the Connecticut Supreme Court

cannot, should not be rendering a decree under

Simmons v. Wetherall, sanctioning a violation of basic

applicable Federal Law where federal projects — grant

agreements are at issue, acting with no process, no

records, no docket number before the Superior Court

below, which Court invoked the citation of Shelton v.

Wolthausen, 80 Conn. 599 (1908) (Ex. 7a) of Appendix

to deny distribution of unconstitutional funds —

mandates a VACATURE of ATTACHMENTS and a

REMAND where the record is ultra clear the Owner

refused to participate in an unconstitutional verbal

_ compensation shakedown (Ex. #4); refused to tender

any deeds-title-rights to the Federal Agency (F.A.A.)

(Ex. #5), that forced the capitulation and legal with-

drawal of all counsel on 4/19/78 (Ex. #6).

App. 44

5. Wherein the state acquiring agency has

never initiated any mesne action since March 24,

1972 — TO REACQUIRE - satisfactory property

interest pursuant to the Federal/State Grant Agree-

ment of January 12, 1955 (Ex. #11), YET, has con-

tinually engaged in [LEASING] the subject real

property to the Federal Agency (Ex. #12), who CAN-

NOT, under the Fifth Amendment, — DEFER -— par-

ticipation in the costs of acquiring the land until after

it has been accomplished successfully (Ex. #13),

mandates a REMAND of who is going to pay fair and

just compensation — from date of taking with interest.

6. Wherein the Superior Court appointed Refe-

ree (Shapiro, L.) never submitted any report, decree,

judgment, opinion back to the Superior Court under

Docket #163875 in which he was the presiding jurist

anu his letter to Rogin-Hirtie, Esq.’s pinch-hitting

counsel of July 18, 1980 —- AFTER the Supreme Court

Decree of May 13, 1980 (Ex. #8) recommended RE-

MAND to the Superior Court regarding notices to

necessary parties and this issue cannot be resolved or

concluded without an opportunity to come before the

Court, the motion is respectfully requested to be

honored.

Respectfully submitted,

/s/ Augustus Simmons

Augustus Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

App. 45

[EXHIBIT] [2]

December 1, 1996

Town Clerk

Town Hall

9 Center Street

East Granby, CT 06026

Dear Clerk,

The subject matter of this letter pertains to:

DISSOLUTION OF ATTACHMENTS PURSUANT

TO C.G:S. $ 52-327.

1. Plaintiff-owner-interested person Augustus J.

Simmons requests the following listed encumbrances

be endorsed on the record of such attachment with

the words “DISCHARGED BY OPERATION OF

LAW” pursuant to Connecticut General Statute § 52-

327.

2. The attachments on the public land records

under the caption of Augustus J. Simmons v Horace

B. Wetherall, CV-70-163875 by private counsel, with-

out any eminent domain proceedings in existence-or-

initiated for attachment purposes, without any notice

or service of process on interested parties, without

any return of service to the court of competent juris-

diction (Superior Court) prior to or after the attach-

ment, and, without appraisals to establish fair-

market value that are mandatory, including a trans-

fer of title under plaintiff’s private tort action,

Docket #163875 are:

App. 46

Vol. 59, p. 657-668

Vol. 59, p. 654-656

Vol. 59, p. 623-626

Map Book 17, page 853

Map Book 17, page 854

3. Included in Vol. 59, p. 657-668 is a citation at

page 661-662 of names of parties and institutions to

be served with notice with a return day of the first

Tuesday of July, 1978.

4. Vol. 59, p. 661-662 DOES NOT list Augustus

J. Simmons for notice and service, however, he is still

an “interested person,” — he just happens to be the

owner.

5. That there was NO officer’s service on any

par-ties, NO written return of his (officer’s) precept to

the court of competent jurisdiction (Superior Court)

and NO compensation paid is evident in a letter from

Atty. Tom Byrne, a copy being submitted as an exhibit

showing an encumbrance at Vol. 55, page 731 (1974)

of East Granby land records (also listed in the cita-

tion at Vol. 59, p. 661-2) that is still outstanding.

The listed attachments in item #2 were recorded

on June 2nd and 5th of 1978 which is a much longer

period than FIFTEEN YEARS from date of attach-

ment.

| 6. The interested person (owner) submits a

sworn testimonial from Atty. Walter Bass before Hon.

Dupont, A. on June 7, 1982 representing “Valente’s”

and “Allaire’s” with outstanding liens at Vol. 58, p. 95;

App. 47

Vol. 58, p. 221; 59/253; 59/263; 59/266 (trans. p. 26)

that states:

“Your Honor, in Mr. Feingold’s recitation that he

gave Your Honor this morning, | forget which para-

graph he referred to in Judge Shapiro’s decision,

there was to be a citation issued so that all people

would come forth and present their claims. I have a

right to inform the court that in the citation, my two

clients were listed under the care of my office. I will

state to the court that I have never been served any

citation nor has my clients even been served with any

kind of a citation to give us any notice to come in to

determine what our priorities are in this matter.”

The above citations of Valente and Allaire are

(also listed in the citation at Vol. 59, p. 661-2).

7. The caption Simmons v Wetherall, #163875, a

tort action AGAINST the state, a result of special Act

#170 of the 1969 legislature, CANNOT be TRANS-

MOGROFIED into an eminent domain action by

superimposing the Connecticut Department of Trans-

portation as plaintiff (Vol. 59, p. 662), by private

counsel, for land acquisition for federal navigational

instrumentation projects, per federal grant agree-

ment 9-06-009-5708 (1955), that must be acquired

pursuant to federal regulations, constituting a

fraudulent encumbrance.

