Amicus Curiae Brief — Pryor v. Summit Medical Associates, P. C.

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MOTION FILED (3)

No. 99-1041

FEB 2 2000

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1999

BILL PRYOR, in his official capacity as Attorney General for the State of

Alabama and his agents and successors; and ELLEN BROOKS, in her

. official capacity as Montgomery District Attorney;

Petitioners,

Vv.

) SUMMIT MEDICAL ASSOCIATES, P.C., BEACON WOMEN’S

CENTER; NEW WOMAN, ALL WOMEN HEALTH CARE; and

WILLIAM H. KNORR, M.D., on behalf of themselves and their patients’

| seeking abortions;

‘ Respondents.

On Petition for Writ of Certiorari to the

United State Court of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

UNDER RULE 37(2)(b) WITH ATTACHED BRIEF AMICUS CURIAE

OF JAMES J. CLANCY (MEMBER OF THE SUPREME COURT

BAR) IN SUPPORT OF NEITHER PARTY, SUGGESTING

REVERSAL OF THE JUDGMENT FOR RESPONDENTS FOR LACK

OF SUBJECT MATTER JURISDICTION; PURSUANT TO THE

AUTHORITY OF THE 11™ AMENDMENT, WATSON V. BUCK, 313

U.S. 387 (1941); YOUNGER V. HARRIS, 401 U.S. 37 (1971); HUFFMAN

| V. PURSUE, LTD., 420 U.S. 592 (1975); AND THE YOUNGER -

| HUFFMAN ABSTENTION DOCTRINE.

| JAMES J. CLANCY*

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352-2221

(818) 352-2069 FAX: (818) 352-6549

Amicus Curiae

February 2, 2000 *Counsel of Record.

oe eee

Eee a ei ee aes

QUESTION PRESENTED

Whether the Judgment for the Respondents must be reversed for

lack of Article 3, §2 Subject Matter Jurisdiction due to failure

of the Trial Court to make the Jurisdictional Findings of Fact

required by the Younger Abstention Doctrine, Younger v.

Harris, 401 U.S. 37, 27 L.Ed.2d 669, 91 S.Ct. 746 (1971), and

the Huffman Abstention Doctrine, Huffman v. Pursue, Ltd.,

420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975) ?

SNE

PE A i loa SAI as RE mm

- ili -

TABLE OF CONTENTS

QUESTIONS PREGEIN TIDY 6 0 ois sais eine UBCTb cc cece eens i

TABLE OF CONTENTS, ........ ld abphbhe heen ee tasene iii

TABLE OF AUTHIORITING): 6.6 60 cine veh da awe occ ccccnvce Vv

CARE, «5552 2 dae «1a dd simp ned do oc qarpretdesisiccccccees xi

FEDERAL RULES, STATUTES, ......0ccccccccccsccccccce xx

STATE RULES, STATUTES, 6055000 visevcccccccvccesccccs xxi

TEXTS, LAW REVIEWS, MISCELLANEOUS, ............ xxii

MOTION FOR LEAVE TO FILE AN AMICUS CURIAE

~ BRIEF UNDER RULE 37(2)(b) IN SUPPORT OF

NEITHER PARTY, SUGGESTING A SUMMARY

REVERSAL OF THE JUDGMENT FOR THE

RESPONDENTS UNDER STEEL CO. V. CITIZENS

FORA BETTER ENVIRONMENT, 523 U.S. 83 (1998)

FOR LACK OF SUBJECT MATTER

JURISDICTION DUE TO FAILURE OF THE

TRIAL COURT TO MAKE THE

JURISDICTIONAL FINDINGS OF FACT

REQUIRED BY YOUNGER V. HARRIS, 401 U.S. 37

(1971), AND HUFFMAN V. PURSUE, LTD., 420 U.S.

