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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 869

## Text

Supreme Court, U.S,

‘a
wy
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

I
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).

Il
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)

IV
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).

V
DOES THE “BAD FAITH" OR "HARASSMENT"

ii
EXCEPTIONS TO YOUNGER ABSTENTION APPLY
BECAUSE RESPONDENT CITY OFFICIALS KNEW THAT

THE ATTEMPTED AMENDATORY ORDINANCE QUOTED IN
THE STATE COURT PETITION WAS VOID.

VI
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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iv
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

V
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.

2
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 « 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

7?

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

bd

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

5

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
I
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.
II
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

I.

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).

a!
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

12

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

>

is

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)

iT

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.

14

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;

We
ide such a
independence of the
insisting on prompt
encourage its use.

ad

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
we

15

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}.

IV

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

16

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.

17

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].

18
VI

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

19

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.

20

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

21

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.

———

22
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

©

De
ne

NO
LJ

the merits. Petitioner also

other or alternative equitable
the Court seems just.
spectfully submitted,

Dev ge—
Haugan

torney for Petitioner

24
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)

Or

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

25
(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
. 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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App. 4

Order E}

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orpora

Ojiile G

pe llee;

reda

from

. lL»
seek

: Declaratory

the

and

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oceedinas

44

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in the

release

dock

property

ng to

judqmen
State

Defendants

the

privile

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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 vy
- inat in @278) LGOUNntY Va. AC2tV OF

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

y

[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)
ct
O
a
wy

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1051%3A1. Public record. Not legal advice.