8. Under the law of Connecticut, any lien cre-

ated by attachment continues for 60 days after judg-

ment and no longer. If no execution is taken out

ee -

“a

App. 48

before that time, the lien perishes. Sanford v Pond,

(1871) 37 Conn. 588.

9. Where it is unambiguously clear there was

no notice, no service, or, return to the court of compe-

tent jurisdiction, no judgment file or record of any

kind before the court of competent jurisdiction under

Docket #163875, and, the listed return day was the

first Tuesday of July, 1978 (Vol. 59, p. 661) and the

attachments were submitted on June 2nd and 5th of

1978, some of which contained a court stamp of the

Court Clerk (Thomas H. Abraham) of Superior Court

to give the appearance of authenticity to the public is

FRAUD upon the court, the public, and the “inter-

ested persons” named in the citation.

Court records show the succeeding Chief Clerk,

(Lucian Jachomovitz) informing Hon. Judge John

Daly in August, 1979 there were NO proceedings

before the Superior Court, consequently the Superior

Court was without jurisdiction to act, referencing the

citation of Shelton v Wolthausen, 80 c. 599.

10. Court records show a motion filed with

Judge Aronson by plaintiff-owner-interested person

(Simmons) that jurisdiction could not be created “sua

sponte” in December, 1991 relative to the notice from

the court to Atty. Tom Byrne, and others, and as a

result of said motion the “slush fund” monies being

held under the direction of the court were ABAN-

DONED.

11. Unquestionably, there is years, not months

or days beyond the statutory fifteen (15) years

App. 49

referenced and “DISCHARGED BY OPERATION OF

LAW?” is the purpose and request of this letter.

Respectfully submitted,

/s/ Augustus J. Simmons

Augustus J. Simmons

P.O. Box #1

Windsor, CT 06095

(860) 569-6714

cc: Exhibits

[EXHIBIT] [2a]

Vol 59, Page 661

CITATION

TO THE SHERIFFS OF THE COUNTIES OF

HART-FORD AND NEW HAVEN, THE DEPUTIES

OR EITHER CONSTABLE OF THE TOWNS OF

HARTFORD, WEST HARTFORD, MERIDEN,

WAREHOUSE, ‘POINT, NEW BRITAIN, AND EAST

GRANBY, WITHIN SAID COUNTIES,

GREETINGS:

BY AUTHORITY OF THE STATE OF CON-

NECTICUT, You are hereby commanded to summon

Jerome H. Diamond, 25 Arlen Way, West Hartford,

Conn., Thomas P.’ Byrne, Esq., 790 Farmington Ave-

nue, West Hartford, Conn., Leonidas D. Simmons, c/o

Danaher & Danaher, Esqs., 5) Parker Avenue, Meri-

den, Conn, Connecticut Bank & Trust Co., One Con-

stitution Plaza, Hartford, Conn.; Hartford National

App. 50

Bank, 777 Main Street, Hart-ford, Conn., Leonard

Allaire, c/o Walter E. Bass, Jr., Esq., 148 R North

Road, Warehouse Point, Conn., Patsy Valenty, c/o

Walter E. Bass, Jr., Esq., 148 R North Road, Ware-

house Point, Conn., Westside Valet Parking, Inc., c/o

Charles Gersten, Esq., 234 Pearl Street, Hartford,

Conn., David B. Salzman, c/o Jason Pearl, Esq., 19 S.

High Street, New Britain, Conn., and Angelo J.

Roncari, P.O. Box 268, East Granby, Conn. and them

summon to appear before the Superior Court to be

held in the County of Hartford at Hartford, on the

first Tuesday of July, 1978, at 10:00 o’clock in the

forenoon, said appearance to be made by said Jerome

H. Diamond, Thomas P. Byrne, Leonidas D. Simmons,

Connecticut Bank & Trust Company, Hartford Na-

tional Bank, Leonard Allaire, Patsy Valente, Westside

Valet Parking, Inc., David B. Salzman, and Angelo J.

Roncari, or their attorneys, [662] on or before the

second day following said return date, then and there

to answer unto the Commissioner of Transportation

of the State of Connecticut, of the Town of Wethers-

field, County of Hartford, in a civil action, wherein

the plaintiff complains and says:

Each lienor, encumbrancer and/or party cited

herein shall state whether or not he or they claim any

estate or interest in or encumbrance on the property

described herein or any part thereof, and, if so, the

nature and extent of the estate, interest or encum-

brance which he or they claim, and he or they shall

App. 51

seit out the manner in which such estate, interest or

encumbrance is claimed to be derived.

PLAINTIFF, COMMISSIONER OF

TRANSPORTATION STATE OF

CONNECTICUT

BY: CARL R. AJELLO

ATTORNEY GENERAL

/s/ William A. McQueeney

William A. McQueeney — 85340

EXHIBIT [3]

UNIFORM REAL PROPERTY BASIC

ACQUISITION POLICIES MANDATE

FOR FEDERAL PROJECTS

49 C.F.R. section 24.102 BASIC ACQUISITION

POLICIES

(a) Expeditions Acquisitions. The agency

shall make every reasonable effort to ac-

quire the real property expeditiously by

negotiation.

(b) Notice to owner. As soon as feasible, the

owner shall be notified of the agency’s

interest in acquiring the real property

and the BASIC PROTECTIONS, includ-

ing the agency’s obligation to secure an

appraisal, provided to the owner by law

and this part.

to Owner. (1) Before the initiation of

(d)

(e)

App. 52

negotiations the real property to be ac-

quired shall be appraised, except as pro-

vided in section 24.102(c\2), and the

owner, of the owner’s designated repre-

sentative, shall be given an opportunity

to accompany the appraiser during the

appraiser's inspection of the property.