NIRS accor veer oe voce eas onkce ve eces 1

BRIEF OF AMICUS CURIAE JAMES J. CLANCY IN

SUPPORT OF NEITHER PARTY., ..........---- 2

i INTERE F AMICUS CURIAE:

BACKGROUND., eeeeeoeeeeeeeesaeneeeeeeeeeeeee . 2

tt IN F THE AMICUS

STATEMENT OF THE CASE OF CLIENT

CLARENCE F. MURPHY, IN THE U.S. SUPREME

COURT IN CASE NO. 98-1442., ....-2-2e0. @ee#we*e#e#e: 4

-iv-

(A) Adequate Relief Cannot Be Obtained

by Murphy in Any Other Forum or

from Any Other Court for the

Following Reasons:, ..........cceeseeeee 8

(0B) The Refusal of a Majority of Federal

Courts to Acknowledge the

“Jurisdictional” Aspect of the

Huffman Abstention Doctrine

Manifests a Need for Re-Examination

of the Huffman Cases., ...........0000.- 8

Ti INTEREST OF THE AMICUS CURIAE: A

RE-EXAMINATION OF HUFFMAN _V. PURSUE,

LTD., 420 U.S. $92 (1975). 2... ccc cccccccccccvcvccees 9

(A) The Critical Status of the Ohio State

Court’s Jurisdiction and Huffman’s

ELLE SNES SERED A 10

m1(B) Abdication of this Court’s Primary

Duty re Jurisdiction in Huffman-

Ohio’s Concern re Moral Depravity,

an Important State Interest under the

10™ and 11™ Amendments.,........... 11

I(C) The Prosecuting Attorney’s Interests

Versus This Court’s Interests in

Na oi oc. n RANGE RY WAN ieee oud? os 13

11D) The Battle was Won, but the “War”

was Lost. This Court Can, and must

Correct That Defect. .................. 13

ARGUMENT, ....ccccccccccccccvccccccccceceesccsecees 16

CONTENTIONS OF AMICUS CURIAE JAMES J. CLANCY., 19

CONCLUSION., ..cccccccccccccnccccscccccsccscesccces 20

-Ve-

TA F AUTH

CASES

Allen y, McCurry, 449 U.S. 90 at 100,

104, 60 L.Ed.2d 308, 101 S.Ct. 441 ROR Fie sree: 7

Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281,

26 L.Ed.2d 234, 90 S.Ct. 1739 (1970) (Younger at 40), . 19

Dist. of Columbia o eals v. Feldman

460 U.S. 462, 75 L.Ed.2d 206, 103 S.Ct. 1303 (1983)

(see Rooker-Feldman Abstention), ............|. 9, 16

Dombrowski y, 380 U.S. 479, 14 L.Ed.2d 22,

85 S.Ct. 1116 (1965) (Younger at 48), ............ 19-20

Ex Parte Young, 209 US. 123, 52 L.Ed. 714,

28 S.Ct. 441 (1908) (Younger at 45), ............ 17, 19

Fenner v. Boykin, 271 U.S. 240, 70 L.Ed.2d 927,

46 S.Ct. 492 (1926) (Younger at 45-46),......°.. 19

Hicks v. Miranda,

422 U.S. 322, 45 L.Ed.2d 223, 95 S.Ct. 2281 ( 1975), 12,19

Huffman y. Pursue Lid., No. 3b

(Huffman Abstention Doctrine,

420 U.S. 592, 606 fn. 18&19, 61 1-613,

43 L.Ed.2d 482, 493-494 fp. 18&19, 95 §.Ct. 1200 (1975);

reh. den., 421 U.S. 971, 44 L.Ed.2d 463, 95 S.Ct. 1969,

eTER Re Ene OS oo es ee Se 1, 3-11, 13-17, 19

Huffman v. U S. District Court,

PR Se Wey cia aes 9-11, 13

No. 73-1613 Misc.,

in nce U.S.S.C.T. No. 98-1442,

Petition for Writ of Mandamus,.............__ 3-4, 10

Kerr v. U.S. District Court,

426 U.S. 394, 48 L.Ed. 2d 725, 96 S.Ct. 2119 (1976), .... 8

Middlesex Ethics Comm. v. Garden State Bar Assn.,

457 U.S. 423, 73 L.Bd.2d 116, 102 S.Ct. 2515 (1982) .. 16

-Vi-

Migra v. Warren City School Dist. Bd. of Ed.,

465 U.S. 75, 79 L.Ed.2d 56, 104 S.Ct. 892 (1984) .. .. 16

Montgomery v. Bremer County Board of Supervisors.

299 N.W.2d 687 at 692 (Iowa Supreme Court 1980), .. 5

Nemmers v. City of Dubuque, Iowa,

716 F 2S TGR ARS ai ek: oa ak awe aes

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

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

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 at 14-17, fn.°.

