Petition for Writ of Certiorari — Williams v. City of Okoboji

Supreme Court brief1992

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Supreme Court, U.S,

‘a

92-182 FILED

| JUL 28 1992

No.

| OFRGE OF THE CLERK

IN THE SUPREME COURT OF THE UN#@5b-STATES

OCTOBER TERM 1991

LORNA L. WILLIAMS,

Petitioner

THE INCORPORATED CITY OF OKOBOJI, IOWA,

BEN D. SAUNDERS, City Administrator;

LEO PARKS, Mayor; HAL REED, CHRIS

BJORNSTAD, KIRK STAUSS, CHARLENE

HOUGE, JAMES GOLDEN, Council Members,

and MICHAEL CHOZEN, City Attorney,

Respondents

PETITION FOR A WRIT OF CERPIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

Henry J. Haugan

402 Maple Street

West Des Moines,IA.50265

(515) 277-4700

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

CAN THE APRIL 9, 1991 ORDER OF THE DISTRICT

COURT, AFFIRMED BY THE 8TH CIRCUIT BE SUSTAINED

WHEN IT IS IN OBVIOUS AND DIRECT CONFLICT WITH

THE HOLDING OF THIS COURT IN DEAKINS V. MON-

AGHAN, 484 U.S., 193(1988) IN WHICH THIS

PETITIONER AND MONAGHAN BOTH ALLEGED DAMAGES

CLAIM FOR CONSTITUTIONAL VIOLATIONS WHICH

COULD NOT BE REDRESSED IN PENDING STATE COURT

PROCEEDINGS. THE EIGHTH CIRCUIT ORDER IS IN

APPARENT CONFLICT WITH ENGLAND V. LOUISIANA

ST. BD. OF MEDICAL EXAMINERS, 375 U.S.411, 422,

423 (1964).

ON THE MOTION TO RECONSIDER, SHOULD THE 8TH

CIRCUIT HAVE HELD THIS CASE OPEN TO RECEIVE

THE RESPONSE FROM THE IOWA SUPREME COURT ON

PENDING QUESTIONS CERTIFIED OF STATE LAW WHICH

WERE ATTACHED TO THE MOTION TO RECONSIDER AND

WHICH MOTION WAS DENIED.

III

CAN THE APRIL 9, 1991 ORDER OF THE DISTRICT

COURT APPROVING THE PLACING OF AN EX PARTE

LIS PENDENS ON WILLIAMS' PROPERTY BE AFFIRMED

BY THE CIRCUIT COURT WHEN THE DISTRICT COURT'S

APPROVAL DIRECTLY CONFLICTS WITH CONNECTICUT

V. DOEHR, US » 111 S.Ct. 2105.(1991)

DOES THE PENDING STATE INJUNCTION ACTION, NOT

AUTHORIZED BY THE STATUTE Sec. 414.20, IOWA

CODE, FOR WANT OF NON-COMPLIANCE WITH NOTICE

OF PUBLIC HEARING (Sec. 414.4, 414.5, IOWA

CODE), QUALIFY AS "AN ONGOING STATE JUDICIAL

PROCEEDING" UNDER MIDDLESEX COUNTY ETHICS

COMM. V. GARDEN STATE BAR ASS'N., 457 U.S.

423, 432 (1982).

DOES THE “BAD FAITH" OR "HARASSMENT"

EXCEPTIONS TO YOUNGER ABSTENTION APPLY

BECAUSE RESPONDENT CITY OFFICIALS KNEW THAT

THE ATTEMPTED AMENDATORY ORDINANCE QUOTED IN

THE STATE COURT PETITION WAS VOID.

DOES THE ATTEMPTED AMENDATORY ORDINANCE FALL

WITHIN THE EXCEPTIONS TO A YOUNGER ABSTENTION

WHEN, AS ALLEGED, IT IS UNCONSTITUTIONAL

FACIALLY AND AS APPLIED: SUCH ATTEMPTED

AMENDATORY ORDINANCE READING AS FOLLOWS:

"Residential purposes:

The intent to use and/or the use of a room

Or group of rooms for the sleeping, living and

housekeeping activities for the same person or

the Same group of persons on a permanent or

semi-permanent basis of an intended tenure

of one month or more."

Vil

WHETHER THE IOWA SUPREME COURT APPEAL SHOULD

BE STAYED UNTIL THE CONSTITUTIONAL QUESTION IS

DETERMINED BY THE FEDERAL COURT.

VIII

BECAUSE THE IOWA SUPREME COURT HAS DECLINED TO

CERTIFY QUESTIONS OF STATE LAW TO DISPOSE OF

THE CONSTITUTIONAL QUESTION, OR BECAUSE

YOUNGER ABSTENTION WAS INAPPROPRIATE IN THE

FIRST INSTANCE, IS THE FEDERAL COURT READY TO

HEAR THE CONSTITUTIONAL CHALLENGE AND OTHER

STATED FEDERAL CLAIMS. .

(England V. Louisiana State Board of Medical

Examiners, 375 U.S. 411, 422 (1964)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

(Pages in Petition)

Aldrich v. Aldrich 375 U.S.75 (1963) p.11,14

B & H. Investment Inc v. City of Coralville

209 N.W.2d 115,117 (1a.1973) _p.15

Ballard v. Wilson 856 F.2d 1568,1571(CCA 5)(1988) p.10

Clay v. Sun Ins.Off. 363 U.S.207,212 (1960) p.13

Connecticut v. Doehr U.S. 111 $.€.2105 (1991p15-22

Deakins v. Monaghan 484 U.S.193 (1988) Pp.i,6,7,8,10,22

Dresner v. City of Tallahasse 375 U.S.136 (1963)Pp11,14

Dunn v. Blumstein 405 U.S.330,334,338 (1972) ~ p.15

England v. Louisiana State Board of Medical Examiners

375 U.S. 411, 415,417,422-23 (1964)Pp.i,6,14,19,20,21 ,22

Green v. American Tobacco Co. 304 F.2d 70,86 (1962)p.12

Grove v. Bush 86 1a.94; 53 N.W.88 (Iowa 1892) p.1l

Herb. v. Pitcairn 324 U.S.117 (1944) p.11.20

Herb v. Pitcairn 325 U.S.77 (1945) p.12

Houston v. Hill 482 U.S.452,468 (1987) p.15

Jewell Tea Co. v. Steward 142 Ia. 353; 120 N.W.962

“(Iowa 1909) p,11

Linn County v,City of Hiawatha 311 N.W.2d 95,100 (Iowa)

T1981 ) p.13

Lynch v. Household Fin.Corp. 405 U.S. 538,544 p.17

McCurray v. Allen 606 F.2d 795,799 (CCA 8 1979) Pp.7,10

Middlesex County Ethics Comm. v. Garden State Bar

Ass'n 457 U.S.423,432 (1982) Pp i.6,8 ,22

TABLE OF AUTHORITIES (con't)

(pages in Petition)

Mitchum v. Foster 407 U.S.225,242 (1972) p.18

Myers v. Nebraska 262 U.S.390,399-401(1923) p.17

Moore v. City of East Cleveland 43] U.S.494 (1977) p. 17

Nectrow v. Cambridge 277 U.S.183,188 (1928) p.17

New Orleans Public Service Ins.v. New Orleans

491 U.S.350,372 (1989) p.18

Potomac Electric Power Co. v. Curran

484 U.S.1022 (1988) p.10

Shapiro v. Thompson 304 U.S.618-631,634(1969)p. 17

Shelley v. Kraemer 334 U.S.1,10, (1948) Dp.

Younger v. Harris 401 U.S.37,44 46,48,49,53

(1971) Pp. £1. 6,7.6,9.59

Uniform Laws Annotated (1992)

West Publishing Company, Vol. 12 (pocket parts

pagé:20)Table of jurisdictions having adcpted

"Uniform Certification of Questicns of

Law Act". p.12,13 & Appendix p.

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1991

LORNA L. WILLIAMS,

Petitioner

THE INCORPORATED CITY OF OKOBOJI, IOWA

BEN D. SAUNDERS, City Administrator;

LEO PARKS, Mayor; HAL REED, CHRIS

BJORNSTAD, KIRK STAUSS, CHARLENE

HOUGE, JAEMS GOLDEN, Council Members,

and MICHAEL CHOZEN, City Attorney,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

Petitioner, Lorna L. Williams in this

42 U.S.C. 1983 action respectfully prays

that a writ of certiorari issue to review

the Opinion and Orders of the United States

Court of Appeals for the Eighth Circuit

entered in this proceeding.

OPINIONS BELOW

IN THE UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT, No. 91-2396; ORDER filed

March 19, 1992, (not reported) affirming the

District Court ccc App. p.1-4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT, No. 91-2396NISC:

ORDER denying Motion for Rehearing, filed

May 14, 1992 ...-- oe RDO. Bade

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT, No. 91-2396NISC:

ORDER Denying Motion for Reconsideration

filed June 5, 1992 .«.e<+s ABRs P.O.

(QUESTIONS CERTIFIED TO IOWA SUPREME

COURT PROCEEDINGS ATTACHED TO MOTION

TO RECONSIDER, App. pp.37-39 )

IN THE UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF IOWA, WESTERN DIVISION,

No. 89-4058: ORDER (not yet published) filed

April 9, 99h, csocescvcces APP. Pe fie.