Establishment and Offer of Just Com-

pensation. Before the initiation of nego-

tiations, the agency shall establish an

amount, which it believed, is just com-

pensation for the real property. The

amount shall not be less than the ap-

proved appraisal of the fair market

value of the property, taking into ac-

count the value of allowable damages or

benefits to any remaining property.

Promptly there-after, the agency shall

make a written offer to the owner to ac-

quire the property for the full amount

believed to be just compensation.

Summary Statement. Along with the ini-

tial written purchase offer, the owner

shall be given a written statement of the

basis for the offer of just compensation,

which shall include: (1) A statement of

the amount offered as just compensa-

tion.

In case of a partial acquisition, the com-

pensation for the real property to be

acquired and the compensation for dam-

ages, if any, to the remaining real prop-

erty shall be separately stated. (2) A

description and location identification of

(f)

(g)

App. 53

the real property and the interest in the

real property to be acquired. (3) An iden-

tification of the buildings, structures,

and other improvements which are to be

considered to be part of the real property

for which the offer of just compensation

is made.

Basic Negotiation Procedures. The

agency shall make reasonable efforts to

contact the owner or the owner’s repre-

sentative and discuss its offer to pur-

chase the property, including the basis

for the offer of just compensation; and,

explain its acquisition policies and pro-

cedures, including its payments of inci-

dental expenses in accordance with 49

C.F.R. section 24.106. The owner shall be

given reasonable opportunity to consider

the offer and present material which the

owner believes is relevant to determin-

ing the value of the property and to sug-

gest modification in the proposed terms

and conditions of the purchase. The

agency shall consider the owner’s pres-

entation.

Updating Offer of Just Compensation. If

the information presented by the owner,

or a material change in the character or

condition of the property indicates the

need for new appraisal information, or

if a significant delay has occurred since

the time of the appraisal(s) of the prop-

erty, the agency shall have the ap-

praisal(s) updated or obtain a new

(h)

App. 54

appraisal. If the latest appraisal infor-

mation indicates that a change in the

purchase offer is warranted, the agency

shall prompily reestablish just compen-

sation and offer that amount to the

owner in writing.

Coercive Action. The agency shall not

advance the time of condemnation or de-

fer negotiations or condemnation or the

deposit of funds with the court, or take

any other coercive action in order to in-

duce an agreement on the price to be

paid for the property.

(i) Administrative Settlement. The purchase

price for the property may exceed the

amount offered as just compensation

when reasonable efforts to negotiate an

agreement at that amount have failed

and an authorized agency official ap-

proves such administrative settlement

as being reasonable, prudent, and in the

public interest.

G) Payment Before Taking Possession. Be-

fore requiring the owner to surrender

possession of the real property the

agency shall pay the agreed purchase

price to the owner, or in the case of a

condemnation, deposit with the court,

for the benefit of the owner, an amount

not less than the agency’s approved ap-

praisal of the fair market value of such

property, or the court award of compen-

sation in the condemnation proceeding

(k)

App. 55

for the property. In exceptional circum-

stances, with the prior approval of the

owner, the agency may obtain a right-of-

entry for construction purposes before

making payment available to an owner.

Uneconomic Remnant. If the acquisition

of only a portion of a property would

leave the owner with an uneconomic

remnant, the agency shall offer to ac-

quire the uneconomic remnant along

with the portion of the property needed

for the project.

(1) Inverse Condemnation. If the agency in-

tends to acquire any interest in real

property by exercise of the power of emi-

nent domain, it shall institute formal

condemnation proceedings and not inten-

tionally make it necessary for the owner

to institute legal proceedings to prove the

fact of the taking of the real property.

(m) Fair Rental. If the agency permits a

former owner or tenant to occupy the

real property after acquisition for a short

term or a period subject to termination

by the agency on short notice, the rent

shall not exceed the fair market rent for

such occupancy.

App. 56

[EXHIBIT] [4]

12/23/77

Dear Mr. Rogin,

I am a totally dissatisfied individual with the

“GOOD DEAL” that your Firm has arranged with the

Dept. of Trans. concerning my property at Bradley

Field.

Because everyone is now in an awkward position

upon your firm’s insistence of accepting a proposal

without the benefit of a Market Research Study by the

John Rawlson Firm, I am asking the Rogin Firm to

withdraw immediately so I can obtain other Counsel.

On my visit to your office on Thurs. Dec. 22nd, I

told you I wanted to protect my rights against your

recommendations.

I also compiled some data wherein I showed you

and again outline a breakdown of Parcel “C”.

Asking me to yield all of Parcel “A” and all dam-

ages for absolutely nothing is not representing my

best interests.

Will appreciate an immediate withdrawal.

/s/ O. Simmons

Parcel “C” May 1975 382.000

Rental May “76” to

May “78” @ 20,000 60.000

Out of Pocket Expenses 82.000

524.000

App. 57

[EXHIBIT] [5]

CLOSING REMARKS of proceedings held on

April 19, 1978, at the offices of ROGIN, NASSAU,

CAPLAN, LASSMAN and BORDEN, ESQUIRES, 111

Pearl Street, Hartford, Connecticut.

APPEARANCES:

Augustus (Ozzie) Simmons

John Kataja

David Salzman, Esq. .

Stephen Silverman, Esq.

Ned Rogin, Esq.

Phillip Robbins, Esq.

F. D. Neusner, Esq.

Dennis Cemeriva Esq.

Robert L. Hirtle, Esq.

Reported by:

William G. Crompton

Certified Shorthand Reporter

Notary Public

[8] delivery of the deeds, of course.

MR. HIRTLE: Mr. Simmons, as I under-

stand it you don’t want to proceed further with the

closing, is that correct?