95 L.EG.2G 1, 107 BAA Boke Che Sh hsb veces 16-17

Plough v. West Des Moines Community School District,

70 F.3d 512, 516-517 (CA 8" 1995), 5, 16

Puerto Rico Aqueduct and Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139,

121 L.Ed.2d 605 at 610, 113 S.Ct. 684 (1993), ......... 8

Rooker-Feldman Abstention Doctrine

(see Rooker and District of Columbia Court, etc.), ... 9, 16

Rooker v. Fidelity Trust Co., 263 U.S. 413, (1923)

(see Rooker-Feldman Abstention) ............... 9, 16

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 140 L.Ed.2d 210, 118 S.Ct. 1003,

at Point Il (March 4, 1998), ................. 1, 7, 11

Stenberg v. Carhart, U.S.S.C.T. No. 98-830,

Cart GE sss SS oS a ae a ce 3

Summit Medical Associates, P.C., et al. v. Fob James,

Jr., et aL, 984 F.Supp. 1404 at 1419-1420, 1432-1433

(Femi BD, BSIRD nos F vine Siw ein daathd Se thee Bes 2, 16-17

Summit Medical Associates, P.C., et al. v. Pryor,

et al., No. 98-6129 (July 15, 1999),

68 U.S.L.W. at 1079 (publ. Aug. 10, 1999), ......... 2-3

- Vii -

University of Tennessee v. Elliott,

478 U.S. 788, at 799, 92 L.Ed.2d 635,

106 SAt. Sane reeen 6.0. a AG HSTIEUS Ct 16

Watson v. Buck, (Watson v. Buck Abstention)

313 U.S. 387, 401-402, 61 S.Ct. 962 (1941)

(eee ere eS. 1, 17, 19, 20

Will v. U.S.,

389 U.S. 90, 19 L.Ed.2d 305, 88 S.Ct. 269 (1967), ...... 8

Wisconsin Dept. of Corrections v. Schacht, No. 97-461,

524U.S.___, 141 L.Ed.2d 364 at 375-378,

LIC GLe Se ge SOOO, 2 Poe. ie 8S, 8

Younger v. Harris (Younger Abstention Doctrine),

401 U.S. 37, at 40, 45-46, 48-49, 53,

27 L.Ed.2d 669, 91 S.Ct. 746 (1971), ... 1-4, 13-14, 16-20

FEDERAL RULES, STATUTES,

Judicial Doctrines

Mee ea 2s SF Ee ere 5-7, 9, 16

Separation of Powers, .................... 20

Ge ee Pee TT eee e 7, 9, 16

MIN cc ce ck a eee ae 7,13

United States Codes

Med ORM 56k «Hien wed <hyas «Riv acocace 6-7, 10

28 U.S.C. §2281 (repealed in 1976), .......... 10

WUE RM aco Ge a sc ok os we eG 57,9

METRE SEO ee dees Ee 5-7, 20

United States Constitution,

MRE ihaas 6 So eexireaivicicneden oe pcmocnss 7-9, 15

bad Re ig a a 1S

a Oe, 6... ccc eee 9, 11-12

11™ Amendment, ....... 2-9, 11-12, 14-17, 19-20

14™ Amendment, (Due Process Clause), ........ 9

- Vili -

STATE RULES, STATUTES

Bettendorf Zoning Code

OI re COE Pea a es oes 4

§24.4 (20% Rule [procedural] “Protest”), ‘G7

Iowa Constitution,

Article 1, §9 and §18 (“Vested Rights” claim), ... 5

Ohio Revised Codes, Chapter 3767 (re Huffman), ..... 12

TEXTS, LAW REVIEWS, MISCELLANEOUS

Criminal Law, Rollin M. Perkins,

Foundation Law Press, 3*° Ed. (First published in 1955)

I a a a a es eee nes 12-13

Supreme Court Practice, 7 Ed., Stern, Gressman,

MOTION FOR LEAVE TO FILE AN AMICUS CURIAE

BRIEF UNDER RULE 37(2)(b) IN SUPPORT OF

NEITHER PARTY, SUGGESTING A SUMMARY

REVERSAL OF THE JUDGMENT FOR THE

RESPONDENTS UNDERSTEEL CO. V. CITIZENS

FOR A_ BETTER ENVIRONMENT, 523 US. 83

(1998) FOR LACK OF SUBJECT MATTER

JURISDICTION DUE TO FAILURE OF THE

TRIAL COURT TO MAKE THE

JURISDICTIONAL FINDINGS OF FACT

REQUIRED BY YOUNGER V. HARRIS, 401U.S.37

(1971), AND HUFFMAN V. PURSUE, LTD.. 420

U.S. 592 (1975).