IN THE UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF IOWA, WESTERN DIVISION, No.89-4058,

ORDER: filed May 21, 1991, denying Motion

for Amendment to Findings and Conclusions in

ORDER of April 9, 1991 ..... App. p.13.

APPEAL JURISDICTION

28 U.S.C. Sec. 1254 (1)

United States Supreme Court Rule 10(c) and

Rule 13.

CONSTITUTIONAL PROVISIONS

Constitution of the United States:

FIRST AMENDMENT

NINTH AMENDMENT

FOURTEENTH AMENDMENT

UNITED STATES STATUTES

1983 20 U.S.C. 2201

42: 0.3.2

42 U.S.C. 1985(c) 28 U.S.C. 1343

42 U.S.C. 1988 76 0.8.0. 22863

IOWA CODE -1991

Sec. 414.4 (Procedure to Amend Ordinance)

Sec. 414.5 (last paragraph -414.4 applicable)

Sec. 414.20 (Authority to correct violations)

Chapter 684A - QUESTIONS OF LAW IN SUPREME

COURT CERTIFIED

684Ai1 Power to Answer

684A.2 Method of Invoking

684A.8 Power to Certify (includes "motion

of a party)

684A.1i11 Title ("Uniform Certification of

Questions of Law Act.")

STATEMENT OF THE CASE

For eight peaceful years, Respondent

Williams rented out her two-family private

dwelling in Okoboji, Iowa for periods of one

and two weeks terms, under a permit from

the City for building the second unit for

rentals and under the then 1972 Ordinance.

There never was any complaint from the city

during these eight years. There was never

any disturbances at her place.

Without notice of public hearing required

by Sec. 414.4, 414.5, Iowa Code, the City

Council on August 9, 1988, attempted to

adopt the following Amendment, redefining

"Residential purposes" as follows:

“Residential purposes:

The intent to use and/or the use of a room or

Group of rooms for the Sleeping, living, and

housekeeping activities for the Same person

or same group of persons on a permanent or

semi-permanent basis of an intended tenure

of one month or more."

(The words “living, sleeping" were rever-

sed. Other underscored words were added. )

On May 16, 1989, Respondent Michael

Chozen, City Counsel, by long-distance

telephone call, told Petitioner Williams about

the 1988 amendment and told her to break all

outstanding leases for less than one month.

1 Petition in the state court, Equity No.

—

®£193, and obtained an ex

TEMPORARY INJUNCTION without notice and

nearing and filea an ex parte lien upon her

real estate. which lien stiil remains)

The PETITION, never amended, recited

that the 19/72 Ordinance had been amended

und quoted the "Sleeping, living" portion of

} + + YY =| ry) Amo

cne atte ptea amendment.

Max C 7 > « ae _ ,

On May 19, 1989, five days before

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Respondent City filed the Petition, Respondent

‘

City Attorney Michael Chozen, had his atten-

tion called to the fact the amendment was

void for want of statutory enactment proced-

ures. (App. p.40_)

On June 16, 1989 at 8:06 a.m. Respondent

filed this action in the United States District

Court for the Northern District of Iowa,

alleging the ex parte Order for Temporary

Injunction and lis pendens lien, showing

great and immediate irreparable injury, and

praying for damages for constitutional

violations. (App. p.14-19)

Ignoring Petitioner's damages claim, and

Petitioner's MOTIO!' TO AMEND FINDINGS citing

cins V. Monaghan, Supra, the Court entered

its ORDER herein dismissing (not holding in

abeyance) the entire case. The Court dis-

missed based on Younger abstention grounds,

Citing Middlesex Ethics Committee V. Garden

State Bar Ass'n., supra. (App. p. 7-12)

The order also denied stay of the state court

proceedings.

Meanwhile, with the Stay denied in the

ederal Court, the Petitioner, after filing

the NOTI€E—-required under England V. Louisiana

State Board of Medical Fxaminers 375 U.S. 41l,

415, the case was tried in State Court.

The 8th Circuit affirmed the District

Court's Order dismissing the entire case

including the damages claim. It denied a

rehearing.(App. p._5 ) It denied the Motion

for Reconsideration even though there were

proceedings in the IOWA STATE SUPREME COURT

(highest Court in the State) on Questions

certified of State law were attachec. (Motion App.

p.26-30; Exhibits attached App.p.31-39)

REASONS FOR GRANTING WRIT

BASED ON DEAKINS BY THIS OPINION OF THE 8TH

CIRCUIT, THE UNIFORMITY AMONG THE CIRCUITS

FOR STAY (NOT DISMISSAL) IF YOUNGER ABSTENTION

IS APPROPRIATELY APPLIED IS VIOLATED, AND

AGAIN THERE IS A SPLIT AMONG THE CIRCUITS.

THE OPINION OF THE 8TH CIRCUIT IN THIS

CASE AFFIRMING THE DISMISSAL OF THE ENTIRE

CASE, INSTEAD OF STAYING DAMAGES CLAIMS IN

THE FEDERAL COURT, DENIES PETITIONER WILLIAMS

EQUAL PROTECTION; THE PLAINTIFFS IN THE CASES

CITED IN DEAKINS HAD THEIR FEDERAL CASES

STAYED NOT DISMISSED.

Iil

THE OPINION OF THE 8TH CIRCUIT IS IN

- CONFLICT WITH ITS EARLIER OPINION, MCCURRY

v. ALLEN, 606 F.2d 799 (CA 8 1979), NOTED

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ARGUMENT

DEAKINS V. MONAGHAN

The Fifth Circuit in Ballard V. Wilson,

856 F.2d 1568, 1571 (CA5 1988) reversed its

prior holdings, saying:

"Just last term in Deakins V. Monaghan,

the Supreme Court held that even when Younger

abstention is required, a federal district

Court has no discretion to dismiss cognizable

claims for monetary relief which cannot be

redressed in a pending state proceeding."

This Court in Potomac Electric Power Co.

Vv. Curran, (CA4) granted Certiorari, 484 U.S.

1022 (1988), vacated the judgment and remand-

ed the case "for further consideration in

the light of Deakins V. Monaghan."

The decision of this 8th Circuit in this

case now fails to follow Deakins. Prior to

Deakins, the Eighth Circuit was one of the

circuits which had stayed the damage claim,

instead of dismissing it. See: McCurry V.

Allen, 606 F.2d 795+799(CCA 8,1979).And, the

damages Claim for constitutional violation in

obtaining the ex parte Order for Temporary

Injunction, stated in this federal case, Cannot

be redressed in that pending state court action;

Ve I

Grove V. Bush, 86 Ia.94, S3NW88 (1892);

Jewell Tea Co. V. Steward, 142 Ia. 353; 120

NW962 (1909).

MODE OF EXPEDITING LITIGATION

Here Petitioner Williams properly used the

question Certification procedure to shortcut

the lengthy State Appeal process. (App. pp. 31-39)

She attached the Iowa Supreme Court

proceedings to her MOTION TO RECONSIDER filed

with the 8th Circuit. (App. p.26-p.39 ). Without

comment, the 8th Circuit denied the Motion

before the state court had answered. (App.p.6)

This Court has long approved the use of this

method to short-cut federal litigation even at

the United States Supreme Court level. Dresner

Vv. City of Tallahassee, 375 U.S. 136 (1963)

Aldrich V. Aldrich, 375 U.S. 75 (1963).

In Herb V. Pitcairn, 324 U.S. 117 (1944)

this Court continued the case to receive the

certifying answer from the state of Illinois

State Supreme Court, to be able to render

its decision after receiving the answer. See

Herb V. Pitcairn, 325 U.S. 77 (1945).

Iowa permits "a party to the cause" to

invoke this method. (684A.2 and 684.8) and

Chapter 684A, Iowa Code,is attached hereto

aS an exhibit. (App. P_ 44-45)

This method can be utilized at any Stage

of the proceeding. On the Motion for Rehear-

ing when questions certified, as here, were

urged, the United States Court of Appeals for

the Sth Circuit, reopened the case it had

ear ier dismissed for the purpose of receiv-

ing certified questions to the Florida

Supreme Court. Green V. American Tobacco Co.,

304F.2d 70,71,86 (1962)

The 8th Circuit, in this instant case

Should have also retained jurisdiction to

receive the answers from the Iowa Supreme

Court to the Certified questions.

According to West, Uniform Laws, Vol. 12

besides Iowa, District of Columbia and Puerto

Rico, twenty-eight other states have adopted

this Uniform Certification of Questions of

Law Act, Since its approval in 1967 by the

National Conference on Uniform State Laws

and the American Bar Association.7* (App.p.43)

Iowa has been one of the states to early

use this alternative to lengthy state appeals

to determine state law. In Linn County

Vs City of Hiawatha, 311NW2d97,190(TIa) (1981)

the U.S. District court of Iowa Northern

District certified questions to the Iowa

Supreme Court. That case, involved

the Iowa law on "free use of real estate

Clearly not prohibited by city Ordinance."