MR. SIMMONS: Bob Hirtle, I have the

highest respect for you just like I sent you the letter, I

have the highest and utmost respect for Referee

App. 58

Shapiro and I further qualified it by saying that I am

not going to be a party to any deal which is going to

be coming out and being made public whereby the

Rogin firm and my good friends here, Dave Salzman

and Steve, who I have been very prone to pick on. It

is just not fair to everybody to have this kind of an

arrangement and I am not going to be a party to it.

What the State is attempting to do here is to say okay

let’s date this thing back so their skirts are clean.

They want me to go back and do battle with the Town

over the taxes and I say bullshit to that. We are going

to clear that matter up before there will by any

Goddamned closing. We are going to get that cleared

up and they are going to be open and above board. I

don’t care if it is Referee Shapiro. Hell, it is everybody

and I’m telling you, everyone at the table, everything

is going to be above board and no dealing is going

back to November of ’64.

MR. HIRTLE: You will not sign a deed

today to consummate the closing, is that what I

understand?

MR. SIMMONS: Because the agreement

states and [9] I have to say if any portion of it is a

nullity then it is a nullity and I am not going to be a

party to anything that is a nullity.

MR. NEUSNER: Is that a definite negative

answer?

MR. HIRTLE: You are instructing counsel

not to proceed with the closing because you consider

it to be a nullity?

App. 59

MR. SIMMONS: I am going to answer you

Bob by saying that I sent you a certified letter ex-

pressing my position and when I talked to you on the

phone, I said to myself, at least I am going to give

them the courtesy of putting in an appearance today.

I think that is a sufficient answer.

MR. HIRTLE: So I am not to proceed to

closing and you will not sign the deeds today?

MR. SIMMONS: That is correct.

MR. HIRTLE: And the meeting is ad-

journed.

(Whereupon at 11:44 o'clock a.m. the closing was

adjourned).

[EXHIBIT] [6]

NO. 202121-8

STATE OF CONNECTICUT: SUPERIOR COURT

VS. * HARTFORD COUNTY

AUGUSTUS J. SIMMONS . APRIL 19, 1978

NO. 199230-9

AUGUSTUS J. SIMMONS

VS.

SAMUEL KANELL, ET AL

App. 60

NO. 140965

STATE OF CONNECTICUT

VS.

ANASTASIA SIMMONS

AUGUSTUS J. SIMMONS

and CHARLES SIMMONS

NO. 162923

AUGUSTUS J. SIMMONS

VS.

FRANK C. PARIZEK, ET AL

NO. 163875

AUGUSTUS J. SIMMONS

VS.

HORACE B. WETHERELL,

ET AL

MOTION TO WITHDRAW AS COUNSEL

The undersigned respectfully move for the per-

mission of the Court to withdraw as counsel for

Augustus J. Simmons in the above-captioned matters.

/s/ Robert Hirtle

ROGIN, NASSAU, CHAPLAN,

LASSMAN AND HIRTLE

/s/ David B. Salzman

DAVID B. SALZMAN,

ESQUIRE

/s/ Stephen W. Silverman

STEPHEN SILVERMAN,

ESQUIRE

App. 61

ORDER

The foregoing motion is granted/denied.

BY THE COURT

Clerk

This is to certify that the foregoing has been mailed

this day to counsel of record and to the plaintiff.

/s/ Robert L. Hirtle Jr.

Robert L. Hirtle, Jr.

[EXHIBIT] [7]

Law. Offices

Jason E. Pearl

- 19 SOUTH HIGH STREET

POST OFFICE BOX 183

New Britain, Connecticut 06050

Jason E. Pearl Telephone

Kenneth J. Speyer (203) 229-1603

August 30, 1979

The Honorable John Daly

Superior Court

95 Washington Street

Hartford, CT

Re: David Salzman

Vs: Augustus Simmons

Docket No. 218559 8

App. 62

Dear Judge:

First of all, welcome back from vacation.

While you were away on August 13 I received a

telephone call from one of the assistant clerks advis-

ing me that if I wished to reargue my Motion For

Turnover dated July 25, 1979, I would have to claim

it for the Short Calendar. I was rather taken back by

this announcement inasmuch as my file indicates

that you granted the motion in open court on July 27,

1979. I recall you speaking to me briefly subsequent

to that time indicating that you were going to meet

with Mr. Abraham with respect to the order, but you

did not indicate to me that you had vacated your prior

decision. I would assume that for me to be put into

the position of having to “reargue” your prior decision

would have to be revoked. Until that happens, . really

do not know what there is for me to argue.

I would be most appreciative of your guidance in

this matter.

Yours very truly,

/s/ Jason E. Pearl, Esq.

Jason E. Pearl, Esq.

JEP/ck

1888

[Hearing set up for 9/12/79 at 2:00 p.m.)

App. 63

EXHIBIT [7a]

Linda

Based on SHELTON v WOLTHAUSEN, 80C 599

(furnished by Lucian) I would have no authority to

grant this motion. Will you kindly notify Jason Pearl

regarding this & if he wishes to argue the matter put

it down.

Thanks

EXHIBIT [8]

APPENDIX

STATE OF CONNECTICUT

LOUIS SHAPIRO SUPREME COURT BUILDING

STATE REFEREE P.O. DRAWERN.

HARTFORD, CONN. STATION A

06106

July 18, 1980

Jason E. Pearl, Esquire

19 South High Street

P.O. Box 183

New Britain, CT 06050

Re: No. 16 38 75

Augustus J. Simmons v. Horace B. Wetherell, et al

Dear Mr. Pearl:

This will acknowledge receipt of your Motion For

Disbursement of Funds by Clerk dated July 16, 1980

and received by me this morning.

