Petition for Writ of Certiorari — Ehrlander v. Department of Transportation of Alaska
Supreme Court brief1997
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: Supreme Cour, U.S,
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96 188 2 way 27 9h
OFFICE OF THE CLERK
IN THE UNITED STATES SUPREME COURT
October term 1997
Lars W. Ehrlander,
Petitioner
The State of Alaska. DOT, et al
Respondents
On Petition For Wat of Certoran
to the United States Court of Appeals
for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
LARS W. EHRLANDER, Pro Se
161 Palace Circle
Fairbanks, Alaska 99701
Telephone: (907) 451-8342
QUESTIONS PRESENTED FOR REVIEW
Whether dismissing bifurcated and post trial issues on res
judiuata and the Eleventh Amendment, absent
compensation, is permissible, when the State and its
4
officers engaged in fraud, and when due process was
denied and abused in the state courts.
LIST OF PARTIES |
Mr. Lars W. Ehrlander, pro se petitioner.
v.
The State of Alaska, Department of Transportation,
and Messers John Athens; Raymond Funk; John Miller, Donald Baum,
in their personal and official capacities, and the Federal Highway
Admunistration.
TABLE OF CONTENTS
PAGE
COUIRIINE . cnseereccnesvnssiesonsennscenstnsggiilivaniiian siiibialiaaibimmneaiaehiaiaiiciai I
Re OE TIA, scccsesisissinnsistiaitineeecekicaeriiadnicemeaiene aieaaaaitataman ada II
TAREE GIS Shiites II
TE CA TE oseccctnceivissinsnintcainaiaiiiaiaiananns Il]
Citations of Orders and Opinions. ...........c..cecseccsssasecsecseseees 1
Statement of the bases for US Supreme Court Junsdicton 1
Date of judgment
Date of reheanng
Statutory provision to confer junsdiction to this Court to
review
Constitutional provisions, statutes and regulations ............ 2
Seaton OE Gai WI, sscicsstssesieniascenanaediiaiamaaaiiaimaaneamai miei 3
PG SIU, scccenicicscssosnsscesaiisesscieiaiiaindabainaihaldnctncaidamnias 3
Basis for federal jurisdiction in the court of first instance 7
DEERE oereeverencrcrssnniesscenaseatiiisticinininiailalianiiaiainiiaiiiiaatiatitiin 7
Reasons for grantng a Wnt of Certioran ..........0ccssecssesees 7
SUNUAIIIOI xascnsanssissivinicidsieisiiiiaieteiaibaiaandeiiainiaialiaaaiiaamieatmibaindnaeat 7
The Bifurcation Agreement ............cssscsssssssssseeeees 10
Res padicate / Dune Pencess q.........c.c.ccccseccnsenseseseees 12
The Fifth Amendment .............:cccccseececeeseeseeenesseees 15
The Seventh Amendment .............:sccccssscseesseesseeees 15
Tine Heagietis ame cenncsecesnccccescsnsinersnetceens 16
The Eleventh Amendment ...........:scccscscssesseseeeeees 16
The Thirteenth Amendment ...............:cccceeeeeeeeeees 16
The Fourteenth Amendment ...............csccsseeeeeeeees 17
Dine Seats SIND eccciccscennnienitinnssncinensionti 18
1. The baghnest amid best Use ..2....escnecccccescsesesesse 18
7 18 |
3. Fair market value on date of taking ............... 19 ;
I
4. Neither AS 34.60.120(3) nor 49 CFR
Sec. 24.103(b) are wnitten clearly .............:000000 19
Be MIE ceiccnttecnnciescnstnsnesseercesvmnevsnsnesanenanenseeneee 20
The Alaska Supreme Crt. taking on roll of fact finder 21
PIII seiteststestinenievsssstoosonsonsensosonoemnnsonncoesonssensuoseaeee 21
GEE PENINIIIIDD cevccnccccnccccesessastonnsnatensecnovesscosenee 22
I II sc enrnsensninsebonennndipminiceie 24
III eltecratisdinepettncscentesetessenstcnivcnasescncseesnsotsncqtanssonmesecenecene 25
RII SRIIIIIIE sccepsncnonnsciacconccssinnnoncnsanstosmesonnssscososoeianeet A.1
TABLE OF CITED AUTHORITIES.
CASES
Bell v. Burson
LT 14, 17, 21
Board of Regents v. Roth
FT 17, 18, 22
Burlington Northern v. Nebraska Public Power Dist.
931 F Supp 1470 (D.Neb. 1996) ou... eeescesecesceeseeeseesees 16
Carter v. Carter Coal Co.
aida ksacdaevurasivaisouievienevowsctoeveevinns 10, 24
City of Los Angeles v. Decker
eae) sg ) re 24
Defeo v. Sill
$10 F.Supp 648 (ED PA 1993) . ...............c-c-csrcsesosseserees 10, 24
State of Alaska v. 6.313 Acres, more or less and Lars W. Ehrlander
(Case 4FA-86-886) (First trial) 220.0... eeeceeeeeeeeeenenees 16
Ehrlander v. State DOT (Case 4FA-86-2287CI
TI WIE OUND occ cnsccnacsrsncescencscvesecasesesssesesesncaes 16
First Ev. Chur. Glendale v. LA
csc scvecnivanrvnnswansanshenicceensosoren 24
First Lutheran Church v. Los Angeles
mets 41986 .................................. 11, 14, 15, 19, 21
|
F. Giannini v. First National Bank of De Plains
483 NE 2d 924 (IIL App. 1985) o.cceecccssscsssssssesnseeees 20
Hafer v. Melo
EL, | a nae 22
Howard v. Grinage
82 F.3d 1343 (6th Cir. 1996) cecccssccsesssscsessesssnsseseeennees 24
Hughes v. Washington
Ee ED pisisniisscicertavecicansctimsentsencpsenptnioniens 22
Irwin v. City of New York
902 F.Supp. 442 (SD.N.Y¥. 1995) occcccssssssssssssessense 22, 24
JB v. Washington County
SOS FBamm. 907 (1). CWiamla 1995) ann ccssisscnccosncsssncovssovessvecs 21
Ketron v. Chattanooga - Hamilton County Hospital
919 F Supp 280 (B.D. Tem. 1996) ...........0.0.cececsserscccsseseee 22
Kirby Forest Industries, Inc. vy US
ek ae 11, 15, 19
Lake Havasu Com. Hosp v. Ariz Title Ins.
GT PE ST CAR, BP TBE) ances tisensscssesccsenesnoesnensisess 20
Lange v. State of Washington
RF I eiieitaceenicnsdioeiciapastinicacteanncicainse 18, 19
Logan v. Zimmerman Bruch Co
M55 US 422 (19GL) cancencccenennssseneescesennne 12, 13, 14, 16, 27
Marden v. Intern. Ass’n of Machinist ETC
DOOR TEE —— eiissnitntincerieeercinmniinses 20
Middlesex County Ethics Comm. v.Garden State Bar Ass’n
ae 8 = --——C—(C(Cé#Nbtsicnhnceacas cin in scincaspuigdtaa 10
Parratt v. Taylor
451 US 524 (1981) .......... 9, 10, 11, 12, 15, 16, 18, 21, 23, 24
Pedring v. Chun
906 F Supp 1377 (D. Hawaii 1995) o..cccccccsccsssssssseenees 18, 20
IV
Pruneyard Shopping Center v. Robins
ET TI FP I | nxcncssivisescsesicnsnesasssnsnorvennstiverienecetrareeetiin 9, 22
Roberts v. NY
TO TE TO RII oes sss cscnsensnsnnincsereivennaneonvaneeiiinn 17, 21, 22
Ruckelshaus v. Monsanto Co.
GET UG DOG (UGG) on nceesicncssvecssecesvenrscotonenconsioesvencencononnsen 15, 24
Sanfilippo v. County of Santa Cruz
415 F Supp 1340 (N.D.Cal. 1976) 2........sseeseeeeeeseeseeeeee 22
Sheerbonnet, Ltd. v. American Express Bank, Ltd.
905 F.Supp. 127 (S.D.N.Y. 1995) ......seesecssesseeseesteenessees 21
State v. Glen
GO2 P.2d. 253 (OR. 1979) .......n.cnscvssessesnresssosessescnssosancansescs 23
State v. Lewis
LS Le ee 23
State v. Terrace Land Co., INC.
298 So2d B59 (Loui. 1974) ........c.ccscsccssessssnscssssesessensoneneees 19
State v. Waggoner
319 S..W.2d 930 (Miia. 1959) ..........nsceccscsceseccnsecseseseorononsens 24
Stevens v. McHan
SF3d 1204 (Sth Cir. 1993) ........-ccsccssscssvscessncensssssnsonscessoorees 22
US v. Gaudin
See aM NET 16
US v. Twin City Power Co.
DD TT BC oisisciccsstnssssssssciersseconnssnninsessnsnesnin 11, 15, 19
US v. Virginia E&P Co.
365 US 624 (Sup. Ct. 1961) .......... tons 11, 15, 19, 20
Valdez v. City of New London
903 F.Supp. 286 (D.Comn. 1995) eesscscssessssssssesseeenseee 22
Wilson v. Jones
902 F Supp 673 (B.D.Va 1995) ........sscssessscessessessnsessensenes 16
V
CITATIONS OF ORDERS AND OPINIONS
06-26-96 Judge Singleton (fed. distr. crt.) Order dismissing all issues.
07-19-96 Judge Singleton Order upholding dismissal on reconsid.
03-24-97 Appellate Court upheld dismissal.
05-05-97 Appellate Court demed reheanng and heanng en banc.
JURISDICTIONAL BASES FOR THIS COURT
1. The District Court dismissed all issues on June 26, 1996, and denied
reconsideration on July 19, 1996.
2. The Ninth Circuit Court of Appeals upheld the dismissal on March
24, 1997, and demed rehearing on May 5, 1997.
3. This Court has junsdiction to review the judgment by the Alaska
Supreme Court and the Ninth Circuit Courts of Appeals under USC.,
28 Sec. 1254, 1257.
"
:
4
.
CONSTITUTIONAL PROVS.- STATUTES - REGULATIONS
US Constitution Alaska Constitution Art. 1. Sec. 1.
Artcle 3 Sec. 2 Inherent nghts.
Article 4 Sec. 1, 2 A.C. Sec. 6, petition.
Artcle 6. A.C. Sec. 7, due process.
Amdmt. 5, eminent domain. AC. Sec. 14, seizures.
Amdnmt. 7, tnal by jury. A.C. Sec. 16, tual by jury.
Amdnmt. 8, excessive fines. A.C. Sec. 18, emiment domain.
Amdnmt. 13, involuntary servitude.
Amdmt 14, due process of law.