(See Questions Certified App. p.37 -39 )

he in Ciaay VV, Sun Fae. Off... 363 U.8.207;

212 (1960) said: "The Florida Legislature

with rare foresight, has dealt with the

problem of authoritatively determining un-

resolved state law involved in federal lit-

igation by a statute which permits a federal

court to certify such doubtful questions of

State law to the Supreme Court of Florida

for its decision... where a federal constit-

utional question might be mooted thereby...

Citing Allegheny Co. V. Mashuda Co.,360 U.S.

185, 189 "and cases cited"; See also Meredith

V. Winter Haven, 320 U.S. 228, 236.

In England V. Louisiana State Board

of Medical Examiners, 4a Useoe @hh0 S22

(1964) said:

Another alternative is for the District

Court to follow the

one iS available. The

Court iS authorized to

answering certificates

laW questions tendered

courts. We use

State law perplexities

ahassee, 3/5 U.S. 1363

Sid Use Toe oer s

Cannot require

procedure;

ide such a

independence of the

insisting on prompt

encourage its use.

certificate

that procedure on

route, when

Florida Supreme

provide by Rule for

concerning state

by the federal

Florida

Tall-

Aldrich,

(Dresner V.

Aldrich V.

federal

judications

the States to prov-

but by asserting the

and

will

courts

Ifl.

BAD FAITH AND HARASSMENT EXCEPTIONS TO YOUNGER

ABSTENTION

Five days before filing the Petition to

enforce this amendment which had never been

legally enacted by the City, the Respondents

Knew it was void. (Affidavit of Attorney Earl

Maahs Spirit Lake, Iowa re: telephone conf-

erence with City Attorney, Respondent Michael

Chozen, App. p.40-41) . younger exceptions

include such bad faith and harassment... B&H

Inv. Inc.V. City of Coralville, 209NW2d 115,

137 (Za. i973}.

UNCONSTITUTIONAL (EX PARTE

(LIS PENDENS LIEN

The continuing (over 3 years) ex parte

lis pendens lien on Petitioner's real estate

Causes her continuing great and immediate

.irreparable injury. Dismissing Petitioner's

federal case, in which she seeks to have the

lien released as wrongful violation of her

constitutional rights, conflicts with the

recent holding of this Court in Connecticut

THE CITY ORDINANCE FACIAL AND "AS APPLIED"

CHALLENGE

A. As applied:

In her Complaint, as amended, Petitioner

alleged this ordinance, which "shows on its

face a "durational residency" and "occupant"

restriction, as the basis for Respondent's

taking away her rental-property right which

had rightfully been grantedher by the City.

Here, as in Dunn Vv. Blumstein, 405 U.S.

330, 324, 338 (1972) First Amendment rights

and Fourteen Amendment rights were impinged

upon. At length therein, this Court reviews

its prior holdings on "durational residency"

cases.

Involving a City Ordinace, as is here

involved, the majority of this Court, in

Houstan V. Hill, 482 U.S. 452, 468 (1987) said:

"Even if this case did not involve a

facial challenge under the First

Amendment, we would find abstention

in appropriate ...."

Citing cases, including the land use case

Hawaii Housing Authority v. Midkiff, 467 U.S.

229, 236 (1984) and other decisions of this

Court.

B. Facial Challenge:

This ordinance containing a durational

residency requirement to travel to the City

of Okoboji, conflicts with the fundamental

rights of tenants, entwined with rights of

Petitioner Williams, Shapiro Vv. Thompson

394 U.S. 618, 629-631, 634 (1969). Other

cases of this Court are also implicated,

such as:

Nectrow V. Cambridge, 277 U.S.183,188

(1928) (Ordinances are subject to constitu-

tional rights); Lynch V. Household, 405 U.S.

538,544 citing Shelley V. Kraemer, 334 U.S.

1, 10 (1948) (rights of U.S. Citizens to

hold, buy, sell and enjoy their real estate)

Myers V. Nebraska, 262 U.S. 399-401 (1923)

(right to freely contract and right to

establish a home); Moore V. City of E.Cleveland

431 U.S. 494 (1977) (ownezs right to

designate persons to occupy owner's property)

It seems under the decisions of this

Court that the Respondent city cannot require.by

- ordinance, that only permanent or semi-permanent

| residents (defined as persons staying one month

or more if they are the same person or same

group of persons) can reside in Okoboji, lowa.

Under the wording of the Ordinance, others are

excluded.

17a

And, until the injunction action in State

Court, they had not been excluding persons unable

to reside in Okoboji, lowa for one month or more.

Since April 1980, under the permit from the

Respondent City and without objection, Petitioner

had been renting the second dwelling unit in her

two-family home to families traveling to reside

therein while enjoying Lake Okoboji during their

one-or-two-week vacation time.

As applied. under the ordinance. the Res-

pondent City and Respondent officials with know-

ledge. violated Petitioner's liberty and property

rights under the First and Fourteenth Amendments.

Facially, the "durational residency” and

"occupant" violations in the text of the offend-

ing ordinance, are obvious.

[The amendment Ordinance 99 is still on

bocks;and Respondents claim it was re-enacted,

but some weeks after they had obtained the ex

parte ORDER for and issuance of temporary

injunction and placement of ex parte lis

pendens lien].

THE PENDING STATE APPEAL SHOULD BE STAYED

This 42 U.S.C. 1983 case falis Within

the exceptions to Sec. 28 U.S.C.2283

Mitchum V. Foster, 407 U.S.225, 242(1972).

Of the multiple federal claims stated

in the Complaint, as amended2, only a

narrow issue is common to both the state

and federal courts:

Is the City Ordinance re-defining

"Residential purposes" constitutional,

facially or as applied?

In New Orleans Pub. Sev. Inc., V. New

Orleans, 491 U.S. 350, 372 (1989), this

court remarked:

"It is, insofar as our policies of federal

comity are concerned, no different in

Substance from a facially challenge to an

allegedly unconstitutional statute or

zoning ordinance--which we would assuredly

not rquire to be brought in state courts.

See Wooley V. Maynard, 430 U.S.705, 711(1977)

The appeal pending in the State Supreme

Court under Sec. 28 U.S.C.2283 should be

Stayed until the federal court has determined

the constitutional issue.?

2 In this federal case multiple federal

Claims were stated: 1) monetary damages for

due process violation in obtaining the

temporary injunction; 2) violation of

Vil

ALTERNATIVE PROCEDURE TO STATE APPEAL

COMPLETED

The Iowa Supreme Court had questions

certifying state law properly before it.

(App. p. 3]-39: Iowa law App.p.43-45).

It declined to dispose of the case on

non-constitutional grounds--state law. It

declined to reverse the decision of the

State district court which held the durational

residential restriction was constitutional

(without discussing "right to travel" and

other factors in the various holdings of

this court.)

Without comment, the Iowa Supreme Court

denied the Motion to Certify questions.

(App. p_42).

The Notice of appeal.contained the requir-

ed reservation under England V. Louisiana

ex parte lis pendens 3) relief from future

constitutional violations, pattern of

past constitutional infractions having been

alleged 4)declaratory judgment that ordinance

is unconstitutional and 5) Stay of state case.

3 The District Court in the state proceedings

did not reach “same person" or "Same group

of persons" restriction.

State Board, supra, "to return to the

Federal Courts for a determination of her

Stated federal claims, including declaratory

judgment of the ordinance involved in this

matter." {NOTICE OF APPEAL, App.31-32)

This court in the footnote at p.41ll of

the England case, 375 U.S. said:

And if the state court has declined to

decide the state question because of

the litigant's refusal to submit without

reservation the federal question as well,

the District Court will have no alterna-

tive but to vacate its order of

abstention.

VIII

THE EIGHTH CIRCUIT ORDER CONFLICTS WITH

ENGLAND V. LOUISIANA STATE BD. OF MEDICAL

EXAMINERS

The ORDER of the Eighth Circuit prematurely

denied Petitioner's Motion to Reconsider. To

that Motion were attached all the pending

proceedings in the Iowa Supreme Court on

certified questions. (App. p.6 Motion & Exh.26-39)

At page 128, Herb V. Pitcairn, 324 U.S.,

supra, this court in like circumstances said:

These causes are continued for such

period as will enable counsel for

petitioners with all convenient speed

to apply to the Supreme Court of Illinois

CS EIIEES 5

for amendment or certificate, which

will show whether ... Or whether decision

of the federal question was necessary

to the judgment rendered.

In England Vv. Medical Examiners, (England

V. Louisiana State Board Of Medical Examiners, )

Supra, this court permitted those litigants to

return to the federal court for determination

Of therr federal constitutional Claim, follow-

ing an adverse decision in the state courts.

The Eighth Circuit should have continued

the appeal pending an order from the Iowa

Supreme Court, as in Pitcairns.

Following receipt of the Order denying

certified questions to the Iowa Supreme Court,

which, like in England, was adverse to Petit-

ioner, the Eighth Circuit should have remanded

the case to the federal district court for

reinstatement.

———

CONCLUSION

This Court never intended Younger

abstention doctrine, by "the notion of the

comity" as here applied, to deny a United

States citizen complete access to the federal

court for a hearing on stated cognizable

federal claims. Deakins V. Monaghan, supra.