App. 64

Since your phone call to me, I am not certain as to

what steps should be taken in order to make dis-

bursement as requested by you. Since the amount

attached by Atty. Salzman et als was accomplished by

bringing suit, it would seem to me that before distri-

bution could be made, that this claim be reduced to a

judgment. If there is a more expeditious way to

proceed, I would appreciate hearing from you as soon

as possible.

I'm also concerned about the order of distribution

since the land records, according to your memoran-

dum attached to your letter, show a list of encum-

brances prior to the date of the Salzman attachment.

Also, in view of the many complications which I

anticipate, would it not be better to have this issue

handled by the Superior Court? I am not equipped, as

a referee to give notice to the various creditors which

I believe may be necessary. It would seem that your

motion could be handled properly by the Superior

Court.

Very truly yours,

Louis Shapiro

State Referee

LS:mcd

cc: Ronald Cassidento, Esquire

William A. McQueeney, Esquire

App. 65

EXHIBIT [9]

APPENDIX

CASE NO. 16 38 75

AUGUSTUS SIMMONS : SUPERIOR COURT

vs. * HARTFORD JUDICIAL

HORACE WETHERALL,: DISTRICT

ET AL. : OCTOBER 15, 1991

MOTION TO TRANSFER FUNDS

Since 1978 the Clerk’s Office has been the Custo-

dian of moneys deposited in the above case. The

money was to be paid out upon consummation of a

transfer of certain real estate by the named plaintiff.

Such a transfer has not yet occurred.

Attached to this motion are memos from the

Treasurer of the State of Connecticut and from the

Court Operations Unit of the Judicial Branch in

explanation of this motion. The Clerk’s Office re-

quests the granting of this motion to transfer.

[off — parties have met 11/8/91 and will work out a

stipulation to be presented to the court for the with-

drawal of all funds and closing of file. /s/ Aronson, J.

ARONSON, J. 11/8/91]

/s/ Lucian J. Jachimowicz

LUCIAN J. JACHIMOWICZ

CHIEF CLERK

App. 66

ORDER

The Court, having heard the parties, grants the

motion.

Judge

EXHIBIT [10]

APPENDIX

STATE OF CONNECTICUT

SUPREME COURT |

NO. HHD CV70-0163875S

AUGUSTUS J. SIMMONS

v. ; MAY 31, 2000

HORACE B. WETHERALL

ET AL.

ORDER

THE MOTION OF THE PLAINTIFF, FILED

MAY 1, 2000, TO VACATE, HAVING BEEN PRE-

SENTED TO THE COURT, IS HEREBY ORDERED

DISMISSED.

IT IS FURTHER, ORDERED THAT THE

PLAINTIFF IS HEREBY PROHIBITED FROM

FILING PLEADINGS IN THIS COURT THAT

_ App. 67

ARE RELATED TO DOCKET NUMBER CV70-

0163875.

BY THE COURT,

/s/ Francis Drumm —

CHIEF CLERK

NOTICE SENT: MAY 31, 2000

AUGUSTUS SIMMONS, PRO SE

PAUL K. PERNEREWSKI,

ASSISTANT ATTORNEY GENERAL

ROGIN, NASAU, CAPLAN,

LASSMAN & HIRTLE

CLERK, HARTFORD J.D.

HON. JOHN J. LANGENBACH

[EXHIBIT] [11]

DEPARTMENT OF COMMERCE

CIVIL AERONAUTICS ADMINISTRATION

WASHINGTON 25

GRANT AGREEMENT

Part I — Offer

CONTRACT NO. CICA Date of Offer

36-A January 12, 1955

Bradley Field Airport

Project No.

09-06-009-507

App. 68

TO: STATE OF CONNECTICUT

(herein referred to as the “Sponsor”)

FROM: The United States of America (acting through

the Administrator of Civil Aeronautics, herein

referred to as the “Administrator”)

WHEREAS, the Sponsor has submitted to the Admin-

istrator a project Application dated December 2, 1954

for a grant of federal funds for a project for develop-

ment of the Bradley Field Airport (herein called the

“Airport”) together with plans and specifications for

such project, which Project Application, as approved

by the Administrator, is hereby incorporated herein

and made a part hereof; and

WHEREAS, the Administrator has approved a project

for development of the Airport (herein called the

“Project”) consisting of the following described airport

development:

“Acquisition of land for ‘Doolittle’ clear zones

- both ends Runway 6-24; acquisition of land

and navigation easements for protection of

approaches 6-24, 19, 33”.

all as more particularly described in the property

map and plans and specifications incorporated in the

said Project Application;

NOW THEREFORE, pursuant to and for the pur-

poses of carrying out the provisions of the Federal

Airport Act (60 Stat. 170; Pub. Law 377, 79th Con-

gress), and in consideraf¥~on of (a) the Sponsor’s

adoption and ratification of the representations and

assurances contained in said Project Application, and

BEST AVAILABLE COPY

App. 69

its acceptance of this Offer, as hereinafter provided,

and (b) the benefits to accrue to the United States

and the public from the accomplishment of the Pro-

ject and the operation and maintenance of the Air-

port, as herein provided.