AS 34.55.046 USC 28 Sec. 1358
AS 09.10.070
AS34.60.040(1)(2)(3c,a) USC 28 Sec. 1367
AS 09.25.010
AS 34.60.070 USC 42 sec. 1983
AS 09.25.020 (1)(4)
AS 34.60.090 (4) USC 42 Sec. 1985 (2)
AS 09.45.630
AS 34.60.120 (3)(9) USC 42 Sec. 1986
AS 09.55.310 (1)(2)
AS 34.60.130. 49 CER Sec. 24.101
AS 09.55.320 (@)() a
AS 34.60.150 49 CER Sec. 24.102
AS 09.55.330
AS 44.88.38 49 CER Sec. 24.103
AS 09.55.370 0
USCS 23 Sec. 127 (b) 49 CER Sec. 24.103
AS 09.55.430 (3) ath, iad ©)
USC 28 Sec. 1331, 49 CFR Sec. 24.304
AS 09.55.460 (b) 0 vps
USC 28 Sec. 1343(a) 49 CFR Sec. 24.306
AS 24.40.010
USC 28 Sec.1346(a2)(b)Rule 72, (5)E
USC 28 Sec. 1347. Canon 2, 3.
AS 34.55.004 (1)(2)(3) S ates
USC 28 Sec. 1355
2
STATEMENT OF THE CASE
FACTUAL STATEMENT.
Because of a third party’s involvement, the parties stipulated to
only determine the impaired value of the raw land in the first tnal, and
the issues of decreases attributed to the highway project and business
damages were bifurcated to a second tnal [A.14, Bifurcation Agreement
(court order) A.29, State appraiser lists bifurcated issnes|. The first tial was
held, and the impaired value was established [A.16, Bench ruling in 886
case]. After having benefited from partally implementing the
Bifurcation Agreement [A.14] by keeping valuable property nghts from
the first trial, the State of Alaska and its officers decided to breach and
default on our agreement (bilateral contract) to hold a second tnal on
the issues of decreases and damages. The Alaska Supreme Court has
ruled that it was then too late to appeal the first tual, where the issues
normally would have been heard, thus allowingthe State to take several
valuable vested property rights, which were protected by the federal
Constitution, absent compensation and due process [A.31, affidavit state
appraise.
The Alaska Supreme Court took on the role of the jury, sua
sponte, by establishing the facts of the case, but without the benefit of
knowing the real facts. Other courts have now relied on those illusory
facts. The High Court also took on the role of legislating by simply
ignoring applicable state and federal condemnation laws. The High
3
Court ruled that we had our day m court in the first tnal, and it simply
ignored the Bifurcation Agreement on the second tnal) The Court
remanded the case back to the lower court to reestablish whether there
had been an mverse taking, essentially based on the same business
interference scenano that had previously been established by the lower
court. The lower court (new judge) again found that there was an early
taking, this tme m 1984. However, compensation was lmited to
interest on the value of raw land in 1986 when the property was severely
impaired by the mumpact of the highway project, and no compensation
for fixed improvements was considered [A.17, State admission in 886 case}.
Even though both state and federal laws prohibit the state from
benefiting from pre condemnation impairments, and even though the
property had never been appraised at its highest and best use [A17,
Bench ruleng 886 case| and all the fixed improvements had been excluded
from the first tual based on the Bifurcation Agreement, the state courts
demied our several requests to litigate those issues m the current cases
[A.17, AK Supreme Crt denies motion to litigate the sulyect issues in the 2287
sister case).
I was forced to mitiate federal htgation, as the state courts
refused access to litigate the bifurcated property nghts [A.17]. In the
process of conducting my research, I leamed that I had to exhaust state
remedies on all issues pnor to federal tigation. The state courts had
never ruled on the bifurcated issues; they simply ignored the Bifurcation
4
Agreement. Moreover, there were additional post trial taking issues’
and civil rights violation issues” that had never been ruled on by any
court. The federal issues had been formally preserved from previous
litigation without objection from the state [A-30}.
Ironically and erroneously, Judge Savell dismissed all taking
issues on res judicata, and he dismissed the civil nghts violations on
immunity and time bar, even though these violations were performed by
state officers under the color of state law and equitable estoppel should
have applied, as we were continuously pursuing altemative remedies.
I initiated federal litigation. The state courts had refused access
to litigate the bifurcated or post tnal issues [A.17], and they abused
process by permitting the State and its officers to fraudulently bifurcate
valuable federal property nights from the first tual, apparently with the
intention of breaching our contract when it was too late for me to raise
the issues in the first trial. Judge Singleton dismissed all issues based on
res judicata and the Eleventh Amendment. The Singleton court held that
a federal court has no authority to review a state court even when it is
wrong [A.3, A.6]. His ruling was upheld by the Ninth Circuit [A.9,
A 13}.
, The State failed to build an access road, six years later, which it bad
committed to build in the taking documents, leaving lots land locked.
: Besides the fraudulent Bifurcation Agreement, the State and its offwers
enforced an illegal department policy of taking expensive land for as little as possible,
by fraudulent means, including ignoring and violating state and jederal condemnation
statutes, constitutional provisions and regulations [A. 19-28].
5
I contend is that a federal court does have the authonty to
review the process. This is different from reviewing a decision on its
ment. If federal due process and civil nghts laws shall have any
meaming, the federal courts must review whether a litigant was accorded
due process in the state courts.
The Ninth Circuit misread the facts. It listed all the sister cases
as evidence that we had our day in court. The crucial fact is that the
current issues were either preserved, bifurcated, or are post tual issues.
Our statement that we “raised” all issues m the state courts did not
mean that the issues were heard on them ments. The only way they
were “raised” were in our motions for leave to litigate the issues in the
sister cases. These motions were denied. The 870 Savell case was
imtiated to exhausted state remedies. In that case Judge Savell
dismissed all issues on res judicata, mmmunity or tme bar without even
permitting discovery. Judge Savell had several conflicts of mterest in
that case, one conflict was that he was a likely witness, another was that
the wife of the accused officer worked under Judge Savell. Dismissing
formally preserved issues [A.30], bifurcated [A.14], and post tral issues
on res judicata does not reach the federal standard for due process. The
Savell Court simply ignored the Bifurcation Agreement. The fallacy in
Judge Savells dismissal is further illustrated by Judge Stemkruger’s
9-28-96 order [A.18] from the 886 sister case where she held “Civil
rights, extortion claims must be litigated in a separate action.”
Judge Stemkruger was the judge in the sister cases.
THE BASIS FOR FEDERAL JURISDICTION IN THE
COURT OF FIRST INSTANCE
The Federal District Court has jurisdiction pursuant to 28
USC. Sec. 1343. The Ninth Circuit has jurisdiction pursuant to 28
U.S.C. Sec. 1291.
ARGUMENT
Reasons for granting a Wat of Certomn.
A United States court of appeals has entered a decision m
conflict with the decision of another United States court of appeals on
the same important matter, has decided an important federal question in
a way that conflicts with a decision by a state court of last resort, or has
so far departed from the accepted and usual course of judicial
proceedings, or sanctioned such a departure by a lower court, as to call
for an exercise of this Court’s supervisory power.
STATEMENT
States must abide by the Fifth and the Fourteenth
Amendments. Without federal recourse, the Amendments would have
no meaning. The Fourteenth Amendment reads:
All persons bom or naturahzed in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States wherein they reside. No State shall
make or enforce any law which shall abndge the
7
puvileges or mmmunities of citizens of the United
states; nor shall amy State deprive any person of life, liberty,
or property, without due process of law, nor deny to any person
within its purisdiction the equal protection of the laws.
The Eleventh Amendment hmits persons from one state from suing
another state. Some courts, m their “legislative” capacity, also have
decided to limit citizens from maintaiming a suit agamst their own states.
The Fourteenth Amendment, however, was instituted after the Eleventh
Amendment in order to balance the lmitatons on individuals with
justice and faimess in the form of hmits on states. The mtent is clear,
one may not maintain a suit against a non consenting state as long as
that state is providing reasonable due process. This is a case where
the State has failed to provide due process. This is a case where
there was no post taking process available. This is a case where the state
has abused due process. This is a case where the state has agreed to
htigate the federal issues in the federal court. This is a case where the
Fourteenth Amendment would have no meaning if it were not enforced
by a federal court. The federal provisions under the Fourteenth
Amendment set a minimum standard, and as long as the State stays
within that standard, no federal suit can be maintained against a state.
However, a state is hable for failing to mamtam that standard. Further,
the Eleventh Amendment immunity does not extend to officials in
their personal capacity. The Fourteenth Amendment was enacted to
provide a civilized forum to settle disputes.
A state is bound by the just compensation clause
of the Fifth Amendment. Pruneyard Shopping Center
v. Robins 447 US 74 (1980)
Our reasoning in Lloyd, however, does not ex proprio
vigore limit the authority of the State to exercise its
police power or its sovereign nght to adopt in its own
Constitution individual liberties more expansive than
those conferred by the Federal Constitution. Pruneyard
Shopping Center v. Robins 447 US 74 (1980)
[t]he determimation whether a state law unlawfully
infringes a landowner’ property in violation of the
Taking Clause requires an examination of whether the
restriction on private property “forc[es] some people
alone to bear public burdens which, m all faimess
and justice, should be bome by the public as a whole.
This examination entails inquiry mto such factors as
the character of the government action, its economic
impact, and its imterference with reasonable
investment-backed expectations. Pruneyard Shopping
Center v. Robins 447 US 74 (1980)
The national govemment of the United States, while
coexisting with the 50 states which make it up, is
supreme over them to the extent of its authonity under
Article VI of the Federal Constitution. Paratt v.
Taylor 451 US 524 (1981)
Insofar as 42 USCS Sec. 1983 affords a civil remedy for
deprivations of federally protected nghts by persons
acting under color of state law without any express
requirement of a particular state of mind, the mitial
inquiry in any Sec. 1983 action must focus on whether
two essential elements to a Sec. 1983 action are
present, that is, whether the conduct complained of
was committed by a person acting under color of state
law, and whether this conduct deprived the person of
rights, privileges, or immunities secured by the
Constitution or laws of the United States. Parratt v.
Taylor 451 US 524 (1981)
Nothing in the Fourteenth Amendment protects
against all deprivations of life, or property by the state,
but only against depravations without due process of
law; . . .Parratt v. Taylor 451 US 524 (1981)
[On] motion for a new tnal, the court shall give
judgment after an examination of the entire record,
without regard to techmical errors, defects, or
exemptions which do not affect the substantial nghts
of the parties, does not change the well-settled mule that
an erroneous rulmg which relates to the substantial
nghts of a party is ground for reversal unless it
affirmatively appears from the whole record that it was
not prejudicial. Carter v Carter Coal Co. 298 US 342
(1935)
{e}stablished state procedure as lacking 1 in due process
and a property damage clan amnsing out of the
misconduct of state officers, the state action not
necessanly being complete im the latter situation.
Parratt v. Taylor 451 US 524 (1981)
The Bifurcation Agreement
This case 1s not about dissatisfaction with previous compensation as the
Ninth Circuit stated. This case is about state officers’, under the color
of state law, fraudulently entenng mto an agreement to bifurcate
property nghts to a second tnal and then breaching that agreement
when it was too late to appeal the first of the two bifurcated tals. It is
about the State of Alaska’s taking $350,000 worth of fixed
improvements without providing any process or compensation.
The state proceedings did not afford an adequate opportunity to raise
the federal claums. Defeo v. Sill 810 F.Supp. 648 (B.D. Pa. 1993).
“Federal courts may decline to abstain upon a showing
of “bad faith, harassment, or some other extraordinary
circumstance that would make abstention
mappropnate.” Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S.435
10
= i
All these factors exist in our case, and in addition, the state did not
adhere to basic condemnation law. “Just Compensation” was based on
a value two years after the property was actually taken, when it was
severely impaired from the highway project, and did not include
consideration for the fixed mmprovements.