Middlesex County Ethics Comm., supra, was

misapplied.

Petitioner, here, has complied with the

demands of both Federal and State Courts.

The alternative to the appeal, questions

certified to Iowa's highest Court, has been

completed.

WHEREFORE, Petitioner requests this Court

to grant certiorari, vacate the ORDER of the

Federal District Court which dismissed the

federal case and denied the stay of the state

case, dated April 9, 1991, and remand this

case for further proceedings in the light of

Deakins V. Monaghan, supra, Connecticut V.

Doehr, Supra, and England V. State Board of

Medical Examiners, supra, and hasten a

hearing on

requests

relief as

such

the merits. Petitioner also

other or alternative equitable

the Court seems just.

spectfully submitted,

Dev ge—

Haugan

torney for Petitioner

INDEX TO APPENDIX

UNITED STATES COURT OF APPEALS

ORDER filed March 19,1992 Pp.1-4

(IN PETITION: Pp. 2)

UNITED STATES COURT OF APPEALS

ORDER filed May 14, 1992 p.5

(IN PETITION Pp. 2, 6)

UNITED STATES COURT OF APPEALS

ORDER filed June 5, 1992 ia

(Denial Motion to Reconsider)

(IN PETITION Pp. 2. 7)

UNITED STATES DISTRICT COURT N.D.IA Pp.7-12

ORDER filed April 9, 1991

(IN PETITION Pp. 2, 6)

In PEAT TER RTAJES DISTRICT COURT N.D.IA. p.13

COMPLAINT and AMENDMENT -(pages

re: Relief sought, Dist.Ct.N.D.Ia.) Pp.14-19

(IN PETITION Pp. footnote p.18-19 : p.6)

MOTION FOR AMENDMENT OF FINDINGS AND

ORDER FILED April 9, 1991 (Dist.Ct.) Pp.20-22

(IN PETITION Pp. (Re: Order p. 2. p.6)

REPLY TO RESISTANCE TO PLAINTIFF'S

MOTION FOR AMENDMENT OF FINDINGS AND

ORDER AND JUDGMENT FILED APRIL 9, 1991

(Dist.tt.8.0. te Ppo.e

(IN PETITION Pp (Re: Order ,p. 2,)

UNITED STATES COURT OF APPEALS--MOTION

TQ RECONSIDER DENTAL OF PETITION

WwW

ine)

FOR REHEARING In Petition p.7. p.11,p.20Pp.26-30

ATTACHMENTS TO MOTION TO RECONSIDER’.

-NOTICE OF APPEAL (To Iowa Supreme Ct)Pp.3]-32

(IN PETITION Pp7 p.20 )

MOTION FOR et eng OF IOWA LAW

CIN petit 1b OE BAS COURTS (in Iowa Sup.Ct.9?p.33-36

QUESTIONS OF LAW CERTIFIED PURSUANT TO

CHAPTER 684A,Code of Iowa and Attached

to MOTION FOR CERTIFICATION (Ia.Sup.Ct.)

QIN PETITION Pp. 7, 13,19) Pp .37+29

(INDEX TO APPENDIX (Con't)

AFFIDAVIT (filed in the District Court )Pp.40

41. (IN Petition P. 5, 15)

IN THE SUPREME COURT OF ZTOWA, ORDER (denying

MOTION for certification of Iowa Law,

filed July 9, 1992) Pp.42

(IN PETITION p. 19)

TABLE FROM WEST'S UNIFORM CERTIFICATION

OF LAW ACT (Jurisdictions where

adopted--1992) p.43

(IN Petition p.yv. 8.3)

IOWA CODE - 1991 - "Questions of Law in

Supreme Court Certified) Chap.684A p.43

‘IN PETITION p.19)

IOWA CODE - 1991 6844.1(Power to Answer) p.44

IOWA CODE - 199] 684A.2(Method of invok-

ing) In Petition: p.12 p.44

IOWA CODE - 199} 684A.8(Power to Certify)

(includes party to action) p.45

(IN Petition p.3 . P.12 p.19)

IOWA CODE - 199] 414.4 zoning (To Amend)

(Notice for public hearing)

IOWA CODE - 1991 414,5 (Amendments Incl)

IOWA CODE - 199] 414.20 (To correct vio-

lations if ordinances made under

authority of that chapter) p.47

(In Petition p. 3)

. 46

Loe)

42 U.S.C.1983 (Civil Rights Act) p.48

42 U.S.C. 1985 (c) p. 48

42 U.S.C. 1986 p.49

42 U.S.C. 1988

28 U.S:€.1342 p.50

ro U.S... 2201 D. 5]

fo U.S.C. 2283 p.52

(In Petition p. 3)

CONSITUTION OF THE UNITED STATES

AMENDMENTS 1.9.14 DP. oe

(In Petition p. 3)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 91-2396

Lorna L. Williams, )

Appellant

The Incorporated City

Of Okoboji, Iowa; Ben

Appeal from the

United States

D. Saunders, City ) District Court

Administrator; Leo ) for the Northern

Parks, Mayor; Hal Reed, District of Iowa.

Council Member; Chris )

Bjorstad, Council (UNPUBLISHED)

Member; Kirk Stauss, )

Council Member; Charlene )

Houge, Council Member;

Michael Chozen, Council )

Member; J.L. Baughman;

James Golden,

Appellees.

Submitted: March 9, 1992

Filed: March 19, 1992

Before FAGG and BEAM, Circuit Judges, and

GAITAN, *District Judge.

*The HONORABLE FERNANDO J. GAITAN, JR.,

United States District Judge for the Western

District of Missouri, Sitting by designation.

PER CURIAM.

App. 1l

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n her pro se complaint under 42 U.S.C.

terfered wit her propert Lnterests, het

t it to equal protection, and constituted

1 taking without jue process. She further

,Lieged that tne Slty’'s enforcement o tne

,IICaNd \O > COU?) 5 mor 4 >) list “Aad Tha

vUusea ne) Severe mentad ALStIress. L€

App. 4

Order E}

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App.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA (Filed

WESTERN DIVISION April 9, 1991

LORNA L. WILLIAMS,

THE INCORPORATED CiTy

OF OKOBOJI, IOWA, et al,

Defendants

The defendants have filed a motion

for summary judgment which Plaintiff

Williams has resisted. Ms. Williams has in

turn filed an amended motion for stay of

State court proceedings. The defendants

have resisted that motion. The court held

a hearing on the motions and, after consider-

ing the written and oral arguments as well

aS supplemental correspondence from the

parties, grants the defendants' motion for

Summary judgment on abstention grounds.

Williams' motion for stay is denied.

Background

Ms. Williams owns a duplex on Lake

Okoboji and rents out half of it for short

periods of time. She challenges a City of

App.

HOjJl Ordinance which forbids persons who

live on the lake from renting their broperty

nm residential areas Ir periods of less

tha lays. e Claims the ordinance

aS unconstitutionall enacted and is

Inconstitutional as ar lied to her She has

filed this action under sec.42USC L983 aqgain-

St the “lity, the cit administrator the

YOr, all the Clty council members, and

Tlty attorney.

ertore Ms. Williams initiated this suit,

City of Okoboji filed Sult against her

‘

ickinson ‘ounty Court for her alleged

lation of the Ordinance. The Dickinson

nty action is still pendina. The

-endants now move for Summary judgment

UlnNg, among other things, that this court

—

d abstain from hearing this case. Ms.

liams asks this court to enjoin further

ion in the state court proceedinas.

Discussion

Principles of equity, comity, and feder-

Sm limit this court's jurisdiction.

App. 8

Younger V. Harris, 401 US 37, 44 (1971).

In Allegheny Corp. V. McCartney, 896 F2d

1138, 1142 (8th Cir. 1990), the court of

ippeals discussed Younger and its underlying

principles:

Younger abstention promotes the

interests of both state and federal govern-

ments. As the Court announced in Younger,

'(T)he National Government, anxious t}

it may be to vindicate and protect federal

rights and federal interests, always

endeavors to do so in ways that will not

unduly interfere with the legitimate activ-

ities of the States.' Id. Younger absten-

tion is also founded, in part, on the princ-

iple that'the National Government will fare

best if the States and their institutions

are left free to perform their separate

functions in their separate ways.' Id. I

response tothese concerns the Younger Court

held that, except in extraordinary circum-

Stances, federal courts should not enjoin

pending state criminal prosecutions. Id.

at 34, 91 S. Ct. at 755.

Following Younger V. Harris,the Sup-

reme Court extended the Younger doctrine to

noncriminal state court proceedings, includ-

ing administrative proceedings, if: (1)

there 1S an ongoing state judicial proceed-

ing; (2) important state interests are

implicated; and (3) there is an adequate

opportunity to raise constitutional challen-

ges in the state proceedings. Middlesex

County Ethics Com. V. Garden State Bar Ass'n,

Go? Use. 423, 432... (1982).