NOW COMES James J. Clancy, Attorney at Law, and

a member of the Supreme Court Bar, to move this Court for

leave to file a Brief Amicus Curiae, in support of neither of the

Parties, suggesting a summary reversal of the Judgment for

Respondents under Steel Co, y, Citizens for a Better

Environment, 523 U.S. 83 (March 4, 1998), upon the grounds

of lack of subject matter jurisdiction, pursuant to the

11™ Amendment; Watson vy. Buck, 313 U.S. 387 (1941);

Younger v. Harris, 401 U.S. 37 (1971); Huffman vy. Pursue,

Ltd., 420 U.S. 592 (1975); and the Younger - Huffman

Abstention Doctrines for failure of the Trial Court to make the

jurisdictional findings of fact required by Younger and

Huffman, see, in particular, Huffman, 420 U.S. at 611-613

(last three [3] paragraphs of Chief Justice Rehnquist’s opinion).

Petitioner Pryor has not responded to the request for a

written consent to the filing. Respondents do not consent. See

correspondence at Appendix A to this Brief Amicus Curiae. /

¥ No counsel for a party authorized this Brief in whole or in part,

and no person or entity, other than the Amicus Curiae, made a monetary

contribution to the preparation or submission of this Brief.

ie.

As noted by the Trial Court below, the

11™ Amendment issue presents a case of first impression in the

partial birth abortion area. See Summit Medical Associates,

P.C, et al. v. Fob James, Jr., et al., 984 F Supp. 1404 at 1420

(Jan. 26, 1998).

In the Trial Court below, Attorney General Pryor

pleaded the 11™ Amendment and the Younger Abstention

Doctrine as a jurisdictional bar which precluded the Federal

Court from asserting subject matter jurisdiction over the

Plaintiff's Complaint as filed. This Motion of Amicus Curiae

James J. Clancy is made necessary because the issue of Federal

power (i.e., subject matter jurisdiction under the

11™ Amendment), which was the paramount issue raised by

the Alabama Attorney General in the Court below, is not

discussed in the Attorney General’s Petition for Writ of

Certiorari.

BRIEF OF AMICUS CURIAE JAMES J. CLANCY IN

SUPPORT OF NEITHER PARTY.

I INTEREST F AMICUS CURIAE:

BACKGROUND.

Amicus learned of the Alabama Attorney General’s

11™ Amendment challenge to Federal jurisdiction and the

11™ Circuit’s Opinion in Summit Medical Associates, P.C.; et

aly. Pryor, et al. No. 98-6129 (July 15, 1999) from a

subscription copy of 68 U.S.L.W. at 1079, dated August 10,

1999 and requested his computer operator to obtain a copy from

the Internet.

- On August 18, 1999, Amicus received a copy of the

opinion from the (BNA) Internet and made four phone calls to

the Attorney General’s Office in Montgomery, Alabama (334-

242-7300). Upon inquiry, he was informed that Bert Jordan in

Birmingham was one of the attorneys for Attorney General

Pryor on appeal.

a F

On September 2, 3, 10, 11 and 14, 1999, Amicus phoned

Bert Jordan (205-870-0555). On September 14™ Amicus had

a lengthy (44 minute) phone conversation with Jordan in which

i rm neral’

11™ Amendment challenge as : ase Of first impression was

discussed at great length. Jordan informed Amicus that he was

one of the attorneys on the case, and that a petition for rehearing

en banc would be filed.

On October 18, 1999, Amicus had a second lengthy

(43 minute) phone conversation with Jordan and was informed

that a petition for certiorari would be filed on or about

November 10, 1999 and that the matter of filing a petition for

certiorari was being discussed, but it was not known who would

prepare the petition.

During the above two lengthy phone conversations with

Jordan, Amicus expressed his interest in the Alabama Attorney

General’s Petition for Certiorari and his convictions: (1) that

the Summit case should be reversed upon the authority of

Younger y. Harris, supra, and Huffman v. Pursue, Ltd., supra,

because they were squarely in point on the 117 Amendment

issue and were controlling; and (2) that Amicus had been

attempting to raise that issue in the U.S. Supreme Court since

1975 (25 years); and was presently trying to do so in a case

known as In Re Clarence Murphy, No. 98-1442, etc.; and also

explained most of the contentions of Amicus regarding his

reason why the Younger and Huffman Abstention Doctrines

were controlling.