It is settled that the “just compensation” required by
the Fifth Amendment to be paid for the taking of
private property for public use is the value at the very
time of the taking to the person from whom taken.
United States v. Virginia E. & P. Co. 365 US 624
(1961), First Lutheran Church v Los Angeles County
482 US 304 (1987), Kirby Forest Industnes, Inc. v
United States, 467 US 1 (1984)
The United States no more than a state, can be excused
from paying just compensation measured by the value
of the property at the time of the taking merely
because it could destroy that value by appropmate
legislation or regulation. United States v. Twin City
Power Co. 350 US 222 (1955)
The State ended up taking $2 million worth of fixed
improvements and other post tnal property nghts absent any hearing on
the ments of our clams.
The fundamental requirement of due process is the
opportunity to be heard and this opportunity must be
granted at a meaningful time and in a meaningful
manner, some kind of hearing is required at some time
before a state may finally deprive a person of his
property interests, and merely because a state may be
excluded from providing a meaningful heanng before
deprivation of property because it is not impracticable,
but impossible, to do so does not mean that the state
can take property without providing a meaningful
post-deprivation hearing. Parzatt v. Taylor 451 US
524 (1981)
11
“Many controversies have raged about the cryptic and
abstract words of the Due Process Clause but there can
be no doubt that at a minimum they require that
depnvation of life, liberty or property by adjudication
be preceded by notice and opportunity for heanng
appropnate to the nature of the case.” At the outset,
then, we are faced with what has become a familiar
two-part inquiry: we must determine whether Logan
was deprived of a protected mterest, and, if so, what
process was his due. Logan v. Zimmerman Brush Co
455 US 422 (1982)
Res judicata/Due Process
The state courts should not have dismissed our claims without a hearing
on the ments of the claims. I can accept any decision that comes from a
jury, but find being denied access to the courts extremely frustrating.
There is no way that issues that were not even known dunng previous
litigation could be subject to 7es judicata. | also find it frustrating that our
state is practicing land fraud and is getting away with it.
[w]here a plamtffs claim had been dismissed for
failure to comply with a tnal court’s order — the Court
read the “property” component of the Fifth
Amendments Due Process Clause to mnpose
“constitutional imitations upon the power of courts,
even in aid of their own valid processes, to dismiss an
action without affording a party the opportunity for a
hearing on the ments of his cause.” Parratt v. Taylor
451 US 524 (1981)
Similarly, the Fourteenth Amendments Due Process
Clause has been mterpreted as preventing the States
from denying potental litigants use of established
adjudicatory procedures, when such [455 US 430] an
action would be “the equaling of denying them an
opportunity to be heard upon their claimed nght{s]} 401
US 371 Logan v. Zimmemman Brush Co 455 US 422
(1982)
12
Each of our due process cases has recognized, either
explicitly or implicitly, that because “minimum
[procedural] requirements [are] a matter of federal
law, they are not diminished by the fact that the State
may have specified its own procedures that it may
deem adequate for determining the preconditions to
adverse official action.” Logan v. Zimmenmnan Brush
Co 455 US 422 (1982)
[D]ue process clause grants the apprieved party the
opportunity to present his case and have its merits
fairly judged. Logan v. Zimmerman Brush Co 455 US
422 (1982)
If the State is permitted to ignore laws and take what it wants without
paying for it, how can people be expected to have respect for the laws.
[t]he state may not finally destroy a property interest
without first giving the putative owner an opportunity
to present his claim of enttlement. Logan _v.
Zimmerman Brush Co 455 US 422 (1982)
“[a]bsent a countervailing state mterest of overnding
significance, persons forced to settle their claims of
right and duty through the judicial process must be
given a meaningful opportunity to be heard. 401 US
377. Logan v. Zimmennan Brush Co 455 US 422
(1982)
Guarding the federal highway trust fund is not good enough reason for
the state not to pay for what it takes. Clearly the federal courts cannot
deny access to due process when the state is refusing or abusing process
and is ignoring and misreading federal law.
[w]e agree that a due process right of access to the
courts exists when fundamental mterests are present
and the State has exclusive control over “the
adjustment of [the] legal relationship(s} involved.
Logan v. Zimmerman Brush Co 455 US 422 (1982)
fijts guarantee “to all individuals [of] a meaningful
opportunity to be heard. 401 US 379 Logan _v.
Zimmerman Brush Co 455 US 422 (1982)
13
[t]he State may not depnve someone of that access
unless the balance of state and private mnterests favors
the govemment scheme. Logan v. Zimmennan Brush
Co 455 US 422 (1982)
The heanng required by the due process clause of the
Fourteenth Amendment must be meaningful and
appropnate. ... [p]rocedures adequate to determme a
welfare clam may not suffice to try a felony charge.
[w]e look to substance, not to bare form, to determine
whether constitutional mimumums have been honored.”
Bell v Burson 402 US 535 (1971)
The State and its officers should not have fraudulently
stpulated to bifurcate valuable property nghts to a second tral and then
breached that partially mmplemented agreement when it was too late to
appeal the first tnal.
It is a proposition which hardly seems to need
explicaton that a hearing which excludes
consideration of an element essential to the
decision . . . does not meet this standard Bell v
Burson 402 US 535 (1971)
The Fifth Amendment’s just compensation provision is
designed to bar government from forcing some people
alone to bear public burdens which, in all faimess and
justice, should be bome by the public as a whole. First
Lutheran Church v Los Angeles County 482 US 304
(1987)
[mjany of the provisions of the Constitution are
designed to limit the flexibility and freedom of
govemment authonties, and the Just Compensation
Clause of the Fifth Amendment is one of them. First
Lutheran Church v Los Angeles County 482 US 304
(1987)
The Fifth Amendment provides for due process ard just
compensation. The standards set by this Court have been ignored by
the state courts, and the federal courts have dismissed all issues based
14
on the erroneous state rulings. Taking property nghts absent a heanng
on the issues and not paying for fixed improvements does not reach the
federal standard. The State can adopt its own Constitution and statutes,
but they may not fall below the federal standards. Ferst Lutheran
Church v. Los Angeles County 482 US 304 (1987), Unsted States v.
Virginia E.c7P. Co. 365 US 624 (1961), Kerby Forest Industries, Inc. v.
United States 467 US 1 (1984), Unsted States v Twin City Power Co.
350 US 222 (1955), Parratt v. Taylor 451 US 524 (1981), Ruckelshous
v. Monsanto Co. 467 US 986 (1984). No court has ruled on whether
the Eleventh Amendment gives a state the night to abuse fedenally
protected property nghts. The catch 22 situation that exists im this case,
where one must first raise the claims in the state courts, and the federal
courts’ refusing access to federal litigation based on es judicata and the
Eleventh Amendment, regardless of what process was provided in the
state courts clearly violates our federal Constitution.
The Seventh Amendment provides for a jury’s deciding
factual issues. The Alaska Supreme Court did not have the night to deny
a jury trial on factual issues. The High Court had no authonty to act as
a jury and make factual findings that have all shown to be erroneous
once the record was established. We are still handicapped by all other
courts’ having adopted the erroneous facts. Burisngton Northern o
Nebraska Public Power Dist. 931 F Supp 1470 (D.Neb. 1996), Unsted
15
ee ee rer
States v Gaudin 132 L Ed 2d 444 (1995). For opposing view, Welson v.
Jones 902 F Supp 673 (E.D.Va 1995).
The Eighth Amendment provides for no excessive fines or
cruel and unusual punishment. Taking vested property nghts absent
just compensation, destroying our business, singling out our family to
pay a disproportionate share ($2 million) of a public project, and taking
our property for less than our cost -- less than we owed the bank --
making us subject to a judicial foreclosure, all because we did not appeal
the 886 case, even though the relevant issues had been preserved in a
Bifurcation Order for litigation in a future tmal, is an excessive fine and
cruel and unusual punishment. The federal issues were also formally
preserved [A.30] for federal htgation in the previously litigated cases
[4FA-86-2287, 886], without State objection. (no rulings on the issue)
The Eleventh Amendment. The Fourteenth Amendment,
was adopted after the Eleventh Amendment and was specifically
intended to provide a balance of nghts for mdividuals agamst the
Eleventh Amendment. The federal court should have reviewed
whether at least minimum federal due process standards were adhered
to_befoxe dismissing all issues. It should also mquire into whether
federal law was properly applied.
The Thirteenth Amendment provides for no mvoluntary
servitude. We have never intentionally waived our nghts to just
16
compensation. Being singled out to pay a disproportionate share of a
public project violates this Amendment. (No rulings on the issue)
The Fourteenth Amendment provides for due process of law
when taking private property and for equal protection of the laws. The
Fourteenth Amendment makes it clear that the State must provide due
process in conjunction with taking private property. It also makes it
clear that it is a federal mandate not subject to sovereign immunity, or
the Fourteenth Amendment would have no meaning. The Alaska
Supreme Court’s taking on the role of fact finder and denying a hearing
on the post trial and bifurcated issues [A.29], violated this Amendment.
Singling out our family to pay more than our fair share of the highway
project violates this Amendment. Parraét p. Taylor 451 US 524 (1981),
Logan v. Zimmerman Brush Co 455 US 422 (1982), Bell ». Burson 402
US 535 (1971), Roberts ». New Yorke 295 US 264 (1934), Board of
Regents ». Roth 408 US 564 (1972).
The constitutional requirement of an opportunity for
some form of hearing before depnvation of an interest
encompassed by the Fourteenth Amendment's
protection of liberty and property does not depend
upon any narrow balancing process. Roberts v New
York 295 US 264 (1934)
Yet, while the Court has eschewed ngid or formalistic
limitations on the protection of procedural due
process, it has at the same time observed certain
boundaries. For the words “liberty” and “property”
in the Due Process Clause of the Fourteenth
Amendment must be given some meaning. Board
of Regents v Roth 408 US 564 (1972)
17
[S]tipulated dismissal of judgment will generally not
support claim of issue preclusion, because issues would
not have been actually litigated and decided. Pednng v
Chun 906 F.Supp. 1377 (D. Hawan 1995)
{e}stablished state procedure as lacking in due process
and a property damage clam ansing out of the
misconduct of state officers, the state action not
necessarily bemg complete in the latter situation.
Parratt v. Taylor 451 US 524 (1981)
The State’s and its officers’ ignoring laws
The Alaska Supreme Court must adhere to state and federal
laws. In our case all condemnation laws were ignored [A.19-28]:
1. The biphest and best use. The Alaska Supreme Court’s demial of
compensation based on the highest and best use for which the property
was suitable on the date of taking, contradicts the law of the land.
Judge Blair and Judge Stemkruger both found the highest and best use
to be as subdivided lots [A.17]. Yet, we were only compensated for a
single tract of unimproved raw land [A.17]. Carl R. Lange vo. State of
Washsngton 547 P2d 282 (Wash. 1976).
2. Development profd. The Stemkruger Court demied “develop-
ment profit” based on the erroneous belief that it was not available in
Alaska. The only issue should be the fair market value on the date of
taking. If our business created that value or if it denved from some
other factor should be irrelevant. The State should not have deducted
for an umaginary developer and for items completed and paid m full.