Applying the three factors Set out in

the Middlesex County Ethics Committee case,

this court deems Younger abstention approp-

riate here. First, needless to say, the

pending action in Dickinson County Court

qualifies aS an ongoing state judicial

proceeding. Second, land use disputes

implicate important local and state interest-

s. See, for example, Hill V. City of El

Paso, Texas, 437 F2ZA 352, 357 (Sth Cir.1971)

And third, Ms. Williams will have adequate

opportunity to raise her constitutional

challenges in the state proceedings. The

Dickinson County Court's decision on the

City of Okoboji's motion for summary judge-

ment makes Clear Ms. Williams' impending

opportunity to address the ordinance's

constitutionality: "The question of

constitutionality of the ordinance remains.

Plaintiff's motion for summary judgment

must fail and this case should proceed to

trial for such determination." The Incorp-

Orated City of Okoboji, Iowa V. Lorna

App. 10

;

Williams, Equity No. 18193, slip op at p.5

(Dickinson County, Iowa District Court,

December 22, 1989).

Ms. Williams cites Hawaii Housing Auth-

ority V. Midkiff, 467 US 229 (1984) to supp-

ort her argument that this court need not

abstain. In Midkiff, the Supreme Court

held that the federal district court need

not have abstained from exercising its

jurisdiction to decide the constitutionality

of a land condemnation scheme. The court

Said:

Under Younger abstention doctrine,

interests of comity and federalism counsel

federal courts to abstain from jurisdiction

whenever federal claims have been or could

be presented in ongoing state judicial

proceedings that concern important state

interests. See Middlesex Ethics Committee

V. Garden State Bar Assn., 457 US, 423,432-

437 (1982). Younger abstention is required,

however, only when state court proceedings

are initiated 'before any proceedings of

substance on the merits have taken place

in the federal court.' Hicks V. Miranda,

422 U.S. 332, 349 (1975).

Midkiff, 467 US at 237-38. Because state

judicial proceedings had not been initiated

at the time Midkiff filed suit in federal

court, Younger abstention was not required.

App. 1l

Id. at 239. The Midkiff case is disting-

uilshable from this case: the City of

Okoboji initiated its state court injunctive

action before Ms. Williams filed this suit.

Under the circumstances here, Younger

; , : a wa ; .

abstention 1S required.” Midkiff 467 US at

238,

Accordingly, IT IS ORDERED:

1. The defendants' motion for summary

judgment is granted on Younger abstention

grounds. This case is dismissed without

pre judice.

Zz In light of the court's decision to

abstain, Ms. Williams' amended motion to

Stay the state court proceedings is denied.

April 9, 1991

Donald E. O'Brien, Chief Judge

U.S. District Court

“Ms. Williams also cites Kennedy Vv. :

LeFebvre, 847 F2d 482 (8th Cir. 1988), and

Runge V. Dove, 857 F2d 469 (8th Cir. 1988)

in support of her resistance to the defend-

ants' motion for summary judgment. Both

cases address the availability of qualified

immunity for government officials. But

because this court has determined that

abstention is required, it cannot reach the

qualified immunity issue. Similarly, the

court need not reach the remainder of the

defendants' arguments for summary judgment.

App. 12

Filed May 21,1991

JINITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

LORNA L. WILLIAMS, )

Plaintiff CIVIL NO. 89-4058

ORDER

THE INCORPORATED CITY

OF OKOBOJI, IOWA, et al,

Defendants )

Plaintiff Williams has filed a motion

asking this court to amend its order of April

9, 1991, which granted the defendants' motion

for summary judgment on Younger abstention

grounds. The defendants resist the motion;

Ms. Williams has replied to the resistance.

After considering all the arguments, the court

is persuaded that, for the reasons stated in

the defendants' resistance, Ms. Williams'

motion for amendment should be denied.

IT IS SO ORDERED.

May 21, 1991 /s/

Donald E. O'Brien, Chief

Judge, U.S. District Court

Copies of Order

mailed regular on May 21, 1991 to:

Lorna Williams, 529-46th St., Des Moines,TIa.

Henry Haugan, 509 Fifth St.,, W.D.M.,Ia.

James Clarity, P. O. Box E, Spirit Lake, IA.

App. 13

Appendix

Page 9 --Plaintiff's Pro se Complaint

filed June 16, 1989, No. C-89-4058

Joint Appendix U.S. Court of Appeals

CA 3), No. Yl=- 2590, Pe 1/4

é LE SOl ie

WHEREFORE, LAL. [ RAYS 3

| laintiff seeks an immediate

Staying the proceedings captioned THI!

INCORPORATED CITY O OKOBOJI, IOWA lain-

eS to Ss. LORNA L. WILLIAMS, efendant,

}

nending in the Iowa District Court for

Dickinson County, Iowa, Equity No. 18,193,

Lis Pendens No. __, until this action can

be heard and determination made by this

Federal Court;

2. That an affidavit 1s filed in sup-

port of said Application for Stay Order:

(That if such Stay is ordered, Plaintiff

will be able to attempt to mitigate damages).

Money damages for the wrongful

taking of Plaintiff's property under the

Temporary Injunction Order and the threat

of and filing of the Petition for Injunct-

ion.

t )

xpenses

ects |

linea

> reda

from

. lL»

seek

: Declaratory

the

and

oceedinas

in the

release

dock

property

ng to

judqmen

State

Defendants

the

privile

+ + }

enforce the

that the

Court were n

ordered to d

LiS Pendens

Beant hg.

IRDT)

he Def

the

9 Punitive damages agalnst a

Defendants, jointly and severally in

sum of One Hundred Fifty Thousand

LO. That such further or alterna

equitable relief as to the Court seems

and equitable.

Plaintiff further prays that Judgm

for compensatory damages, the costs

action and punitive damages be entered

aijaainst the Defendants jointly and severally

4, S/

Lorna L. Williams, Plaintif!

529 46th Street

Des Moines, IA. 5(

App. 16

312

(Page 10-Plaintiff's Amendment to Complaint

filed sept. , 1989, C89-4058, Joint Appendix

U.S. Ct. Appeal Case No. 91-2396, (CA8)p.90

Li. That Befendants be restrained and

enjoined from in the future interfering with

Plaintiff's personal and property rights

under the Federal Constitution.

AMENDMENT TO RELIEF SOUGHT

WHEREFORE, Plaintiff repreats and incorpor-

ates herein paragraphs 1 through 9 in the

Division "Relief Sought" in her Complaint:

1. - Plaintiff further prays that she be

awarded compensatory damages under DIVISION

VY for her financial loss, expenses in conn-

ection with actions in both the State Court

and in this court, including reasonable

attorney fees for her attorney;

2. Plaintiff further prays for money

damages for her past, present and future

physical pain and suffering, past, present

and future mental anguish and emotional

distress under DIVISION V of her Amendment

to the Complaint;

3. Plaintiff prays for punitive damages

—

to be assessed against Defendants individ-

ually and in their official capacities fo)

the many egregious and aggravated circum-

stances in connection with deprivations of

the constitutional rights of this Plaintif?t

as alleged in Division V of the Amendment

to Complaint;

4. Plaintiff further prays for a

declaratory judgment that the definitions

of "Residential Purposes" in both Ordinance

63 (1972) and Ordinance 99 (August 198

be declared unconstitutional, null and void

and that the Defendants be stayed from the

continuation of the injunction proceedings

in State Court styled as The Incorporated

City of Okoboji, Iowa Vs. Lorna L. Williams,

No. 18-193, Iowa District Court for Dickin-

son County and order the same dismissed at

the City of Okoboji costs.

5. That Defendants be restrained and

enjoined from interfering with Plaintiff's

constitutional rights, both personal and

property rights in the future.

App. 18

prays for

Judqmen

agalnst the

efendants, individually and in their official

Capacities, jointly and severally in the su

O One undred Fifty housand Dollars for

“oOmpensatory and punitive damac<

osts of this action including

or her attorneys.

| . £ f -+ 1 - ~ -~ £ -

laintit rurtner prays for

tive, further or other relief

seems ust in the premises.

res and f

attorney fees

sucn

alterna-

S to the Court

j Ss d 4

Henry J.

402 Maple

West Des

ATTORNEY

YRIGINAL FILED IN DUPLICATE

py Sept.__, 1989

James A. Clarity, Attorney

Defendants

rl H. Maahs, Attorney

in State Court

for

Haugan

Street

Moines,

ae. ce & wasn weke

FOR PLAINTIFF

(Williams)

App. 19

)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

LORNA L. WILLIAMS, ) CIVIL NO.89-4058

Plaintiff )

MOTION FOR AMEND-

V. ) MENT OF FINDINGS

AND ORDER FILED

THE INCORPORATED CITY \ April 9, 1991

OF OKOBOJI, IOWA, et al,’

Defendants )

COMES NOW the Plaintiff, pursuant to

FRCP 52(b) and states to the Court:

1. That the dismissal procedure of the

5th Circuit shown in the cited Hill V. City

of El Paso, Texas, followed by this Court,

was changed in Ballard V. Wilson, 856 Fed.

20a1568, 1571 (1988), the 5th Circuit saying

of Deakins V. Monaghan, 484 U.S. 193(1988):

"Just last term in Deakins V.

Monaghan, the Supreme Court held

that even when Younger abstention

is required, a federal court has no

discretion to dismiss cognizable

Claims for monetary relief which

cannot be redressed in a pending

state proceeding."