THE ADMINISTRATOR, FOR AND ON BEHALF OF

THE UNITED STATES HEREBY OFFERS AND

AGREES to pay, as the United States’ share of the

cost in accomplishing the project, 50 percent of all

allowable project costs subject to the following terms

and conditions:

The maximum obligation of the United

States payable under this Offer shall be

$37,000.00

The Sponsor shall

(a)

(b)

(c)

begin accomplishment of the Project

within a reasonable time after accep-

tance of this Offer, and

carry out and complete the Project in ac-

cordance with the terms of this Offer,

and the Federal Airport Act and the

Regulations promulgated thereunder by

the Administrator in effect on the date of

this Offer, which Act and Regulations

are incorporated herein and made a part

hereof, and

carry out and complete the Project in

accordance with the plans and specifica-

tions and property map incorporated

herein as they may be revised or modified

ai,

sth,

Bats. i

App. 70

with the approval of the Administrator or

his duly authorized representatives.

The Sponsor shall operate and maintain the

Air-port as provided in the Project Applica-

tion incorporated herein.

The maximum amounts of building space

which the Sponsor shall be obligated to fur-

nish civil agencies of the United States for

the purposes and on the terms and condi-

tions states in Paragraph 9 of Part III of the

Project Application dated May 18, 1949, for

Project No. 9-06-009-906-009-801 shall be as

set forth in the attached schedule of maxi-

mum space requirements which is incorpo-

rated herein and made a part hereof.

Any misrepresentation or omission of a mate-

rial fact by the Sponsor concerning the Project

or the Sponsor’s authority or ability to carry

out the obligations assumed by the Sponsor in

accepting this Offer shall terminate the obliga-

tion of the United States. and it is understood

and agreed by the sponsor in accepting this Of-

fer that if a material fact has been misrepre-

sented or omitted by the Sponsor, the

Administrator on behalf of the United States

may recover all grant payments made.

The Administrator reserves the right to

amend or withdraw this Offer at any time

prior to its acceptance by the Sponsor.

This Offer shall expire and the United States

shall not be obligated to pay any of the al-

lowable costs of the Project unless this Offer

App. 71

has been accepted by the Sponsor within 60

days from the above date of Offer or such

longer time as may be prescribed by the Ad-

ministrator in writing.

It is understood and agreed that the areas

delineated on Exhibit “A” as ‘Doolittle’ clear

zones at each of the Runway 6-24 will be

maintained by the Sponsor completely free

from all structures except these required for

aids to air navigation, unless otherwise au-.

thorized by the Administrator.

It is further understood and agreed by and

between the parties hereto that the Project

Application dated May 18, 1949 for Project

No. 9-06-009-801 is hereby amended by de-

leting the last sentence of Paragraph 7 of

Part III thereof and inserting in lieu thereof

the following:

“The airport approach stan-

dards to be followed in perform-

ing the covenants contained in

this paragraph shall be those

established by the Administra-

tor in Office of Airports Drawing

No. 814, dated April 26, 1950,

unless otherwise, authorized by

the Administrator”.

The Sponsor’s acceptance of this Offer and ratifica-

tion and adoption of the Project Application incorpo-

rated herein shall be evidenced by execution of this

instrument by the Sponsor, as hereinafter provided,

Re gS ee ea Oe Ne Leta ig 8 Rete Ree OMY Se Pe Re

App. 72

and said Offer and acceptance shall compromise a

Grant Agreement, as provided by the Federal Airport

Act, constituting the obligations and rights of the

United States and the Sponsor with respect to the

accomplishment of the Project and the operation and

maintenance of the Airport. Such Grant Agreement

shall become effective upon the Sponsor’s acceptance

of this Offer and shall remain in full force and effect

throughout the useful life of the facilities developed

under the Project but in any event not to exceed

twenty years from the date of said acceptance.

UNITED STATES OF AMERICA

THE ADMINISTRATOR

OF CIVIL AERONAUTICS

By /s/ Ora W. Young

Regional Administrator,

Region One

Part Il — Acceptance

The STATE OF CONNECTICUT does hereby ratify

and adopt all statements, representations, warran-

ties, covenants, and agreements contained in the

Project Application and incorporated materials re-

ferred to in the foregoing Offer and does hereby

accept said Offer and by such acceptance agrees to all

of the terms and conditions thereof.

App. 73

Executed this Ist day of February 1955.

STATE OF CONNECTICUT

(Name of Sponsor)

By /s/ KH. Ringrose

Title Director of Aeronautics

(SEAL)

Attest: /s/ Mildred P. Allen

Title: Secretary of State

CERTIFICATE OF SPONSOR’S ATTORNEY

I, Jack Rubin, acting as Attorney for STATE OF

CONNECTICUT, go-herete-certify (herein referred to

as “Sponsor”), to hereby certify:

That I have examined the foregoing Grant

Agreement and the proceedings taken by said Spon-

sor relating thereto, and find that the Acceptance

thereof by said Sponsor relating thereto, and find

. that the Acceptance thereof by said Sponsor has been

duly authorized and that the execution thereof is in

all respects due and proper and in accordance with

the laws of the State of Connecticut, and further that,

in my opinion, said Grant Agreement constitutes a

legal and binding obligation of the Sponsor in accor-

dance with the terms thereof.

Dated at HARTFORD, CONNECTICUT this Ist day

of February, 19565.