State v. Terrace Land Co. Ime. 298 So2d 859 (Loui. 1974), US ».
Verginsa E ¢ P. Co. 365 US 624 (1961).
3. Faw market value on date of taking. The Alaska Supreme
Court's denial of compensation for the fair market value on the date the
property was actually taken, before it became impaired by the pendency
of the highway project, violates AS 34.60.120(3) and 49 CER Sec.
24.103(b). It ignores those issues’ having been preserved for future
htigation in a partially implemented Bifurcation Agreement [A.14]. This
is contrary to the law of the land. Further, the Alaska Supreme Court
adopted the Lange taking scenario from the Washington Court, but it
ignored the most important aspect, that of moving back the date of
value to a time before the Property became impaired by the highway
project. This concept is echoed by a multitude of Courts. Carl R.
Lange v. State of Wash. 547 P2d 282 (Wash 1976), Ferst Lutheran
Church v. Los Angeles County 482 US 304 (1987), Unsted States v.
Twin City Power Co. 350 US 222 (1955).
Just compensation, as required by the Fifth
Amendment, means the value of what is taken at the
very time it is taken and to the person from whom
taken. Kerby Forest Industries, Inc. v. United States,
467 US 1 (1984).
4. Neither AS 34.60.120 (3) [p.217] or 49 CFR Sec 24.103
(6) {p.220] are written clearty.
Accordingly, the impact of that event upon the
likelihood of actual exercise of the easement cannot be
considered. As one writer has pointed out, “[i]t would
19
be manifestly unjust to permit a public authonty to
depreciate property values by a threat .. [of the
construction of a goverment project] and then to take
advantage of this depression m the price which it must
pay for the property” when eventually condemned.
Unsted States o Vergimia E. & P. Co. 365 US 624
(1961).
The framers mtended for decreases to be excluded, not disregarded, as
held by the Alaska Supreme Court.
5. Damages The Alaska Supreme Court ened im denying
compensation for damages to our business that was located on the
premises and to our investment backed housing project. The addition
of the word “damaged” to our Constitution [p.212] made compensation
for damages a federal vested property nght. Nor should our business or
our investment backed project have been taken absent just compensa-
tion. The stipulated agreement estops the State from now opposing
damages and decreases. F.Gsannsns v. Ferst Natsonal Bank of De
Plasns 483 NE 2d 924 (Ill. App. 1985).
Pretnal stipulation has the effect of amending the
complaint. Lake Havasu Com. Hosp v. Arsz Title Ins
687 P2d 371 (Ariz App 1984).
Stpulaton does not evaporate with new counsel.
Stpulaton will stand; when one reaped the benefits
one cannot deny stipulation. Marden vo. Intern. Ass'n
of Machsnsst ETC. 576 F2d 576 (1978).
[O]}ral contract with respect to mterest m land may
become enforceable, in spite of statute of frauds, where
there has been part performance. Pedring v. Chun 906
F.Supp. 1377 (D.Hawan 1995).
The “just compensation” provision m the Fifth
Amendment is designed to bar govemment from
forcing some people alone to bear a public burdens
which, in all faimess and justice, should be bome by
the public as a whole. First Lutheran Church v. Los
Angeles County 482 US 304 (1987).
The Alaska Supreme Court's taking on the roll of fact finder
The Alaska Supreme Court’s taking on the role of fact finder
prevented our having an opportunity to explain evidence and develop a
full factual record. The limited format of an appeal does not provide
that process.
Right to j
We have the nght to have a jury decide whether property nghts
were taken absent just compensation and whether the State and its
officers violated our civil rights and whether there were business
damages or decreases caused by the highway project. Parratt v. Taylor
451 US 524 (1981). The Due Process Clause guarantee “to all
individuals [of] a meaningful Opportunity to be heard. 401 US 379
Logan v. Zimmerman Brush Co 455 US 422 (1982), JB ». Washington
County 905 F Supp 907 (D.Utah 1995), Sheerbonnet, Ltd. v. American
Express Banke LTD 905 F Supp 127 (S.D.N-Y. 1995).
The hearing required by the due process clause of the
Fourteenth Amendment must be meaningful and
appropnate.... Itis a proposition which hardly seems
to need explication that a hearing which excludes
consideration of an element essential to the decision . .
. does not meet this standard Bel] p. Burson 402 US
535 (1971).
The constitutional requirement (of a heanng before
deprivation of a property nght) does not depend upon
any narrow balancing process. Roberts ». New York
21
295 US 264 (1934), Board of Regents v. Roth 408 US
564 (1972).
Civil Rights Violations
Permitting the State’s entenmg mto a Bifurcation Agreement to
remove vested property nghts from the first tnal for future htgation
and then to breach this bilateral contract after partial implementation is
contrary to the law of the land. The State’s and its officers’ habitually
misrepresenting to the courts what property nghts were taken, enforcing
an illegal department policy to take property for as little as possible,
regardless of applicable laws, also violates federal law. CKetron ov.
Chattanooga - Hamilton County Hosp. 919 F Supp 280 (E.D.Tenn.
1996), Hafer v. Melo 502 US 21 (1991), Stevens v. McHan 3 F3d 1204
(8th Cir. 1993), Valdez v Csty of New London 903 F Supp 286
(D.Conn. 1995), Pruneyard Shoppeng Center v. Robins 447 US 74
(1980), Roberts v. Cety of Forest Acres 902 F Supp 662 (D.S.C. 1995),
Sanfilippo v. County of Santa Cruz 415 F.Supp 1340 (N.D.Cal. 1976).
.. . whether breach affects interest sufficiently grave to
tngper due process scrutiny, court must look to effect
of breach on claimant and determine whether effect is
so dramatic and nghts implicated so fundamental that
Constitution provides remedy. Inven v. Coty of New
York 902 F Supp 442 (S.D.N.Y. 1995).
Taking — Result. It does not matter how it was done,
technical label, it is the result that matters. Hughes ov.
Washsengton 389 US 290, 298 (1967)
Insofar as 42 USCS Sec. 1983 affords a civil remedy for
depnvations of federally protected nghts by persons
acting under color of state law without any express
requirement of a particular state of mind, the mital
22
inquiry in any Sec. 1983 action must focus on whether
two essential elements to a Sec. 1983 action are
present, that is, whether the conduct complained of
was committed by a person acting under color of state
law, and whether this conduct deprived the person of
nghts, privileges, or immunities secured by the
Constitution or laws of the United States. Parratt v.
Taylor 451 US 524 (1981).
The Alaska Supreme Court’s denial of compensation for the
$350,000 worth of fixed improvements that our business (Unique
Builders) had completed in the take area and the enhanced value
attributed to those improvements, as well as from the property’s having
been subdivided city lots, is unprecedented, contrary to the law and to
every other state or circuit court’s ruling. Moreover, it is contrary to the
rulings of this Court. Further, the State’s failure to build the frontage
road to which it committed in the taking documents, leaving some lots
landlocked after the taking, was an additional compensable taking of
property nghts. State ». Glen 602, P2d 253 (Or. 1979), State v. Lewis
785 P2d 24 (AK 1990).
While there is no set formula for determining when justice and
fairness require that economic injuries caused by a public action must be
deemed a compensable taking, and the inquiry into whether a taking has
occurred is essentially an ad hoc, factual inquiry, several factors should
be taken into account when determining whether a governmental action
has gone beyond regulation and effects a taking, among which are the
character of the govemmental action, its economic impact, and its
23
interference with reasonable imvestment-backed expectations.
Ruckelshaus v. Monsanto Co. 467 US 986 (1984), Howard o. Grenage
82 F3d 1343 (6th Cir. 1996), State v. Waggoner 319 S.W.2d 930 (Mis.
1959), Cety of Los Angeles v. Decker 558 P2d 545 (Cal. 1977).
Constitutional Violations
Singling out our family to subsidize this highway project with
our working capital and savings by paying less than our cost for the
property and less than what we owed to the bank, making our family
subject to a judicial foreclosure, making us substantially poorer, violated _
the Alaska Constitution that provides for damage compensation. A
Constitutional violation is self-execuung. [W]here a plamuffs claum had
been dismissed for failure to comply with a tal court's order -- the
Court read the “property” component of the Fifth Amendment’s Due
Process Clause to umpose “constitutional imitations upon the power of
courts, even in aid of their own valid processes, to dismiss an action
without affording a party the opportunity for a hearing on the ments of
his cause.” Parratt v. Taylor 451 US 524 (1981), Carter ». Carter Coal
Co. 298 US 342 (1935), First Ev. Chur. Glendale v. LA 482 US 304
(1987), Defeo v. Sill 810 F Supp 648 (ED. PA. 1993), Inwin v. City of |
New York 922 F Supp 442 (S.D.N.Y. 1955).
DATED this 15th day of May, 1997 at Fairbanks, Alaska.
By: pm Ay thane’
Lars W. Ehrlander, prv se WA,
24 .
APPENDICES
DIRECTORY OF APPENDICES
Opinions, Orders, Findings of Facts and Conclusion of Law:
6-26-96 Case F-021 - Judge Singleton - ORDER
Dorsemissing 08 federal s00t00s. «.n.n.......020s0.sscecssescssesesessessens A.3
7-15-96 Case F-021 - Judge Singleton - ORDER
Pile emntaceah Gor GUUNCNIIN <n senscscscsnsssnssecassisncnsonsnens A.6
3-24-97 Ninth Circuit upheld dismissal ...............:.cccseseseeseseeeeee A.9
5-05-97 Ninth Circuit demied rehearing ...........::cccsecscseseeseseseseens A.13
Opinions, Orders, Findings of Fact and Conclusion of Law in
Companion Cases:
11-20-87 Case 886 & 2287 - Judge Blair - ORDER
Fe I eriactnsiensetiisn erent encarcltbiersiccensinenns A.14
12-10-87 Case 886 - Judge B. at - BENCH RULINGS AT TRIAL A.15
Coit - FE TI PUI acesscsncinsesscnssecsncisssctiensonensseernentnonse A.16
Do not talk about ‘83 - ‘86 damages 1n first tal .............. A.16
If based on ‘83 subdivided value - no second trial, except
on carrying charges, impaired value ...........::s:csscseseeeeseeseees A.17
State’s appraisal assumes taking unimproved property ..... A.17
Highest and best use 1s as subdivided ...............::s:sessseeseseees A.17
4-30-96 Case 2287, 870 - ALASKA SUPREME COURT ORDER
DENYING MOTIONS:
1. To amend points on appeal
2. To merge 2287 & 870 and to stay
3. To waive final judgment in the 886 case
4. To enforce AS 34.60.120 (3)
5. For judgment on Kopping damages
6. For compensation for improvements
7. For highest and best use
8. To enforce the Bifurcation Agreement .................+. A.17
9-28-96 Judge Steinkruger case 886 - Litigate civil nghts claims
Sh UE I nis ssnsenssacnssnantesesessontennace A.18
CONSTITUTIONAL PROVISIONS
IIE: cient cnsincncvesccinrinsusimvasarersntaancicntsins A.19
a Pes IN sapiicccstorohcsiscsniccawesnioucntinpeccmiinnsielten sniiccodsen A.19
PI I aiasiich recs ccsiscentmsetss rn etccisanidaceamnmapniaks A.20
Pe I ih eiitredcinicintecastesshcenisensvechinanineaokandaulasonnaties A.24
Nene NOON: icsstssnscsieciasasnonensencencenrsotsasatseaheadbinsesbcins A.26
I ii tdaeteliscctoarigicrcehadeanleenis diighiicaieelsaasebicinkeandetonenankodiniavies A.28
EVIDENCE OF BIFURCATED ISSUES
State’s amended appraisal instructions .............:.00:0e0e0e A.29
A. 2
ina sie nee
Reserving federal issues ............0:.cccsssssssssesssssssesessssoeeossses.. A.30
Bifurcation Agreement ...........:..csesccsseescsssessssssse. ( A. 14)
EVIDENCE OF THE PROPERTY BEING IMPAIRED
Affidavit Glen Potts, State in-house appraiser ............ A.31
Potts’ 1984 valuation estimate .0.......cccccsssssssscssssseeesee A.33
Letter from City of Fairbanks regarding improvements A.34
yyeyeeessssscssensnesnsnssnsnnnnnnnnny
OPINIONS, ORDERS, FINDINGS OF FACTS AND
CONCLUSIONS OF LAW
MINUTES OF THE UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Lars Ehrlander v. State of Alaska
Case No. F96-0021 CV (JKS)
By: THE HONORABLE JAMES K. SINGLETON
Deputy Clerk: Patty Demeter, Case Management: 271-3235*
PROCEEDINGS: ORDER FROM CHAMBERS
Lars Ehrlander ("Ehrlander") sues the State of Alaska ("State")
and various of its agents and officers asserting claims under 42 U.S.C.