On Saturday, January 15, 2000, Amicus learned from an

L.A. Times news article that this Court had granted a Writ of

' Certiorari in Stenberg v. Carhart, No. 99-830. On Monday,

January 24, 2000, Amicus was informed by the Alabama

Attorney General in Montgomery (334-242-7445 [Michael

Jackson]) that Attorney Jay Sekulow in Washington, D.C. was

preparing the Petition for the Alabama Attorney General. On

On pet 28, 2000, Amicus faxed 2 a a for conti to

filing an Amicus Curiae Brief for the benefit of the Court on the

11™ Amendment and the Younger - Huffman

Abstention issues. See Appendix A to the Amicus Curiae

Brief.

ll. INTEREST OF THE AMICUS CURIAE:

STATEMENT OF THE CASE OF CLIENT

CLARENCE F. MURPHY, IN THE U.S.

SUPREME COURT IN CASE NO. 98-1442.

Planned Parenthood wishes to construct an abortion

clinic in Bettendorf, lowa. The Bettendorf Zoning Ordinance

allows abortion clinics on property in a C-5 Zone.

Had Planned Parenthood purchased a C-5 Zoned

property, it would not have had a zoning problem. Instead, it

chose a property in a PUD Zone within 200 feet of three

relatively new residential apartment complexes and submitted an

application for approval of a C-S Zoning Ordinance.

Murphy and two other adjacent apartment owners within

200 feet of the Planned Parenthood property made a successful

statutory protest (20% Rule) against the zone change, pursuant

to Bettendorf Zoning Code, §24.2 and §24.4 (see at

Appendix B to this Amicus Brief, Murphy’s lowa District

Court Petition for a Declaratory Judgment filed on December 7,

1999 as a foil to compensate for U.S. District Judge Wolle’s

refusal to allow Murphy to litigate Judge Wolle’s egregious

rulings in the Federal Court), which precluded the Bettendorf

City Council from adopting a C-5 Zoning Ordinance unless the

City Council voted 6-1 in favor of the Zoning Ordinance. The

City Council aligned itself with the protesters and on March 19,

1996 voted 5-1 to reject the C-5 Zoning Ordinance. That quasi-

judicial order was not appealed and is now final and Res

Judicata under Iowa Law.

Zoning Rights are“Vested Rights” under lowa Law and

the Iowa Constitution. The 8™ Circuit Court of Appeals has

so held in its decision in Nemmers v, City of Dubuque, Iowa,

716 F.2d 1194 (1983).

Under Iowa case law, a city council’s action on a zone

change request is broadly defined to be a “judicial function”

which can be appealed by writ of certiorari to the Iowa District

Courts, see Montgo v. Bremer County Board o

Supervisors, 299 N.W.2d 687 at 692 (Iowa Supreme Court

1980). [fan appeal is not filed within 30 days, the city council’s

actions become final, in which case, under the

11™ Amendment and Huffman v. Pursue Ltd, 420 U.S. 592

at 606, fh. 18 and 19 and the progeny of Huffman, and Plough

v. Des Moines Community School District. 70 F.3d 512

at 516-517 [CA 8™ 1995], the city council’s quasi-judicial

order is both final and Res Judicata.

On March 21, 1997, one year and two days after the

ncil’s rejection of -5 Zoning Ordin Planned

Parenthood filed a Civil Rights Action under 42 U.S.C. §1983

in the U.S. District Court, pleading what is, in essence, an

appeal from the March 19, 1996 decision of the Bettendorf City

Council which considered essentially the same issues and facts

and denied the application for the C-5 Zoning Ordinance in a

quasi-judicial order which was not appealed to the Iowa District

Court. The federal complaint: (1) did not name the three

adjacent apartment owners who made the successful statutory

protest as defendants; and (2) demanded attorney’s fees under

42 U.S.C, §1988.

The City of Bettendorf filed a Summary Judgment

Motion, pursuant to the Huffman Abstention Doctrine and the

Res Judicata Doctrine which Judge Wolle egregiously denied.