/s/ Jack Rubin

Title Assistant Attorney General

Pt ht a, ee

App. 74

[EXHIBIT] [12]

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

NEW ENGLAND REGION

12 NEW ENGLAND EXECUTIVE PARK

BURLINGTON, MA 01803

Lease No.: DOT-FA74NE-0369

BRADLEY INTERNATIONAL

ILS-ALS R/W6

LEASE

between —

STATE OF CONNECTICUT

DEPARTMENT OF TRANSPORTATION

and

THE UNITED STATES OF AMERICA

This LEASE, made and entered into this first day

of June in the year one thousand nine hundred and

seventy four by and between the State of Connecticut,

Department of Transportation whose address is 24

Wolcott Hill, Wethersfield, Connecticut, 06109 for

itself and its heirs, executors, administrators, succes-

sors, and assigns, hereinafter called the lessor, and

the UNITED STATES OF AMERICA, hereinafter called the

Government:

WITNESSETH: The parties hereto for the consid-

eration hereinafter mentioned covenant and agree as

follows:

1. For the term beginning June 1, 1974 and

ending June 30, 1974, the lessor hereby leases to the

App. 75

Government the following described property, herein-

after called the premises, viz:

As contained in Exhibit I attached

hereto and made a part hereof.

a. Together with a right-of-way for ingress to

and egress from the premises; a right-of-way or

rights-of-way for establishing and maintaining a pole

line or pole lines for extending electric power, and

telecommunications facilities to the premises; and

right-of-way for subsurface power, communication

and water liens to the premises; all rights-of-way to

be over the said lands and adjoining lands of the

lessor, and unless herein described by metes and

bounds, to be by routes reasonably determined to be

the most convenient to the Government.

b. And the right of grading, conditioning, and

installing drainage facilities, and seeding the soil of

the premises, and the removal of all obstructions

from the premises which may constitute a hindrance

to the establishment and maintenance of air naviga-

tion and telecommunications facilities.

ce. And the right to make alterations, attach

fixtures, and erect additions, structures, or signs, in

or upon the premises hereby leased, which fixtures,

additions, or structures so placed in or upon, or

attached to the said premises shall be and remain the

property of the Government, and may be removed

upon the effective date of termination of this lease, or

within 90 days thereafter, by or on behalf of the

App. 76

Government, or its grantees, or purchasers of said

fixtures, additions, structures, or signs.

2. This lease may, at the option of the Govern-

ment, be renewed from year to year and otherwise

upon the terms and conditions herein specified. The

government's option shall be deemed exercised and

the lease renewed each year for 1 year unless the

Government gives the lessor 30 days written notice

that it will not exercise its option before this lease or

any renewal thereof expires; PROVIDED, that no

renewal thereof shall extend the period of occupancy

of the premises beyond the 30th day of June 1994;

4. The Government may terminate this lease, in

whole or in part, at any time by giving ninety days

notice in writing to the lessor, and no rental shall

accrue after the effective date of termination. Said

notice shall be computed commencing with the day

after the date of mailing.

5. No Member of Congress or Resident Commis-

sioner shall be admitted to any share or part of this

lease, or to any benefit to arise therefrom. Nothing,

however, herein contained, shall be construed to

extend to any incorporated company if the lease be for

the general benefit of such corporation or company.

6. The lessor warrants that no person or sell-

ing agency has been employed or retained to solicit

or secure this lease upon an agreement or under-

standing for a commission, brokerage, percentage or

contingent fee, except bona fide employees or bona

fide established commercial or selling agencies

App. 77

maintained by the lessor for the purpose of securing

business. For breach or violation of this warrant, the

Government shall have the right to annul this lease

without liability, or in its discretion to deduct from

the contract price or consideration, the full amount of

such commissions, brokerage, percentage, or contin-

gent fee.

7. The Government shall surrender possession

of the premises upon the expiration or the effective

date of termination of this lease. If the lessor, by

written notice at least thirty days before the expira-

tion or the effective date of termination requests

restoration of the premises, the Government at its

option shall within ninety (90) days thereafter, or

within such additional time as may be mutually

agreed upon, either* (1) restore the premises to as

good condition as that existing at the time of the

Government’s entering upon the premises under this

lease (changes to the premises in accordance with

paragraph 1 above, ordinary wear and tear, damage

by natural elements and by circumstances over which

the Government has no control, excepted) or (2) make

an equitable adjustment in the lease amount for the

cost of such restoration of the premises or the diminu-

tion of the value of the premises if unrestored, which-

ever is less. Should a mutually acceptable settlement

be made hereunder, the parties shall enter into a

supplemental agreement hereto effecting such

* Subparagraphs a and b only

App. 78

agreement. Failure to agree to any such equitable

adjustment shall be a dispute concerning a question

of fact within the meaning of Clause 8 of this lease.

8. (a) Except as otherwise provided in this

contract, any dispute concerning a question of fact

arising under this contract which is not disposed of by

agreement shall be decided by the Contracting Offi-

cer, who shall reduce his decision to writing and mail

or otherwise furnish a copy thereof to the lessor. The

decision of the Contracting Officer shall be final and

conclusive unless within 30 days from the date of

receipt of such copy, the lessor mails or otherwise

furnishes to the Contracting Officer a written appeal

addressed to the Secretary, Department of Transpor-

tation. The decision of the Secretary or his duly

authorized representative for the determination of

such appeals shall be final and conclusive unless

determined by a court of competent jurisdiction to

have been fraudulent, or capricious, or arbitrary, or

so grossly erroneous as necessarily to imply bad faith,

or not supported by substantial evidence. In connec-

tion with any appeal proceeding under this clause,

the lessor shall be afforded an opportunity to be

heard and to offer evidence in support of its appeal.

Pending final decision of a dispute hereunder, the

lessor shall proceed diligently with the performance

of the contract and in accordance with the Contract-

ing Officer’s decision.

(b) This “Disputes” clause does not preclude

consideration of law questions in connection with

decisions provided for in paragraph (a) above:

App. 79

Provided, That nothing in this contract shall be

construed as making final the decision of any admin-

istrative official, representative, or board on a ques-

tion of law.

9. The Lessor grants to the Government the

right to utilize any existing power lines, control lines,

conduits, or other facilities of the Lessor which are

adaptable to use in connection with the purpose of

this covenant.

10. The Lessor hereby warrants that it has

acquired and possesses an adequate real estate right

in the property described herein, and that it is au-

thorized to grant to the Government the rights and

interests set forth herein.