Sec. 1983. This court has jurisdiction. 28 U.S.C. § 1343.'
Defendants move to dismiss, asserting various grounds. Docket
Nos. 15, 23. The motion is opposed and Ehrlander requests oral
argument. Docket Nos. 22, 30. After reviewing the record, the Court
concludes that oral argument will not be helpful. D. Ak. LR .1@). All of
Ehrlander's claims against the State must be dismissed on the basis of
Eleventh Amendment immunity. We must then turn to Ehrlander's
Claims against certain state agents in their personal capacity. The
A. 3
gravamen of Ehrilander’s claim is that the State condemned his property
and did not pay him what it was worth. The State correctly poits out
that all of the issues in this case have been litigated in state court and
judgments entered. See Ehriander v. State of Alaska, 797 P.2d 629 (Alaska
1990); 4FA-95-870 Civil; 4FA-86-2287 Civil; and 4FA-86-886 Civil.
Those judgments are binding on both parties under the doctrines of res
judicata and collateral estoppel. See, ¢. g. , Eilrich v Remas, 839 F.2d 630
(9th Cir. 1988) (if issues have been litigated in state court or before state
administrative agency and state would give them preclusive effect, the
federal court must give state determinations preclusive effect). The State
concludes that Ehrlander is bound by the various actions in which he
has litigated these issues. Diedrich v. City of Ketchikan, 805 P.2d 362,
369-70 (Alska 1991). It is umportant to mention that the state court
decisions are binding on the parties, whether they are correct or not. If
Ehrlander received ineffective assistance of counsel, ze: , was the victum
of malpractice, his remedy is an action for malpractice in state court.
Absent diversity of citizenship, Ehrlander cannot sue his attorney im
federal court.”
' The State coftectly points out that the First Amendment bars any action at law or m
equity against the State, its agencies, and its officers in their official capacity. The State is
not a "person" for purposes of Sec. 1983. Thus all of these claims must be dismissed.
* Ehrlander essentially makes four claims. First, he was not paid what his property was
worth. The value of the property and the circumstances surrounding the acquisition
were thoroughly litigated in state court and the judgments in those cases are res judicata,
which means that, as to such issues, Ehrlander cannot lingate any issue that could have
been raised and considered. Res judicata is not limited to that were actually raised.
Second, Ehrlander argues a number of tort claims which cannot be brought in federal
court absent diversity of citizenship. Third, Ehrlander asks, in effect, for this Court to
'T IS THEREFORE ORDERED:
The motion for summary judgment at Docket No.15 is
GRANTED. The Clerk of Court is directed to enter judgment in favor
of the State and its officers and against Ehrlander dismissing his action
with prejudice. Each party shall bear its own costs. The motion to
reject service at Docket No. 13 is DENIED as MOOT since this entire
case 1s dismissed. The motion to set the record Straight at Docket No.
25 1s moot and is therefore DENIED. The motion for judgment on
lability at Docket No. 22 is moot and is therefore DENIED. * The
request for oral argument at Docket No. 30 is DENIED. The motion
to inform the court of new important discovery at Docket No. 31 is
DENIED.
Entered at the direction of the Honorable James K. Singleton,
United States District Court Judge.
DATE: June 26, 1996
review decisions of the state court and particularly Judge Savell’s failure to recuse.
Docket No: 31. This Court has no junsdicton to review decisions of state courts
applying state law. Finally, Ehelander claims he was dented due process the state and its
agents fooled the state court. Claums of this kind must be litigated in the court allegedly
fooled. Ehrlander's clams of fraud on the courts are sumply arguments that the courts
made the wrong decisions in his cases. Such claims cannot be litigated in federal court.
The decision in this case ss without prejudice to Ehrlander’s pending lingation in state
court.
MINUTES OF THE UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Lars Ehrlander v. State of Alaska
Case No. F96-0021 CV (JKS)
By: THE HONORABLE JAMES K. SINGLETON
Deputy Clerk: Patty Demeter, Case Management: 271-3235*
PROCEEDINGS: ORDER FROM CHAMBERS
On July 15, 1996, this Court issued an order denying Lars
Ehrlander's motion for reconsideration. Docket No. 36. The Court now
sets out an explanation regarding denial of the moton for
reconsideration.
Ehrlander sought reconsideration of this Court's order dismissing
this action with prejudice to further action in federal court pending final
decisions in the state court and with prejudice to further proceedings in
any court regarding issues that were litigated or could have been
A. 6
litigated in prior state proceedings. Docket No. 35. Ehrlander raised no
new issues. Takings claims are not mpe until they have been presented
to the state courts. Wiléamson County Regional Planning Comm'n v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985); Jones Intercable of San I Diego v. City
of Chula Vista, 80 F.3d 320, 323-24 (9th Cir.1996). Any claims that were
submutted to the state court or could have been submitted to the state
court are barred under the doctrine of res judicata. Palomar Mobilehome
Park Ass'n v. City of San Marcos, 989 F.2d 362 (9th Cir.1993). This Court
was of the view that all of Ehrlander's claims had either been presented
to the state courts and rejected on their merits or should have been
submutted and were therefore-within the doctrine of res judicata.
Alternatively, the claims are not mpe. Ehrlander has hardly shown that
the Alaska court's treatment of inverse condemnation claims renders
resort to state courts futile. See, e.g., Suttum v. Taboe Regional Planning
Agency, 80 F.3d 359 (9th Cir. 1996). Further, to the extent that
Ehrlander is making claims against the State or its officers in their
official capacity his claims are barred by the Eleventh Amendment.
Such claims could be pursued in the state court. Finally, Ehrlander
argues that he has claims against certain state officials in their personal
capacity that do not relate to the taking of his property in inverse
condemnation but relate to unfair mampulation of the state judicial
Proceedings. Such claims are also not mpe until they have been
A. 7
presented to the state courts and the state judgments have been set
aside. See, e.g., Heck v. Humpbrey, 114 S. Ct. 2364 (1994}. While Heck
deals with claims alleging actons whose unlawfulness would render a
conviction or sentence imvahd, there ts no reason not to apply its
rationale to claims alleging actions whose unlawfulness would render a
state civil yudgment mvalid. The Alaska Supreme Court 1s prepared to
set aside a yudgment which resulted from a fraud on the court. See, e. g.
, Higgins v. Municipality of Anchorage, 810 P.2d 149 (Alaska 1991); Aden ».
Bussell, 558 P.2d 496 (Alaska 1976).'
In rewewing the order at Docket No. 32, 1t became clear that a
typographical error occurred in n. | where the reference to the First
Amendment clearly should have been a reference to the Eleventh
Amendment. The First Amendment has absolutely nothing to do with
this case.
iT IS THEREFORE ORDERED:
Footmote 1 in Docket No. 32 1s amended to replace the reference to
the First Amendment with a reference to the Eleventh Amendment. In
all other respects, the motion for reconsideration at Docket No. 35 1s
DENIED.
Entered at the direction of the Honorable James K. Singleton, United
States Distnct Court Judge.
DATE: July 19, 1996
' Ehelander reties on Dodd pv. Hood River County, 59 F.3d 852 (9th Cir.1995). In Dodd the
parues specifically reserved certain issues to be decided in a federal court proceeding that
was pending at the same time. Here, while there may have been a bifurcation of issues as
Ehrlander contends, they were separated for later consideration in the State court, not
the federal court, and as Ehrlander concedes, subsequent judgments were entered. In
tact, the final judgment found that all of Englander's claims were barred by res pudicata
That decision is in itself res judicata in this Court even if erroneous, as Ehrlander
contends, because this Court must give the same prechisive effect to state court
judgments that the state court would, see 28 U.S.C. § 1738, and the state courts give
preclusive effect to decisions, even if erroneous, mchuding decisions resolving
constitutional claims. See, also, 28 U S. C § 1738; DeNardo v. Jobnstone, 772 F. Supp. 462
(D. Alaska 1991)
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Filed Mar. 27, 1997
LARS W. EHRLANDER, No. 96-35915
Plainuff-Appellant, D.C. No. CV-96-00021-JKS
v.
STATE OF ALASKA, DEPARTMENT OF
TRANSPORTATION; JOHN ATHENS:
RAYMOND FUNK; JOHN MILLER: DONALD
BAUM; FEDERAL HIGHWAY
ADMINISTRATION,
Defendants-Appellees .
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, District Judge, Presiding
A. 9
Submutted March 24, 1997**
Be fore: SNEED, FARRIS, and THOMAS, Caircust Judges.
Lars Ehrlander appeals pro se the distnct court’s grant of summary
judgment in favor of the defendants m his 42 U.S.C. 1983 action
alleging that the State of Alaska, the Alaska Department of
‘Transportation, two Department of Transportation employees, and two
Alaska assistant attorneys general parncrpated (foot notes)
* ‘This disposition 1s not appropnate for publication and may
not be cited to or by the courts of this circuit except as
provided by 9th Cir. R. 36-3.
** ‘The panel unanimously finds this case suitable for decision
without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
(end of foot note) m a scheme to take his property without just
compensation. We have junsdiction pursuant to 28 U.S.C. § 1291, and
affirm.