2. The United States Supreme Court in

Potomac Electric Power Co. V. Curran, (C.A.

App. 20

4th Cir.) granted certiorari, 484 U.S.1022

(1988), vacated the judgment and remanded the

case "for further consideration in the light

of Deakins V. Monaghan.

Thus, the Supreme Court has Said in Deakins

that Lorna Williams' claims in the within

cause, other than the state injunction action,

must be retained by this Court even in light

of this Court's abstention, and that this Court

has no discretion to dismiss all of Lorna

Williams' remaining federal claims. See also

England V. LouiSiana State Board of Medical

Examiners (1964), 375 U.S. 41i, 415.

WHEREFORE, Plaintiff moves the Court to

reconsider its Order of April 9, 1991, and

after reconsideration to retain jurisdiction

of the federal claims stated in Plaintiff's

Complaint as amended, pending the outcome

of the equity quaSi-criminal injunction in

State Court, and amend the order and judge-

ment acccordingly.

Respectfully submitted,

M\DNIA T tr 7 TY ATC

LORNA L. WILLIAMS

y /S/

Henry J. Haugan

402 Maple Street

7 - fs . A {

West es Oolnes, IA.)D

(515--2 ion /UI

A = ~ ey? 7 a

‘\ttorney for laintl

James A. Clarity

832 Lake St

Py. O«;f Box &

Spirit Lake, IA. 51360-0605

App. 22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

)

LORNA L. WILLIAMS, ) CIVIL NO. 89-4058

Plaintiff ) REPLY TO RESIST-

ANCE TO PLAINTIFF'S

v. ) MOTION FOR AMEND-

MENT OF FINDINGS,

THE INCORPORATED CITY ) ORDER AND JUDGMENT

OF OKOBOJI, IOWA, et al, FILED April 9,1991

Defendants )

COMES NOW Plaintiff and for REPLY to

Defendants' RESISTANCE STATED ABOVE, states:

i It iS not true that the State Court

in the pending equity injunction suit has

jurisdiction to assess and award damages to

Mrs. Williams for the wrongful injunction; no

counterclaim can be filed in state court

because there is no "final judgment"; and

only after a "final judgment" can an independ-

ent new action be brought in the Iowa State

Court. 42A C.J.S. Injunctions Sec.320(a);

29 I.R.C.P.; Grove V. Bush (1892) 86 Ta. 94,

53 N.W. 88; Jewell Tea Co. V. Stewart (1909)

142 Ia. 353; 120 N.W. 962.

App. 23

2. That in conjunction with other

stated Federal Claims for relief (Complaint

and Amendments), Mrs. Williams seeks redress

for Constitutional violations for a Temp-

orary Injunction obtained by Defendants

without notice and hearing on an Ordinance

they Knew was void, in keeping with their

pattern of wrongful interference with Mrs.

Williams' Federal Constitutional rights,

which wrongful conduct commenced in the

year 1976. Williams V. Town of Okoboji,

Ben Saunders, City Clerk, Leo Parks, Mayor,

606 F.2d 812 (1979).

3. That in addition to the Federal

Claim for monetary award, Mrs. Williams

seeks to have Defendants "restrained and

enjoined in the future from interfering

with Plaintiff's personal and property

rights under the Federal Constitution."

(Complaint and paragraph II, September

Amendment. )

4. That Mrs. Williams selected this

Federal forum for redress of her stated

App. 24

Federal claims in June, 1989, as permitted

under 42 U.S.C. Sec. 1983; England v.

LouiSiana State Board uf Medical, Examiners,

373 U.Ss. 4h1, 4315 (1964),

That the Order and Judgment of

April 9, 1991 should be reconsidered and

this Federal case held in abeyance pending

the final judgment in the State equity

injunction suit. Deakins V. Monahan, 484

-S. 193 (19686).

WHEREFORE, Plaintiff prays as in her

MOTION for Amendment of Findings, Order and

Judgment filed April 9, 1991 herein.

LORNA L. WILLIAMS, Plaintiff

By [s/

Henry J. Haugan

402 Maple Street

West Des Moines, Ia. 50265

Attorney for Plaintiff

COPY TOs:

James A. Clarity, Esq.

832 Lake Street

Spirit Lake, Iowa 51360

THE UNITED

FOR THE

LORNA L.

Appellant

COURT OF

‘ ) “ T rm

CIRCUI

WILLIAMS,

Motion

APPEALS

Lyn

to Recon-

V. Sider Denial of

| Petition For

THE INCORPORATED CITY Rehearing and

OF OKOBOJI, IOWA, et , Suggestion For

al, Hearing En Banc

)

Appellees

COMES NOW Appellant and moves the Court

to reconsider its denial of Petition for

Rehearing and Suggestion for En Banc Hear-

ing and moves

Appeal and the

the

case

in the District

Court to reinstate this

Court,

and as grounds therefore states:

Le That

1S a copy of

filed in the

1 9 9 2 ,

the

Towa Supreme

attached hereto as Exhibit

Court on

w A"

NOTICE OF APPEAL Appellant

May ie

giving Notice of the federal litiga-

tion and thus preserving her right to re-

turn to the federal court for determination

of her federal claims.

England V.

Louisiana

Board of Medical Examiners, 375 U.S.41l

(1964);

App.

2. That attached hereto, as Exhibits

"B" and "C", respectively, — Appellant's

MOTION in the Iowa Supreme Court for Cert-

ification of Iowa law to Federal Courts and

copy of QUESTIONS CERTIFIED;

3. That attached hereto as Exhibit "D"

is a copy of Appellant's APPLICATION FOR

STAY OF APPEAL pending determination of theo

Declaratory Judgment Action claim stated in

Appellant's COMPLAINT filed June 16, 1989

in the Federal District Court;

4. That the Iowa District Court has had

"reasonable opportunity", Spanning over two

years Since the filing of its Petition on

LY, f

May 24, 1989 and obtaining an ex parte

injunction, to determine the Iowa law to

see if the federal constitutional question

can be avoided, (being the purpose of

abstention) ;

5. That under the procedure in Chapter

684A, Iowa Code, the Iowa Supreme Court

Can construe a municipal ordinance in

accordance with the Iowa law to see if the

App. 27

constitutional question can be avoided.

Linn County V. City of Hiawatha, 311 N.W.2d

100, (1981);

6. That in view of these new State

procedural developments, based upon the

following case support, this court should

reinstate the case in the Federal Court and

order it held in abeyance pendirg the out-

come of the new State procedural develop-

ments.

Deakins V. Monaghan, 484 U.S.193(1988)

England V. LouiSiana St.Med.Bd.,375 U.S.

411, 416, 421-22 & Footnotes 12-13

P.421, 422; N.12 p.422 (1964)

American Trial Lawyers V. N.J.Supreme

Court, 409 U.S. 467, 469 (1973)

Lake Carriers' Assn. V.MacMullan, 406

U.S. 498, 512-513 (1972)

Zwickler V. Koota, 398 U.S. 241, 245-245

n.4 (1967)

Harrison V. N.A.A.C.P., 360 U.S. 16

(1959)

Spector Motor Ser. M. McLaughlin, 323

Vachs LOLs LOO

(The Supreme Court in note 12 p.421,

England, cites State case, Spector

Motor Service V. McLaughlin.

In the appeal in Spector Motor Service,

Supra, at p.9l, the State Court quoted the

United States Supreme Court 1945 decision:

"We therefore vacate the judgment of the

Circuit Court of Appeals and remand the

Cause to the District Court with

App. 28

directions to retain the bill pending

the determination of proceedings to be

brought with reasonable promptitude

in the state court in conformity with

this opinion"

Holding the same in Deakins, Supra, some

forty-three years later and in Lake Carriers

Supra, the United States Supreme Court Said:

"We do, however, vacate the judgment

below and remand the case to the District

Court with direction to retain juris-

diction pending institution by appell-

ants of appropriate proceedings in

Michigan courts. See Zwickler V. Koota,

289 U.S. at 244 n.4."

WHEREFORE, Appellant respectfully inoves

the Court to reconsider its ORDER denying

a Rehearing, and upon such reconsideration,

Supplement the Decision of the three- judge

panel filed on March 19, 1992 by reinstating

this appeal and reinstating the case No. 89-

4058 in the United States District Court,

Northern Division pending the outcome of the

decision of the Iowa Supreme Court on said

MOTION and APPLICATION which are set for

hearing on May 27, 1992.

a s/

Henry J. Haugan

509 Fifth Street

West Des Moines, IA. 50265

App. 29

Original mailed 5/19/92 to

Clerk of the United States Court

of Appeals for the Eighth Circuit

Copies delivered to the Iowa

Supreme Court on 5/19/92

Copies mailed to:

James A. Clarity

P. O. Box E

Spirit. Lake, IA. 51360

Attorney for Appellees

5/19/92

App.