Upon conclusion of the federal trial, Judge Wolle

entered a judgment which purported to rezone the property

from P.U.D. to C-5 Zoning and awarded very substantial

attorney’s fees to Pianned Parenthood under 42 U.S.C. §1988

which would not have been available had an appeal been taken

to the Iowa District Court following the denial of the C-5

Zoning Ordinance.

Murphy moved to intervene in the U.S. hag Court

immedi rth B f atriae”’

announced its decision not to appeal, for the purpose of

appealing U.S. District Judge Wolle’s Judgement on

11™ Amendment, the Huffman Abstention Doctrine and

other jurisdictional grounds, including Judge Wolle’s denial of

the City’s Summary Judgment Motion on its plea of Res

Judicata.

Judge Wolle: (1) ruled “cursorily” on Murphy’s

“extensive” pleadings that the Intervention Motion was

“untimely”; (2) refused to address the merits of Murphy’s right

to mandatory intervention; and the 11™ Amendment; Res

Judicata, and other Jurisdictional claims raised at the time of

Murphy’s Intervention Motion, and (3) refused to hear oral

argument on the intervention and jurisdictional claims.

In the Court of Appeals below, Murphy sought judicial

relief from Judge Wolle’s arrogation of Federal Judicial Power

in two forms: by the filing of a direct appeal and the filing of an

original action (a verified complaint pursuant to a Petition for

Writ of Mandamus) in the 8™ Circuit Court of Appeals,

pursuant to 28 U.S.C. §1651(a).

In a highly unorthodox ruling, the Court treated the

x‘

Appellant’s Opening Brief on the direct appeal and the original

petition for a prerogative writ of mandamus, as though they had

been consolidated and, in a brief single order, denied the petitio

for Writ of Mandamus without an opinion, and summarily

affirmed Judge Wolle’s Judgment, also without opinion. The

Court of Appeals also denied a petition for rehearing and

suggestion of a hearing en banc in each of the two cases.

Murphy contended in his Petition for Writ of Mandamus,

pursuant to the U.S. Supreme Court’s original jurisdiction:

(1) that Planned Parenthood has not stated, and cannot state a

42 U.S.C. §1983 cause of action because it had an adequate

remedy under Iowa procedure of judicial review by the lowa

District Court (see Allen v. McCurry, 449 U.S. 90 at 100

[1980] and Parratt v. Taylor, 451 U.S. 527 [1981]), and

(2) that it is not entitled to attorney’s fees under 42 U.S.C.

§1988 because Iowa and other state courts do not customarily

award attorney’s fees in litigation involving an appeal from a

denial of a C-5 zoning ordinance and application of the

Bettendorf “Protest” Ordinance; and (3) where, as here, a

separate 42 U.S.C. §1983 cause of action is pleaded and relied

upon, it must be tried in the Iowa District Court because of the

11™ Amendment bar, which has been pleaded; and (4) in any

event, Judge Wolle’s Judgment must be reversed because, at this

state of the proceedings, the 11™ Amendment, the Huffman

Abstention Doctrine and the Doctrines of Res Judicata and

Stare Decisis control the disposition of this case and mandate

that the Federal Judgment must be vacated for lack of Article 3,

§2 subject matter jurisdiction.

Murphy contended he is entitled to a Rule Nisi pursuant

to 28 U.S.C. §1651(a) correcting the egregious refusal of both

~ -

if the parties to the asi do not bring the matter to the tnal

court’s attention); ico Aqu d ul

»: Metcalf & Eddy, Inc. 121 L.Ed.2d 605 at 610, 506 US. 139

(1993) (creating a new Rule of Court re the issue “lack of

subject matter jurisdiction”), Wisconsin Dept. of Corrections v.

Schacht, 524U.S.___, 141 L.Ed.2d 364 at 375-378, No. 97-

461 (June 22, 1998) ) (Associate Justice Kennedy’s concurring

opinion re the issue of “lack of subject matter jurisdiction”). See

Kerr v. U.S. Dist. Ct, 426 U.S. 394 (1976); Will v. U.S., 389

U.S. 90 (1967); and Supreme Court Practice, 7” Ed, Stern,

ll (A) Adequate Relief Cannot Be Obtained by

Murphy in Any Other Forum or from Any Other

Court for the Following Reasons:

“Adequate Relief” in the above context means “giving

notice to the U.S. District Courts and the U.S. Courts of -

Appeals in the 11 Circuits, that the Huffman Abstention

Doctrine is “Jurisdictional” and that the Planned Parenthood

Civil Rights Action must be dismissed on those grounds where

the Huffman test has not and cannot be met. This requires a

reexamination of this Court’s opinion and decision in Huffman

y. Pursue, Lid, supra.

i (B) The Refusal of a Majority of Federal Courts to

Acknowledge the “Jurisdictional” Aspect of the

Huffman Abstention Doctrine Manifests a Need for

Re-Examination of the Huffman Cases.