Ehrlander contends the distnct court erred by concluding that his
clams were barred by res judicataa We review the district court’s
apphcation of res judicata de novo. See Hiser v. Franklin, 94 F.3d
1287, 1290 (9th Cir. 1996), cert. denied, 65 U.S.L.W. 3596 (U.S. Mar. 3,
1997) (No. 96-895). Federal courts must give a state court judgment the
same preclusive effect that the yudgment would have im state court. See
Palomar Mobilehome Park Ass’n_ v. City of San Marcos, 989 F.2d 362,
A. 10
364 (9th Cir, 1993); aee also
Sansez v. City of Santa Ana, 936 F:2d
1027, 1035 (9th Cir. 1990) (federal courts look to law of the state for
applicability of res judicata Principles). In Alaska, res judicata holds that
a final judgment will bar any subsequent suit between the same parties
or their privies where the matter raised in the subsequent suit was or
could have been decided in the first suit. See Summerville v:_ Denali
Cntr , 811 P.2d 1047, 1050 (Alaska 1991).
Here, Ehrlander claims that he has not been fairly compensated for
the taking of his property, and that various state employees participated
i a conspiracy to deprive him of his Property for as little as possible.
However, these issues either have been or could have been lingated in
prior state Court proceedings. See State v. Ehrlander, No. 0825 (Alaska
July 31, 1996) (condemnation and inverse condemnation); Ehrlander y.
Alaska, 797 P.2d
629 (Alaska 1990) (inverse condemnation); State v.
Ehriander, No. 4FA-86-2287 (Alaska Super. Ct. March 21, 1988)
(condemnation); Ehrlander v. State, No. 4FA-86-2287 (Alaska Super.
Ct Feb. 3, 1993) (inverse condemnation); Ehrlander v. State, No.
4FA-95-0807 (Alaska Super. Ct. March 4, 1996) (state tort and civil
mghts action). Ehrlander is therefore barred by the doctrine of res
judicata from relingating these claims in federal court. See Palomar
Mobilehome Park Ass’n, 989 F.
2d at 365; see also Sanchez, 936 F.2d
at 1035 (stating that where a federal constitutional claim is based on the
A. 11
same asserted wrongs as a state action, res judicata will bar the federal
constitutional claim whether or not it was asserted im state court). 1/
Ehrlander concedes that "fa]ll issues in this case have been raised in
the state courts." However, he argues that none has been “fully
litigated." He apparently believes that because he did not receive all of
the damages he sought in state court, his issues were not fully litigated.
This argument fails. Ehrlander has exhaustively litigated his claim that
he did not receive adequate compensation for the taking of his property
in state court. While Ehrlander is dissatisfied with the outcome of the
prior litigation, and believes that the Alaska superior court and supreme
court erred because he did not receive the full measure of damages he
sought, we do not have jurisdiction to review state (foot note)
Although assistant attorney general Raymond Funk and the two
Alaska Department of Transportation employees were not parties to the
state court proceedings, we conclude that they are privies of the parties
to the state court proceedings. See Fund for Animals, Inc. v. Lujan, 962
F.2d 1391, 1398 (9th Cir. 1992); Tolstrup v. Miller, 726 P.2d 1304, 1307
(Alaska 1986). (end of foot note)
court rulings. See MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir.1987)
(per curiam).
Ehrlander also contends that the district court erred by applying res
judicata because, in the condemnation and tmverse condemnation
proceedings, he reserved the nght to proceed in federal court on his
federal claams. See Dodd v. Hood R.iver County, 59 F.3d 852, 861-62
A. 12
(9th Cir. 1995). This argument fails. In his action against the State of
Alaska and assistant attorney general John Athens, see Ehrlander v.
State, No. 4FA-95-0807 (Alaska Super. Ct. March 4, 1996), Ehrlander
expressly raised his federal claims and those claims were decided against
him on summary judgment. 2/
AFFIRMED.
(FOOT NOTE) Although Ehrlander also filed a reservation of federal
claims in his action against the State of Alaska and assistant attorney
general Athens, the reservation was filed after the Alaska superior court
granted the defendants’ motion for summary judgment.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Filed May 5, 1997
LARS W. EHRLANDER, No. 96-35915
Plainuff-Appellant, D.C. No. CV-96-00021-JKS
V.
STATE OF ALASKA, DEPARTMENT OF
TRANSPORTATION; JOHN ATHENS;
RAYMOND FUNK; JOHN MILLER; DONALD
BAUM; FEDERAL HIGHWAY
ADMINISTRATION,
Defendants-Appellees .
Before: SNEED, FARRIS, and THOMAS, Circuit Judges.
The panel has voted to deny appellant’s petition for rehearing. Judge
Thomas votes to reject the suggestion for rehearing en banc and Judges
Sneed and Farris so recommend.
The full court has been advised of the suggestion for rehearing en
banc and no active judge has requested a vote on whether to rehear the
matter en banc. See Fed. R. App. P. 35.
The petinon for reheanng 1s demed and the suggestion for
rehearing en banc 1s rejected.
OPINIONS, ORDERS, FINDINGS OF FACT AND
CONCLUSIONS OF LAW IN COMPANION CASES
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
lars Ehrlander, plainnff,
VS.
Karrbanks North Star Borough and State of Alaska, Department of
‘Transportation and Public Facihtnes, defendants.
Case No: 4FA-86-2287 Crvil
and
State of Alaska, plainnff,
VS.
6.313 acres, more or less, Lars W. Ehrlander, et al, defendants.
Case No. 4FA-86-886
Project No. RS-RRS-M-OOOS(52)
Parcel No. 2O0A
Date of Order. November 20, 1987
ORDER
The Court, bemg fully advised in the premises, and upon stipulation
of the parties,
IT IS HEREBY ADJUDGED, ORDERED, AND DECREED
that the above-captioned case shall be bifurcated, with the
condemnation case, pertaming to the summons and complaint filed on
A. 14
Apnil 29, 1986, being med during the week of December 7, 1987, and
under the appropriate provisions of the existing pretrial order.
'T IS FURTHER ADJUDGED, ORDERED AND DECREED
that the inverse condemnation taking case, with respect to the complaint
filed by Lars Ehrlander, shall be reassigned for a trial date subsequent to
the condemnation case, and that the issues to be determined in that case
shall be the damages and compensation due Ehrlander for that penod
of tme from August 24, 1983 until Apni 29, 1986, and that the parties
shall apply to the court for a new tnal date with respect to that inverse
condemnation case.
Date: Nov. 20, 1987 Signed, James R. Blair, Superior Court Judge.
Case No. 4 A-86-2287 & 4FA-86-886 Civil.
IN THE SUPERIOR COU
State of Alaska, plainnff,
VS.
6.313 acres, more or less, Lars
Case No. 4FA-86-886
RT FOR THE STATE OF ALASKA
W. Ehrlander, et al, defendants.
December 7, 1987 TRIAL
improvements)
Judge Blair, superior court judge
on 1986 value. (impaired and absent
Mr. Vancil, counsel for the State
Mr. Satterberg, counsel for defendant.
(Mary Ehrlander Direct) From 1987 trial franscript page 220:
MR. VANCIL: Your Honor, then could I ask for the most explicit
ruling you can give about the degree to which anything relating to the
‘83 to ‘85 temporary taking should be excluded, for instance . . .
THE COURT: _ No, all I ever ruled was that we’re going to do this
case based on the 1986 values.
MR. VANCIL: Yes, Your Honor.
THE COURT: So I don’t know what you’re saying as to I said
something else.
MR. VANCIL: Well, Your Honor, I’m saying that as I understood
your order, you were not going to allow us to talk about damages
resulting from the 1983 to ‘85 taking and...
THE COURT: _ That’s nght and I’m not.
MR. VANCIL: _. . . and those damages are presumed not to have
occurred in this appraisal, so that if...
THE COURT: _ If Karl Sopp comes in and testifies that the property
is worth “X” in 1985, $1,500,000.00 -- or 86, $1,5000,000.00 and that’s
based upon the fact it should have been zoned or platted in 1983 and
Mr. Vancil (sic) walks away with a $1,500,000.00 verdict, that ends any
discussion as far as additional damages except the ones that I’ve already
indicated exist.
A. 16
MR. SATTERBERG: | Sure.
; THE COURT: — From 3 to ‘86, that is possible sales that could have
taken place before ‘86 that would have been more and possible Carrying
charges or things of that nature the he’s talked about.
MR. VANCIL: My problem, Your Honor, is that the appraisers have
different assumptions. The State appraisers do not assume anything
other than we have an ‘86
ont Patina sabe.
nt in caine are AO SC Lame
in ld a nbc Si
taking of unimproved property. The
: consequence of that difference is large.
THE COURT: The highest and best use was a subdivision in 1986
and the Borough should have granted a plat to allow that to be used as a
) subdivision in 1986, which | Suess everybody agrees they should have
done. ...
THE SUPREME COURT OF THE STATE OF ALASKA
| State of Alaska, Department of T ransportation and Public Facilities,
i Appellant and Cross Appellee,
4
: v.
Lars Ehrlander, Appellee and Cross Appellant.
: Supenior Court No. 4FA-86-2287
. Supreme Court No. S-6075/6076/7135
4-30-96 ORDER
) DENIED: Motion to amend points on appeal -- motion to merge and
Stay, and oppositions -- motion to waive final judgment in the 886 case,
to merge (2287 & 886) - motion to enforce AS 34,60,120 (3)
mouon for judgment on Klopping damages --
motnon for compensation
A. 17
for the improvements -- motion to enforce the Bifurcation Agreement
-- motion for the highest and best use.
THE SUPERIOR COURT FOR THE STATE OF ALASKA
State of Alaska, Plainnff,
v.
6.313 Acres, more or less;
and Lars W. Ehrlander, Defendant.
Superior Court Case No. 4FA-86-886 Civil
Judge Niesje J. Stemnkruger
September 28, 1996
ORDER DENYING EHRLANDER’S CROSS-MOTION
FOR CIVIL RIGHTS VIOLATIONS, EXTORTION, ETC.
The court having considered Ehrlander’s Cross-Motion for
Civil Rights Violations, Extortion, Etc., and the opposition of the State
of Alaska,
IT IS HEREBY ORDERED that said motion ts demed. Any
Civil nghts, extortion claims must be litigated in a separate action. The
motion for reconsideration of the 8-26-96 Order is Denied.
Dated: 9-28-96
Signed Niesje J. Stemnkruger, Judge of the Supenor Court
LISP ANSISD SDSS PASI ISIS I PDP PDP DARD APD PRADA AS
CONSTITUTIONAL PROVISIONS, STATUTES AND
REGULATIONS
CONSTITUTIONAL PROVISIONS
Alaska Const. Art. 1. Sec. 1. Inherent rights. . . all persons have
natural nights to life, liberty, the pursuit of happiness, and the enjoyment
of the rewards of their own industry; that all persons are equal and
entitled to equal rights, Opportunities, and protection under the law...
A.C. Section 6., Petition. The nght of the people to petition the
government shall never be abridged.
A.C. Section 7. Due Process. No person shall be deprived of life,
liberty, or property, without due process of law. The nght of all persons
to fair and just treatment in the course of legislative and executive
investigations shall not be infringed.
A.C. Section 14. Searches and seizures. The nght of the people to
be secure in their persons, houses and other property, papers, and
effects, against unreasonable searches and seizures shall not be violated.
A.C. Section 16. Civil Suits: Trial by jury. In civil cases where the
amount in controversy exceeds two hundred and fifty dollars, the right
to tal by a jury of twelve is preserved to the same extent as it existed at
common law...