NN Ee

(Exhibit A -Attached)

IN THE DISTRICT COURT FOR DICKINSON COUNTY

THE INCORPORATED CITY )

OF OKOBOJI, IOWA, , No. 18, 193

Plaintiff NOTICE OF APPEAL

LORNA L. WILLIAMS, )

Defendant )

TOs THE INCORPORATED CITY OF OKOBOJI, IOWA,

Plaintiff, MICHAEL J. CHOZEN, 832 Lake Street,

P. O. Box E, Spirit Lake, IA. 51360

CLERK OF THE ABOVE CAPTIONED DISTRICT COURT,

Spirit Lake, IA. 51360

NOTICE IS HEREBY GIVEN to each of the

above that Defendant Lorna L. Williams appeals

hereby to the Supreme Court of Iowa from the

final Judgment and Decree entered against her

in said cause on September 30, 1991, and the

ORDER Overruling and denying Defendant's

MOTION FOR ENLARGED OR AMENDED FINDINGS,

UNDER I.R.C.P. 179(b) on April 23, 1991 and

ORDERS on Amendments entered on April 23, 1992

and April 30, 1992, and appeals from all

other interlocutory rulings and orders inher-

ing in the final judgment.

NOTICE is also given that Defendant in

complying with the Iowa Statutes and

App. 31

Appellate Rules of Civil Procedure to

protect her interests under Iowa law, she

reserves the right to return to the Federal

Courts for a determination of her stated

federal claims, including declaratory judg-

ment of the Ordinance involved in this

matter in the pending causes in the United

States District Court for Iowa, Western

District, Western Division and U.S. Court of

Appeals for the Eighth Circuit in cause No.

91-2396 in the event of an adverse decision

in this appeal, which NOTICE is given to

protect her Federal constitutional rights

pursuant to England V. Louisiana State Bd.

of Medical Examiners, 375 U.S. 4ll, (1964).

s/ Lorna L. Williams

Defendant

Original filed 5/11/92 Office of Clerk

Copy delivered 5/11/92 to

Michael J. Chozen, Attorney for Plaintiff

832 Lake Street, P. O. Box E

Spirit Lake, IA. 51360

EXHIBIT A ~—

App. 32

T LI it = At t 1 ¢ hed }

E ITOWA SUPREME COURT

EF INCORPORATE] AE lig typ

' OKOBOJI, IOWA, Appeal No.92-752

Appellee MOTION FOR CERTIF-

ICATION O [OWA LAW

1) IE FEDERA]

COT ) <

)

e) a ”S A ar

LO 1. Le. WILLIA ’

COMES NOW Lorna L. Williams, Appellant,

pursuant to Chapter 684A, 1991 Code of Iowa

and in keeping with the procedure followed by

this Court in Linn County V. City of Hiawatha,

311 N.W.2d 95, 100 (1981) states:

Le That there are pending in the Fed-

eral Courts the following cases, to wit:

Lorna L. Williams V. The Incorporated

‘lity of Okoboji, Iowa, et al,

[In the United States Court of Appeals

for the Eighth Circuit, No. 91-2396.

é. Lorna L. Williams V. The Incorpor-

porated City of Okoboji, Iowa, et al,

In the United States District Court

Northern District of Iowa, Western Division,

Case No. 89-4058 (on appeal to the Eighth

Circuit, Case No. 91-2396)

3. Lorna L. Williams Vv. The Incorp-

Orated City of Okoboji, Iowa, et al.

App. 33

(Exhibit B-Attached)

In the United States District Court

Northern District of Iowa, Western Divisj

Case No. 91-4091 (Declaratory Judament in

context of owner occupancy

Ps Mat the attempted amendatory

Ordinance Oo. YY !} the Appellee Lave

attached hereto, is involved in ll three

of the above captioned cases.

mM} 4 ; - ‘- \+vr VW ‘> vy

- inat in @278) LGOUNntY Va. AC2tV OF

Hiawatha, 311 N.W.2d 95, 100 (1981) this

[Iowa Supreme Court certified to the Federa

Court the Iowa law on strict construction

of city ordinances in favor of property

Owners, and the application of this rule t

this Court or the federal courts would

dispose of this appeal and Appellant is

requesting Chapter 684A Iowa Statute proc-

edure be utilized here; See also Jersild

Sarcone, 149 NW2d 179,185 (1967); Living-

69)

bho

ey)

‘

(Ia.19/76); Arkae Develop., Inc. V. Zoning

Bd. City of Ames, 337 NW. 2d, 884, 886 ( ie

App. Ct. 1983); Helmke V. Bd. of Adj. City

.. Nat there LS pending in the United

tates LSstrict ‘Ourt for the Northern

l\Strict, Western l1Vv1is1on a second PETITIO?

L} ‘ase No. C91-4091 filed Ma 3 1991 fo)

nas not iS yet been set for ty? lal but which

would dispose of this State iSe appeal j

the Appellee's ordinance is held unconstitut-

1onal. (EX.E, cover page);

WHEREFORE, Appellant PrayS that this Court,

iS a matter of comity, judicial economy and

ustice hold this appeal in abeyance “pending

letermination by the Federal Courts in said

tters pending before them, and for such

ilternative relief as to the Court seems just

] the premises.

Py,

Lorna L. Williams, Appellant

929-46th Street, Des Moines,

IA. 50312

(515) 277-0012

& €

EXHIBIT B

rrr t 7 YAMT

V Gl i ey LO

c A ' y r A

| a I Bi LOWA )

} cc e«

7—wW €

L’ t

POLK CO

T . T te . : eS } 3]

[, Lorna L. Williams, being first dul'

- - } . ) 7

SwOrrh On Oatn State that i Nave read the

t - ° ATI DT , ,aArHS a, ; ™ °rr A tS

rOregoing APPLICATION FOR STAY and know the

contents thereof and that the Statement

therein contained are true as ] verily

believe.

Subscribed and sworn to before me the

undersigned Notary Public this 13 lay

Macr OQ

May, l j IZ.

Notary Public

ORIGINAL FILED 5/13/92

Copy mailed 5/13/92 to

Michael J. Chozen, Attorney

for Appellee

l2e

(Exhibit C-Attached)

IN THE IOWA SUPREME COURT

THE INCORPORATED CITY )

OF OKOBOJI, IOWA, , No. 92-752

Appellee ) Questions of Law

. Certified Pursuant

V. ~ to Chapter 684A, Code

, Of Iowa and Attached

LORNA L. WILLIAMS, Motion for Certifica-

) tion Filed Herein

Appellant ) 5/13/92

COMES NOW Appellant, Lorna L. Williams,

pursuant to Sec. 684A.2 and 684.8, the Code,

being a party to this Court action and in the

actions in the Federal courts stated in the

attached MOTION which is made a part hereof

and states: (Exhibit A).

1. That she attaches Appellee City's 1972

Ordinance No. 63 and its attempted amendatory

Ordinance No. 99 defining "Residential Purposes"

which are made a part lige (Exhibits B & C)

2. That for consideration of the federal

abstension application and for consideration

of construction of Said Ordinanceson Iowa law

instead of reaching the Constitutional quest-

ion, the following QUESTIONS are certified:

QUESTION I

Whether a legal action was commenced under

App. 37

I.R.C.P. 48 on the day the Appellee City

deposited a PETITION FOR INJUNCTION with

the Clerk of Court when the PETITION, as

grounds cites and quotes from attempted

amendment Ordinance 99 which had never been

enacted by the City Council with the pre-

scribed Notice of hearing published in

accordance with Sec. 414.4, the Code.

QUESTION II

Whether, under Iowa law, a legal action was

commenced under I.R.C.P. 48 on the day

Appellee City deposited a PETITION FOR

INJUNCTION with the Clerk of Court when it

did not allege as grounds the original 19/7

Ordinance 63 but alleged it had been amended

and quoted from the attempted amendatory

Ordinance 99?

QUESTION III

Whether, under the Iowa law on "free use of

property not clearly prohibited by Ordinance"

can Appellant rent her dwelling for one or

two weeks as her choice because these ord-

inances do not clearly prohibit such?

)

QUESTION IV

Whether, under Iowa law, Appellee City, can

under said ordinances, deprive Appellant

of her right to choose the persons who may

reside in her private dwelling and not be

limited to "the same person or same group of

“>

persons" who are there “one month or more":

QUESTION V

Whether, under Iowa law, Appellant owner of

her private dwelling can select the period of

time for persons to reside in her home and

not be required to have them there "one

month or more"? -

WHEREFORE, Appellant prays that the

Court give statements of law to the questions

certified above as prayed in her MOTION

App. 38

herein,

‘Opy malled 5/14/92 to

n, Attorney

fachael J. Choze

for Appellee

O. Box E, Spirit Lake, IA. 51360

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

LORNA L. WILLIAMS, ° C 89-4058

Plaintiff

ia AFFIDAVIT

THE INCORPORATED

CITY OF OKOBOJI,IQWA

Ot Of.< ;

Defendants

STATE OF IOWA, COUNTY OF DICKINSON,SS:

I, Earl M. Maahs, being first duly sworn,

do upon oath depose and state:

That on May 19, 1989, I had an office con-

ference with Lorna Williams with regard to the

City of Okoboji advising her that she was in

violation of the zoning ordinance because she was

renting part of her property for less than one

month at a time;

That Lorna Williams provided me with the

minutes of August 9, 1988, relating to the adop-

tion of Ordinance No. 99 amending the zoning

ordinance of the City of Okoboji which reflected

that there was no public hearing prior to adopt-

ion;

That on May 19, 1989, I had a phone con-

ference with Attorney Michael Chozen and advised

App. 40

him that after reviewing the minutes of the City

Council of August 9, 1988, and reviewing the

City Code of Iowa, it was necessary to publish

notice and hold a public hearing to amend the

zoning ordinance and that according to the

minutes, this procedure was not followed and,

thus, the ordinance was invalid.

s/ Earl M. Maahs

Earl M. Maans

Subscribed and sworn to before me this day ~

of March, 1991.

s/Sally C. Deloss

Notary public in and

for the State of lowa

(Seal)

APP .4]

IN THE SUPREME COURT OF IOWA

No. 92-752

Dickinson County No. 18193

ORDER FILED

INCORPORATED CITY OF Jul 09 92

OKOBOJI, IOWA, Clerk S.C.