11. The right of ingress and egress and the right

of way herein granted shall insure to the benefits of

the Government and its duly authorized agents,

representatives, contractors and employees.

12. The Lessor agrees not to erect or to allow to

be erected on the property leased hereby or on adja-

cent property of the Lessor, any structure or obstruc-

tion of whatsoever kind or nature as will interefere

[sic] with the proper operation of the facilities to be

installed by the Government under the terms of this

Lease unless consent thereto shall first be secured

from the Government in writing. Further, in order to

insure the continuing proper operation of the ALS

Facility, the Lessor shall prevent the erection of any

structure, or the natural growth of trees, brush that

will cause that structure or natural growth to:

App. 80

(a) protrude an area hereinafter referred to

as the light plane. For obstruction clear-

ance purposes this light plane is defined

as rectangular in shape, 400 feet wide

and symmetrically located about the

ALS centerline; it shall start at the land-

ing threshold and extend 200 feet be-

yond the approach end of the system.

(b) prevent a clear line of sight to all lights

of the system from any point on a sur-

face, one-half degree below the glide

path and extending 250 feet each side of

the centerline, up to 1600 feet in ad-

vance of the outermost light in the sys-

tem.

13. In order to insure the continuing proper

operation of the Instrument Landing System(s), the

Lessor agrees that certain critical and no-parking

areas, which are shown on the attached Drawing No.

1-A-3076, shall be established in the vicinity of the

localizer and glide slope facilities.

Where the critical areas lie within the bounds of

the Airport, the Lessor agrees not to erect or allow to

be erected any structure of any kind or nature nor to

perform or allow to be performed any excavating,

grading or planting operations within these areas,

without the prior concurrence of the Government.

Where the critical areas lie outside the bounds of the

airport, the Lessor agrees to extend every effort to

negotiate agreements with the property owners

involved covering these restrictions.

App. 81

In the event of natural erosion, the Lessor agrees

to perform corrective grading, planting and excava-

tion within the critical area. Such work shall be

accomplished during a period which is mutually

agreeable to both Lessor and Lessee. Where the

critical and no-parking areas lie within the bounds of

the airport, the Lessor agrees not to permit the

presence of parked aircraft, vehicles or equipment

within the critical and no-parking areas, or of free

moving aircraft or vehicles within the critical areas

which are not under the control of tower personnel

when the facilities are in operation. The Lessor

agrees to provide and maintain no-parking signs

within these areas, when required.

Where the critical and no-parking areas lie

outside the bounds of the Airport, the Lessor agrees

to extend every effort to negotiate agreements with

the property owners involved granting the Lessor the

right to establish and maintain no-parking signs on

their properties within these areas.

The Lessor further agrees to provide and main-

tain markings as required, on all paved areas to

delineate the limits of the critical area.

14. The Government waives the requirement

for radio control of traffic in the vicinity of Runway 6

Localizer on the North Perimeter Road.

15. For and in consideration of the benefit to

the Bradley International Airport and the general

public using same, the Lessor agrees to and grants to

App. 82

the Government all terms and conditions stated

herein at no cost.

16. This lease will supersede License DOT-

FA73NE-0308 on commissioning of the CAT-II ILS

system. :

17. The Lessor further agrees that in the event

that relocation or modification of the FAA’s facilities

associated with air navigation or components thereof

hereinbefore described is made necessary by airport

improvements or changes made or caused to be made

by the airport owner (the term “airport owner” used

herein refers to the political subdivision or other

competent authority responsible for the airport

operation and capital improvements), the costs of

such relocation or modification shall be chargeable to

the Lessor; that the Government shall have the

exclusive right to determine how the relocation or

modification project shall be accomplished including,

but not limited to, the engineering, site selection,

procurement of equipment; construction, installation,

testing, flight inspection and recommissioning of the

facility; that upon submission by the Government of

an estimate of the relocation or modification costs,

the Lessor shall transfer to the Government the

funds required for the relocation or modification; that

in the event the actual costs of relocation or modifica-

tion exceed the estimate submitted by the Govern-

_ment the Lessor shall pay only the actual costs; that

the Government shall have the exclusive right to

determine when a relocation or modification of a

App. 83

facility or component thereof has been made neces-

sary by airport improvements or changes made or

caused to be made by the airport owner, and that this

decision shall be final. It is agreed by and between

the Lessor and the Government that in the event the

actual costs of relocation or modification of a facility

or component thereof is less than the estimate sub-

mitted by the Government the Lessor shall pay only

the actual costs.

18. The following changes were made to this

Lease prior to execution: _

a. Deletion of certain wording in paragraph

b. Deletion of paragraph 3 in its entirety.

c. Addition of certain wording in para-

graph 7.

IN WITNESS WHEREOF, the parties hereto

have hereunto subscribed their names as of the date

indicated.

WITNESSES

/s/ Sandra L. Barones

/s/ Madeline P. Mckinnis

STATE OF CONNECTICUT

DEPARTMENT OF

TRANSPORTATION

By /s/Joseph B. Burns (Seal)

Joseph B. Burns

Commissioner

‘

;

‘

App. 84

Date: June 11, 1974

/s/ George J. Bates

/s/ Susan R. Pitt

UNITED STATES OF AMERICA

DEPARTMENT OF

TRANSPORTATION

By /s/ Roland O. Bisson Jr. (Seal)

Date: May 24, 1974

This Agreement is made with the approval of the

undersigned, under the provisions of Section 13b-42(b)

of the General Statutes of Connecticut, as revised.

/s/ C. Perrie Phillips /s/ Gerald J. Nelson

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.