A.C. Sec. 18 Eminent domain. Private property shall not be taken or
damaged for public use without just Compensation.
US Constitution Article 3, Section 2. The judicial power shall extend
to all cases. No State may infringe on rights protected by the US
Constitution.
Article 4 Sec. 1, 2. Citizens of each State shall be treated equally.
Article 6. This Constitution, and the Laws of the United States which
Shall be made under the authority of the United States, shall be the
Supreme Law of the Land; and the Judges in every State shall be bound
thereby, anything in the Constitution or Laws of any State to the
contrary notwithstanding.
Amendment 1. Congress shall make no law ... abridging ... the right of
the people .. to petition the Government for a redress of grievances.
Amendment 5. Due process; emment domain. ... nor be deprived of
life, liberty, or property, without due Process of law; nor shall private
Property be taken for public use, without just Compensation.
A. 19
Sno a ‘
Amendment 7. In suits at the common law, where the value in
controversy shall exceed twenty dollars, the nght of tnal by jury shall be
preserved, and no fact tried by a jury shall be otherwise reexamined in
any Court of the United States, than according to the rules of the
common law.
Amendment 8. ... nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment 11. The judicial power of the united States shall not be
construed to extend to any suit im law or equity, commenced or
prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any foreign State.
Amendment 13. Section 1. Neither slavery nor involuntary servitude,
except as a punishment for crme whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to
their jurisdiction.
Amendment 14. Section 1. All persons bor 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 shall abridge the pnvileges or ummunities 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 jurisdiction the equal protection of the laws.
STATUTES
AS 09.10.070 Establishing Equitable Estoppel Reliance on
musrepresentations result m a party's failing to pursue a remedy timely.
Equitable Tolling. There is no need to pursue two similar remedies at
the same time.
AS 09.25.010 Statute of Frauds (a) In the following cases and under
the following conditions an agreement, promise, or undertaking 1s
unenforceable unless it or some note or memorandum of it is in wnting
and subscribed by the party charged or an agent of that party...
AS 09.25.020 Exemptions to statute of frauds. A contract, promise,
or agreement which is subject to AS 09.25.010, which does not satisfy
the requirements of that section, but which 1s otherwise valid 1s
enforceable if
(1) there has been full performance on one side accepted by the other
im accordance with the contract; or
A. 20
the party against whom enforcement is sought admits, voluntarily or
involuntarily, in pleadings or at any other Stage of this or any other
action or proceeding the making of an agreement:
AS 09.40.230 Authorization for injunction. (2) the defendant is
$Omng, OF threatens or is about to do, oF is procuring or suffering to be
done some act in violation of the plaintiff's rights concerning the
subject of the action and tending to render the judgment ineffectual.
(1) the value of the sought to be condemned, and all
improvements on it pertaining to the realty, and of each separate estate
Of interest in it; if it consists of different parcels, the value of parcel and
each estate or interest in each parcel shall be separately assessed.
(2) if the property sought to be condemned constitutes only a
part of 2 larger parcel, the damages which will accrue to the portion ner
sought t be condemned by reason of its severance from the portion
sought to be condemned, and the c ion of the improvements in
the manner Proposed by the plaintiff...
A. 21
AS 09.55.370 Final order of condemnation. When payments have
been made and the.. the court shall make a final order of
condemnation...
AS 09.55.430 Content of Declaration of Taking. (3) A description
of the property sufficient for the identification of it;
AS 09.55.460 (b) Effect of appeal The plaintiff may not be divested
of a title or possession acquired except where the Court finds that the
property was not taken by necessity for a public use or purpose im a
manner compatible with the greatest public good and the least private
injury. In the event of that finding, the court shall enter the judgment
necessary to (1) compensate the persons entitled to it for a period
during which the property was in the possession of the planuff...
restore the property to the condition in which it existed at the time of
the filing of the declaration of taking unless such restoration is
impossible, in which case the court shall award damages to the proper
persons as compensation for any diminution in value of the property
caused by the plaintiff's wrongful possession.
AS 24.40.010 Invalidity generally. A conveyance or assignment, in
writing or otherwise, of an estate or mterest in lands, or in goods, or
things in action, or of rents or profits issuing from them or a charge
upon land, goods, or things in action, or upon the rents or profits from
them, made with the intent to hinder, delay, or defraud creditors or
other persons of their lawful suits, damages forfeitures, debts, or
demands, or bond, or other evidence of debt given, action commenced,
decree or judgment suffered, with the like intent, as against the persons
so hindered, delayed, or defrauded 1s void.
AS 34.40.090 Fraudulent intent question of fact. The question of
fraudulent intent in a case arising under the provisions of this chapter 1s
a question of fact, and not of law.
AS 34.55.004 Fraudulent and prohibited practices. It is unlawful
for a person, in connection with the offer, sale or purchase of
subdivided land directly or indirectly, to knowingly
(1) employ a device, scheme, or artifice to defraud;
(2) make an untrue statement of a maternal fact or omit a
statement of a material fact necessary m order to make the statements
made, in light of the circumstances under which they are made, not
musleading; or
(3) emgage in an act, practice, or course of business that
operates or would operate as a fraud or deceit upon a person.
A. 22
AS 34.55.046 Definitions. (7) "subdivision" and "subdivided land"
means land that is divided or is proposed to be divided for the purpose
of disposition into two or more lots, parcels units, or interests and also
includes any land whether contiguous or not if two or more lots, parcels
units, Or interests are offered as a part of a common promotional plan
of advertising and sale; if the land is contiguous or is known, designated,
or advertised as a common unit or by a common name, the land shall be
presumed, without regard to the number of lots covered by each
individual offering, as being offered for disposition as part of a common
promotional plan.
AS 34.60.040 Relocation payments.
(1) actual expenses in moving a person, the person's family,
business ...
(2) actual direct losses of tangible personal property as a result
of moving or discontinuing a business...
(3) actual reasonable expenses in searching for a replacement
business. (c) A displaced person eligible for payment under (a) of this
section who is displaced from a place of business ... and who elects to
accept the payment authorized by this subsection in place of the
payment authonzed by (a) of this section, may receive a fixed payment
amount equal to the average annual net earnings of the business ...
except that this payment shall not be less than $1,000.00 or more than
$20,000.00.. 10
AS 34.60.070 Expenses incidental to transfer of property. ... The
State agency... shall reimburse the owner, to the extent the department
considers fair and reasonable, for expenses necessarily incurred for
(1) recording fees, transfer taxes, and similar expenses
incidental to conveying the real property to the state agency;... AS
34.60.080. Litigation expenses. (a) (c) ... agency ... shall award ... a sum
that will in the opinion of the court reimburse the owner for reasonable
costs, disbursements, and expenses, including reasonable attorney,
appraisal, and engineering fees, actually incurred because of the
condemnation proceeding.
AS 34.60.090 Relocation services. (4) assist a person displaced from
the person's business or farm operation in obtaining and becoming
established in a suitable replacement location...
AS 34.60.120(3) Do not consider Decreases caused by the project.
"A decrease in the value of property caused by the public improvement
for which the property is acquired or by the likelihood that the property
A. 23
would be acquired for the wmprovement must be disregarded m
determining just compensation.”
(9) If the acquisition of only part of the property would leave
its owner with an uneconomic remnant, an offer to acquire the entire
property shall be made.
AS 34.60.130. Uniform acquisition policy for improvements. .. if
a state agency acquires any interest in real property, the state agency
must acquire at least an equal mterest in all buildings, structures or other
improvements located upon the real property which the state agency
requires to be removed from the real property or which the state agency
determines will be adversely affected by the use to which the real
property will be put.
(b) For the purpose of determining just compensation to be
paid for a building, structure, or other umprovement required to be
acquired under (a) of this section, the building , structure, or other
improvement is considered to be a part of the real property to be
acquired. ... and the fair market value which the building, structure, or
improvement contnbutes to the fair market value of the real property to
be acquired...
AS 34.60.150 Definitions. (1) “business” means any lawful
activity...
AS 44.88.38 Personal liability. An officer, employee, or agent of the
authority may not be held personally lable in a civil action for damages
for an act done or omitted in good faith while performing the functions
of office, employment, or agency under this chapter. USCS 23
Sec. 127 (b) — Reasonable access. No State may enact or enforce any law
denying reasonable access to motor vehicles subject to this title to and
from the Interstate
USC 28 Sec. 1331 The district court shall have orginal jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the
United States.
USC 28 Sec. 1343 (a) (1, 2, 3, 4,) Civil rights and elective francise
(a) The district court shall have original jurisdiction of any civil action
authonzed by law to be commenced by any person:
(1) To recover damages for injury to his person or property, or because
of the deprivation of any nght or pnivilege 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 depravation, under color of law, statute, ordinance,
regulation, custom or usage, of any night, privilege or immunity secured
by the Constitution of the United States or by any act of congress
Providing for equal rights of citizens or of all persons within the
jurisdiction 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 nghts, including
tenant. The district court shall have onginal jurisdiction of any civil
action commenced by any tenant in common or jot tenant for the
partition of lands where the United States is one of the tenants in
common or joint tenant.
USC 28 Sec. 1358 The district court shall have onginal jurisdiction of
all proceedings to condemn real estate for use of United States or its
departments or agencies
USC 28 Sec. 1367 Supplemental Jurisdiction
(a) Except as provided in subsection (b) and (c) or as expressly
provided otherwise by Federal Statute, m any civil action of which the
district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include all claims that
involve the joinder or intervention of additional parties.
(c) The district court may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if—
(1) the claim raises novel or complex issues of State law,
(2) the claim substantially predomunates over the claim or claims over
which the district court has onginal jurisdiction,
(3) the district court has dismissed alll claims over which it has original
jurisdiction, or
(4) im exceptional circumstances, there are other compelling reasons for
doctininn snsiadicsi
USC 28 Sec. 1991, 1992, 1995
A. 25
USC 42 Sec. 1455(c)(1)
USC 42 Sec. 4625
USC 42 sec. 1983 Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. For the purpose 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.
USC 42 Sec. 1985 (2) ...if two or more persons conspire for the purpose
of impeding, hindering, obstructing, or defeating, in any matter, the due
course of justice in any State or Terntory, with intent to deny to any
citizen the equal protection of the laws, ...
USC 42 Sec. 1986 Action for negiect to prevent.
Every person who, having knowledge that any of the wrongs conspired
to be done, and mentioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid im preventing the
commission of the same, neglects or refuses so to do, if such wrongful
act be committed, shall be liable to the party imjured, 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 case; and any number of
persons guilty of such wrongful neglect or refusal may be jomed as
defendants in the action . . . . but no action under the provisions of this
section shall be sustained which is not commenced within one year after
the cause of action has accrued.
FEDERAL REGULATIONS
49 CFR Sec. 24.101 -- Real Property Acquisition
Sec. 24.101 Applicability of acquisition requirements.
(a) General. The requirements of this subpart apply to any acquisition of
real property for a Federal program or project, and to programs and
projects where there is Federal financial assistance in any part of project
49 CFR Sec. 24.102 -- Basic acquisition policies
A. 26
Lice Pa a dans a aalbat Nesa LS 2E% tn
(k) Uneconomic remnant. \f the acquisition of only a portion of a property
would leave the owner with an uneconomic remnant, the Agency shall
offer to acquire the uneconomic remnant along with the portion of the
property needed for the project. (See Sec. 24.2 (w).)