Plaintiff-Appellee

VS.

LORNA L. WILLIAMS,

Defendant-Appellant

This matter comes before the court on the

defendant's motion for certification of Iowa law

and application for stay. The plaintiff has fil-

ed resistance to both requests and the defendant

has filed responses to the resistances. We have

considered all supporting documents.

After consideration by this Court, the Defen-

dant's motion for certification and application

for stay are hereby overruled and denied.

Dated this 9th day of June, 1992.

s/ Linda K. Neuman

Justice,supreme Court of

Iowa

Copies to:

Michael J. Chozen

832 Lake Street; P.0.Box E

Spirit Lake, Iowa 51360

Lorna L. Williams

529 46th Street

Des Moines, Iowa 50312

App.42

UNIFORM CERTIFICATION OF QUESTIONS OF LAW ACT

1967 ACT

Table of Jurisdictions Wherein Act Has

Been Adopted

Alabama, Alaska, Arizona, Colorado, Conn-

ecticut, District of Columbia, Florida,

Georgia, Indiana, Iowa, Kansas, Kentucky,

Louisiana, Maine, Maryland, Massachusetts,

Minnesota, Mississippi, New Hampshire, New

Mexico, North Dakota, Ohio, Oklahoma,

Oregon, Puerto Rico, Rhode Island, South

Dakota, Washington, West Virginia, Wisconsin,

and Wyoming.

Page 20 pocket parts 1992, Volume 12

West Publishing Co.'s UNIFORM LAWS

ANNOTATED.

“CODE OF IOWA - 1991

“CHAPTER 684A

QUESTIONS OF LAW IN SUPREME COURT CERTIFIED

684.1 Power to answer

684.2 Method invoking

684.3 Preparation of certification order.

684.4 Preparation of certification order.

684.5 Costs of certification. =

684.6 Procedure

684.7 Opinion

684.8 Power to certify

684.9 Procedure on certifying

684.10 Construction

684.11 Title.

ci App.43

684A.1 Power to answer.

The Supreme Court may answer questions of law

certified to it by the suvreme court of the

United States, a court of appeals of the

United States, a United States District Court

Or the highest appellate court or the inter-

mediate appellate court of another State,

when requested by the certifying court, if

there are involved ina proceeding before it

questions of law of this state which may be

determinative of the cause then pending in the

certifying court and as to which it appears

to the certifying court there is no controll-

ing precedent in the decisions of the appell-

ate courts of this state. —

684A.2 Method of invoking.

This chapter may be invoked by an order of a

court referred to in section 684A.1 upon the

court's own motion or upon the motion of a

Party to the cause.

App.44

6844.8 Power to certify.

The Supreme Court of Appeals, on its own

motion of the motion of a party, may order

certification of questions of law to the

highest court of another state’ when it appears

to the certifying court that there are

involved in a proceeding before the court

questions of law of the receiving state

which may be determinative of the cause

then pending in the certifying court and it

appears to the certifying court that there

are no controlling precedents in the

decisions of the highest court or intermed-

late appellate courts of the receiving state.

684A.11 Title. _

This chapter may be cited as the "Uniform

Certification of Questions of Law Act."

“(Federal Court is included: Linn County Vs.

City of Hiawatha, 311NW2ad 97, 100 (Iowa,

1981))

App.45

IOWA CODE (1989 and 1991)

414.4 ZONING REGULATIONS, DISTRICT BOUNDARIES,

AMENDMENTS.

The council of the city shall provide for

the manner in which the regulations and restric-

tions and the boundaries of the district shal]

be determined, established, and enforced, and

from time to time amended, supplemented or ch-

anged. However, the regulation, restriction,

Or boundary shall not become effective unti}]

after a public hearing at which parties in in-

terest and citizens shall have an opportunity

to be heard. The notice of the time and place

of the hearing shali be published as provided

in section 362.3 except that at least seven

days notice must be given and in no case shal}

the public hearing be held earlier than the

next regularly scheduled city council meeting

following the published notice.

414.5 Changes - protest

'...The provisions of section 414.4 relative

to public hearings and official notice apply

equally to all changes or amendments.

App. 46

CODE OF IOWA (1989 and 1991)

Sec. 414.20 Actions to correct violations

In case any building is erected...or land

is used in violation of this chapter or of any

ordinance or other regulation made under authority

conferred thereby, the council may...institute

any appropriate action or proceeding to prevent

...such use..(underscoring supplied.)

App. 47

U.S.CODE

42 USC, Sec. 1983 -Civil action for deprivation

£f Rights

Every person who, under color of any

Statute, ordinance, regulation, custom, or

usage, of any State or Territory of the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United States

Or other person within the jurisdiction there-

of to the deprivation of any rights, privileges,

Or immunities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law, suit in equity, or other

proper proceeding for redress. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall

be considered to be a statute of the District

of Columbia.

42 USC 1985 - Conspiracy to interfere with

Civil Rights

In any case of conspiracy set forth in

this section, if one or more persons engaged

therein do, or cause to be done, any act in

furtherance of the object of such conspiracy,

whereby another is injured in his person or

App.48

property, or deprived of having and exercis-

ing any right or privilege of a citizen of

the United States, the party so injured or

deprived may have an action for the recovery

£ damages occasioned by such injury or depr-

ivation, against any one cr more of the

conspirators.

42 U.S.C. 1986. Action for neglect to prevent

Every person who, having knowledge that

any of the wrongs conspired to be done, and

menticned in section 1985 of this title, are

about to be committed, and having power to

prevent or aid in preventing the commission

of the same, neglects or refuses so to do,if

such wrongful act to be committed, shall be

liable to the party injured or his legal

representatives, for all damages caused by

such wrongful act, which such person by

reasonable diligence could have prevented;

and such damages may be recovered in an |

action on the ouses and any number of persons

guilty of such wrongful neglect or refusal

may be joined as defendants in the action.

App.49

46 U.ss.C.

28 U.S.C. 1343. Civil rights and elective

franchise

The district courts shall have original

jurisdiction of any civil action authorized

by law to be commenced by any person:

(1) To recover damages for injury to his

person or property, or because of the depriv-

ation of any right or privilege of a citizen

of the United States, by any act done in

furtherance of any conspiracy mentioned in

section 1985 of Title 42;

(2) To recover damages from any person

who fails to prevent or to aid in preventing

any wrongs mentioned in section 1985 of Title

42 which he had Knowledge were about to occur

and power to prevent;

(3) To redress the deprivation, under

color of any State law, statute, ordinance,

regulation, custom ocr usage, of any right,

privilege or immunity secured by the Constit-

ution of the United States or by any Act of

Congress providing for equal rights of

citizens or of all persons within the juris-

App.50

diction of the United States;

(4) To recover damages or to secure

equitable or other relief under any Act of

Congress providing for the protection of

Civil rights, includi. , the right to vote.

28 U.S.C. 2201. Creation of remedy

In a case of actual controversy within

its jurisdiction, except with respect to

Federal taxes other than actions brought

under section 7428 of the Internal Revenue

Code of 1954 or a proceeding under section

5905 or 1146 of title 11, any court of the

United States, upon the filing of an approp-

pices pleading, may declare the rights and

other legal relations of any interested’

party seeking such declaration, whether or

not further relief is or could be sought.

Any such declaration shall have the force

and effect of a final judgment or decree

and shall be reviewable as such.

28 U.S.C. 2202. Further relief

Further necessary or proper relief based

on a declaratory judgment or decree may be

App.51

iii See ea

granted, after reasonable notice and hearing,

against any adverse party whose rights have :»

been determined by such judgment.

28 U.S.C. 2283. Stay''of State court proceedings

A COURT OF THE-United States may not

grant an injunction to stay proceedings in a

, State court except as expressly authorized by

Act of Congress, or where necessary in aid of

its jurisdiction, or to protect or effectuate

its judgments.

—— CONSTITUTION OF THE UNITED STATES

; AMENDMENT 1.

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assem-

ble, and to petition the Government for a redress of

grievances.

AMENDMENT 9.

The enumeration in the Constitution, of cert:

_ rights, shall not be construed to deny or dispar::

others retained bv the people.

AMENDMENT 14.

Secnion 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No state shall make or

enforce any law which shal] abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisidiction the equa! protection of

the laws.

—_—_——

APP .52

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.