Murphy contends that the rule of law re lack of

Article 3, §2 subject matter jurisdiction under this Court’s

opinion in Huffman v. Pursue, Ltd, supra, has existed for the

past 24 years as an 11™ Amendment right; yet few of the

federal courts consider themselves bound thereby. See in this

regard, U.S. District Judge Myron H. Thompson’s analysis at

pages 17-18, infra.

When faced with Murphy’s lawful right to intervene as

an indispensable party and to contest the U.S. District Court’s

actions (requiring the construction of an abortion clinic within

200 feet of his apartment complex) pursuant to Murphy’s claim

of lack of Article 3, §2 subject matter jurisdiction under the

11™ Amendment, the Huffman Abstention Doctrine, the

Rooker-Feldman Abstention Doctrine, (Rooker v. Fidelity

Trust Co., 263 U.S. 413 [1923] and Dist. of Columbia Court

of Appeals v. Feldman, 460 U.S. 462 [1983]), the Res

Judicata Doctrine and the Stare Decisis Doctrine, both the

U.S. District Court and the U.S. Court of Appeals for the 8™

Circuit dismissed such claims without an explanatory judicial

opinion, in utter disregard of this Court’s repeated admonitions

that a federal court must rule on the jurisdictional issue as its

first order of business.

Murphy submits that, in the light of what is said

hereafter about the background of the rule of law expressed in

ea n jurisdicti f the Hu

case, this Court should clarify the rule of law on “lack of

Article 3, §2 subject matter jurisdiction” in Huffman.

ii INTEREST OF THE AMICUS CURTAE: A

RE-EXAMINATION OF HUFFMAN V. PURSUE,

LTD., 420 U.S. 592 (1975).

27 years ago (May 1973), the substantial federal

question which controls this case; namely, the conflict between

the subject matter jurisdiction of federal courts under the

14™ Amendment (42 U.S.C. §1983) and Article 3, §2 of the

U.S. Constitution; and the subject matter jurisdiction of state

courts under the 10™ and 11™ Amendments to the U.S.

Constitution, was squarely before this Court in two forms:

(1) in Lawrence S. Huffman v. U.S. District Court for the

Northern District of Ohio, Western Division, No. 72-1613

-10-

Misc., being a Motion for Leave to file a Petition for Writ of

Mandamus and Petition for a Writ of Mandamus as to this

Court’s original jurisdiction pursuant to 28 U.S.C. 1651(a); and

(2) in Lawrence S. Huffman vy. Pursue, Ltd., No. 73-296.

which is now reported as 420 U.S. 592, supra, being an appeal

from an adverse judgment of a three judge court with respect to

the constitutionality of the Ohio Public Nuisance Statute as then

required by this Court’s mandatory appellate jurisdiction under

28 U.S.C. §2281 (repealed in 1976).

Amicus Curiae James J. Clancy ” was Counsel of

Record for Allen County, Ohio Prosecutor Huffman (hereinafter

“Huffman’”) in Huffman’s two cases in 1975. A duplicate copy

of the Jurisdictional Statement and the Petition for Rehearing in

Huffman v. Pursue, Ltd, No. 73-296 and the Motion for

Leave to File a Petition for Writ of Mandamus and Petition for

Writ of Mandamus in Huffman v. U.S. District Court, No. 72-

1613 Misc. was filed with this Court as “Exhibits 1A.

1B and 1C” to the Petition for Wnt of Mandamus in Jn Re

Murphy, No. 98-1442, with a request that this Court take

Judicial Notice of such pleadings.

Tl (A) The Critical Status of the Ohio State Court’s

Jurisdiction and Huffman’s Dilemma.

The final judgment which closed the Cinema I Theater

as a Moral Public Nuisance in the Ohio public nuisance case was

filed on November 30, 1972. The attorneys for the theater

transferred the ownership to a newly formed Corporation and on

the next day filed a civil rights action in the U.S. District Court

attacking the constitutionality of the Ohio Public Nuisance

Statutes (which required review by a three judge federal court).