(1) Inverse condemnation. If the Agency intends to acquire any interest in
real property by exercise of emment domain, it shall institute formal
condemnation proceedings an not intentionally make it necessary for
the owner to institute legal proceedings to prove the fact of the taking
of the real property.
49 CFR Sec. 24.103 — Criteria for appraisals
(a)(2) An adequate description of the property being appraised (and, in
the case of a partial acquisition, an adequate description of the
remaiming property), a statement of the known and observed
encumbrances, if any, title information, location, zoning, present use, an
analysis of highest and best use, and at least a 5-year sales history of the
property.
(3) All relevant and reliable approaches to value consistent with
commonly accepted professional appraisal practices. When sufficient
market sales data are available to reliable support the fair market value
for the specific appraisal problem encountered, the agency, at its
discretion, may require only the market approach. if more than one
approach is utilized, there shall be an analysis and reconciliation of
approaches to value that are sufficient to support the appraiser’s opinion
of value.
(5) (6) Influence of the project on just compensation. To the extent
permutted by applicable law, the appraiser shall disregard any decrease or
increase in the fair market value of the real property caused by the
project for which the property is to be acquired, or by the likelihood
that the property would be acquired for the project, other than due to
physical deterioration within the reasonable control of the owner.
(e) Conflict of interest. No appraiser or review appraiser shall have any
interest, direct or indirect, in the real property being appraised for the
Agency that would in any way conflict with the preparation or review of
the appraisal. Compensation for making an appraisal shall not be based
on the amount of the valuation. ....
49 CFR Sec. 24.304 - Reestablishment expenses — nonresidential moves
In addition to the payments available under Sec. 24.303 of this subpart,
a small business, as defined in Sec. 24.2(t), farm or nonprofit
Orgamzation may be eligible to receive a payment, not to exceed
$10,000, for expenses actually incurred in relocating and reestablishing
A. 27
such small business, farm or non profit organization at a replacement
site.
49 CFR Sec. 24.306 -- Fixed payments for moving expenses --
nonresidential moves.
(a) Business. A displaced business way be eligible to choose a fixed
payment mm heu of the payments for actual moving and related expenses
and actual reasonable reestablishment expenses provided by Sub Sec.
24.303 and 24.304. Such fixed payment, except for payment to a
nonprofit organization, shall equal the average annual net earnings of
the business, as computed im accordance with paragraph (e) of this
section, but not less than $1,000 nor more than $20,000. . . .
RULES
Rule 72 (3)-- Dismissal of Action. By order of the court. Any time
before compensation for property has been determmed and paid, the
court may dismiss the action as to that property after moton and
hearing, except that the court may not dismiss the action as to any part
of the property of which the plainnff has taken possession or m which
the plainnff has taken ttle or a lesser mterest, but shall award just
compensation for the possession, title or lesser interest taken. . .
Rule 72 (5)f — Amendment of Pleadings. The phintiff may amend
the complaint without leave of court at any time before tnal of the issue
of compensation and as many times as desired . . . .
Rule 72(2)(iv) — a description of the property to be taken sufficient to
identify and locate it; that each imterest taken, to "each separate piece"
of property be specified.
MISCELLANEOUS
Right to earn livehhood —- A property nght.
Fraud in consideration -- Misrepresenting something bemg bought or
sold. By benefiting from half of the Bifurcation Agreement, the State
purchased developed land at the price of undeveloped land.
Chapter 17.10.020 Jurisdiction; “Subdivision” Defined.
Fraud in inducements -- inducing us, in order to compromise our
position, to enter an agreement that the state had no mtention of
hononing.
A. 28
nnn rnmnmnennnnnnnnmnnmnnnnnnnmnnnw
EVIDENCE OF ISSUES BIFURCATED
ACQUISITION SERVICES, INC.
Mr. Gary Vancil, Attorney December 3, 1987
P. O. Box 75373
Fairbanks, AK 99707
Re: Appraisal of Parcel 20-A [Ehrlander)
Proyect No. RS-RRS-M-OOOSIS2)
Geist Road Extension: Peger to College
CHANGE TO CONDITIONS AND SERVICES:
Mr. Hoagland, state appraiser April 13, 1988.
This Amendment is necessary to provide a concise written report on
parcel 20A to establish the following facts: (1) The date of taking the
court alleges took place prior to the State’s date of taking on said parcel;
(2) To determine whether any business losses occurred as alleged by
imverse proceedings; (3) To provide engineering costs; (4) To
penne compensation, if any. (5) To determine if any diminution of
value to property took place as a result of taking; and (6) To establish
damages, if any... .
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
FOURTH JUDICIAL DISTRICT
LARS EHRLANDER,
Plainnff,
V.
STATE OF ALASKA, DEPARTMENT
OF TRANSPORTATION AND PUBLIC FACILITIES,
Defendants.
a a, Sar .
A. 29
Case No. 4FA-86-2287 Civil
Case No. 4FA-86-886 Civil
RESERVATION OF FEDERAL CLAIMS AND ISSUES FOR
FEDERAL COURT
COMES NOW Lars Ehrlander, by and through his counsel
Robert John the Law Offices of William R. Satterberg, Jr., and hereby
notifies this Court that he intends to pursue any federal constitu-
tional or statutory claims in federal court following the conclusion of
State court proceedings in this matter. Accordingly, to the extent that
Lars Ehrlander’s federal law claims and issues have not been previously
addressed and determined in this matter and may otherwise be
pursued against the State and others in federal court following the
conclusion of proceedings im this matter, Lars Ehrlander reserves
such claims and issues for determination in federal district court
following the conclusion of this case. Correspondingly, Lars Ehrlander
reserves the nght to petition to the United States Supreme Court for
a wnt of certioran in this case concerning those federal claims and
issues which are not reserved for federal court following the conclusion
of this case.
While Lars Ehriander may refer to decisions of the United
States Supreme Court and other courts concerning federal
constitutional and statutory claims and issues, any such references have
not been intended to and are not intended to constitute the lingating of
A. 30
a federal claim or issue. Rather, such references to decisions of the
United States Supreme Court and other courts concerning federal
claims and issues are made solely for their persuasive authority.
DATED this 7th day of August, 1992, at Fairbanks, Alaska.
THE LAW OFFICE OF WILLIAM R. SATTERBERG, JR.
BY Robert John
Attomey for Lars Ehrlander
AAA AAA AAA AASAAAAAAAAANNNASAYYS
EVIDENCE OF IMPAIRMENTS
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
Lars Ehrlander , plainnff,
’
State of Alaska and Public Facilities, Defendants.
Case No. 4FA-86-2287 Civil
AFFIDAVIT OF GLENN POTTS, State appraiser
Glenn Potts, being first duly sworn, deposes, and says:
1. He has knowledge of the facts herein.
2. I was employed by the State of Alaska as a real estate appraiser in
1983 and 1984. In this capacity, I was asked by the State in late 1983 or
early 1984 to establish the fair market value of an area of Lars
Ehrlander's property south of the proposed Geist Road Extension
which the State was contemplating selling to Golden Valley Electric
Association after the State acquired the property from Mr. Ehrlander.
A. 31
3. After thoroughly examining the area and the pertinent market, |
estimated that the fair market value of the property was $4.50 per
square foot, as set forth in Exhibit 1 to this affidavit.
4. Property such as that which Lars Ehrlander sought to subdivide
for residential purposes in 1983 and 1984, but could not due to the
pendency, of the State's Geist Road Extension (now the Johansen
Expressway), is particularly vulnerable to substantally impaired
marketability due to pending acquisition by the State since families and
other with long term housing needs rarely, if ever, desire to
purchase, lease, rent, or otherwise obtain an mterest in property when
that imterest may be destroyed m a forthcommg condemnation,
necessitating those persons to incur the hardships attendant in moving
and obtaining other property to satisfy their housing needs.
5. The Alaska Statutes, AS 34.60.1203) (Exhibit 4), requires
that for just compensation purposes property be appraised
without including any decrease im value due the pendency of the
project for which it 1s eventually acquired. The State of Alaska's
appraisal by Gary Hoagland which the State utilized in the formal
condemnation case, 4FA-86-886 Civil, however, failed to exclude
the decrease in value .to Lars Ehrlander’s property resulting from the
pendency of the Geist Road Extension, but instead specifically included
the decreased, depressed value im its determimation of just
A. 32
Ds Pawel Aa
compensation. This fundamental error in Mr. Hoagland's appraisal is
evident on its very face as indicated in the cover letter to the appraisal, a
copy of which is attached as Exhibit 2 to this affidavit. Only by virtue
of the Stipulation and Order (Exhibit 3) reserving for the
above-captioned case the damages to Mr. Ehrlander’s property due to
the pendency of the State's Geist Road Extension, could the
prejudicial effects of Mr. Hoagland’s appraisal and testimony be cured.
FURTHER AFFIANT SAYET NAUGHT.
Sworn on December 11, 1991 Glen Potts, Affiant
Value of Ehrlander’s Property - Estimate (by Glen Potts)
It is estmated that the Right of Way (ROW) will encompass 3.8+
acres or 165,000 sq. ft. and an uneconomic remainder of 3.5+ acres or
152,460 sq. ft. will lie between the road and railroad. Due to actions
initiated by the Borough without the Department of Transportation's
(DOT & PF) concurrence, this Ehrlander property of 23.3+ acres was
only Partially subdivided. It is assumed that the property must be
appraised as though totally subdivided and DOT & Pf. were purchasing
individual lots on the basis of $4.50 per sq. ft. Prior to deriving a value
for the areas needed for the project, net subdivision lot areas must be
calculated and development cost not incurred to date must be
subtracted from the gross square foot lot cost. After all these factors
are considered, it is my opinion that the value of the ROW is $330,000.
A. 33
and the damaged uneconomic remainder is $290,000 for a total of
$620,000.
The potential value of the uneconomic remnant in assemblage
to the Golden Valley Electric Association (GVEA) holdings with an
industrial use is estimated to be $1.00/sq. ft. or $152,460. the degree of
need that GVEA might have for this parcel is unknown. They have
indicated a desire to purchase at a bargain price. I will assume that a
price of 50 cent on the dollar would be a sufficient amount to entice
GVEA to purchase. Therefore, the value of the remainder is
$75,000(R_).
Signed Glenn Potts
QADADAADMNMDMDMDMMmmrmmmmmmmmpppr—w—v"
EVIDENCE OF THE PROPERTY BEING IMPROVED
CITY OF FAIRBANKS
February 5, 1987
Subject: Royal Court Village
Dear Mr. Ehrlander-.
In response to your recent mquiry, sewer and water connection
charges were calculated on the basis of the City providing water
for distribution and sewer treatment service to the property as shown on
the attached preliminary plat for Royal Court Village. The charges
were specified in the annexation ordinance (see attached Ordinance No.
4265, adopted September 12, 1983) and payment was received m the
A. 34
full amount of $44,137.22 on July 5, 1984. The sewer and water
system constructed has the capability of providing sewer and water
service to the enture subdivision as shown on the preliminary plat.
Sincerely, J, C. Phillips, City Engineer
“The Golden Heart City”
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.