¥ Amicus Curiae James J. Clancy was also counsel of Record for

Clarence F. Murphy in his Petition for Writ of Mandamus in In Re

Murphy, U.S. Supreme Court Ne. 98-1442, October Term 1998.

Oo heen TA ES ne ee

= ere

On the date the action ae filed, the se Pleas

Court in Lima Ohio still h jurisdicti

fr the ith of saeienn vel eid hetions the Bingo

notice of appeal and motions for attorneys’ fees, etc.

In the two Huffman cases which were before this Court,

Huffman made a determined effort to focus the Court’s attention

on “Subject Matter Jurisdiction” which, according to this

Court’s prior precedents was and is always to be the first order

of business (see Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 [March 4, 1998]) and properly belonged in the

Ohio State Court System. This tactic was absolutely essential

to the prosecutor’s success, so that he could get a definitive

appellate ruling on the “closure” procedure by the Ohio

Supreme Court in this Huffman “test case” (which ruling would

also be available as “precedent” in other State Public Nuisance

Abatement cases which were then being developed using the

civil abatement process, and the Time and Motion Study and

Film Continuity Study as real evidence for the prosecution, and

the potential of an award of attorney’s fees to cover the cost of

abatement and closure of the Ohio Moral Public Nuisance).

Iii (B) Abdication of this Court’s Primary Duty re

Jurisdiction in Huffman— Ohio’s Concern re Moral

Depravity, an Important State Interest under the

10™ and 11™ Amendments.

Unfortunately, this Court avoided answering the “subject

matter jurisdiction” question which was squarely raised in the

(original) Petition for Leave of Court to File a Petition for Writ

of Mandamus after Solicitor General Robert Bork informed the

Court that the “Jurisdictional Statement” on the mandatory

appeal had been filed in the interim and that the “jurisdiction”

question “could” (not “would”) be addressed | in sg case en

a |:

In 1973, the National need for a decision upholding the

subject matter jurisdiction of a state court on important state

matters such as the abatement of moral public nuisances

pursuant to Chapter 3767 of the Ohio Revised Codes and the

10™ and 11™ Amendments was abundantly clear. The “moral

depravity” which then was being exhibited by the escalating

pornography industry and porn industry films, such as the film

“Deep Throat”, (which “glorified” sodomy per o.s. [oral

sodomy]) were appearing as the regular fare at the Cinema I

Theater in Lima, Ohio and on motion picture screens in each of

the 50 States. The federal courts were wrongfully being

employed by the porno industry to interfere with the 10™ and

11™ Amendment efforts of law enforcement to produce real

evidence of such hard-core films m the state courtrooms using

the search warrant process and the subpoena duces tecum

process. See, for example, Hicks v. Miranda, 422 U.S. 322

(1975) as an example of the intrusive litigation faced by law

enforcement.

In May of 1973, the depravity that files like “Deep

Throat” represented in its graphic depictions of “oral sodomy”

(o.s.) was uniformly recognized as being contrary to the

“Natural Law” and Judaeo Christian moral standards, and

acknowledged as such by an overwhelming majority of the legal

profession. 23 years earlier (1950), Professor Rollin M. Perkins,

now Connell Professor of Law Emeritus, U.C.L.A. Professor

Emeritus, University of Hastings College of Law had instructed

Amicus Curiae herein (as a first year law student in Prof.

Perkins’ criminal law class at U.C.L.A.), and later published in

his definitive text on the Criminal Law, that the Common Law

in the United States with respect to this subject (oral sodomy)

and “public morals” was clearly defined and well documented. *

¥ See text of Perkins on Criminal Law (at pages 465-466), the

Foundation Law Press, 3° Ed., (first published in 1955), which reads in

part:

¥: The ancient city of Sodom, reputedly destroyed because

eee BEST AVAIL

Il (C) The Prosecuting Attorney’s Interests Versus

This Court’s Interests in Huffman.

In both cases, Huffman asked that the U.S. District

Court Order be vacated and that the case be remanded to the

Chio Judicial System (so that a final appellate decision could be

achieved).

The “Questions Presented” at pages 5-9 and the

“Statement of Facts” at pages 9-28 of the Petition in No. 72-

1613 Misc. was purposely comprehensive * and tailored to the

Prosecutor’s special needs so that anyone in the appellate chain

who later undertook a study of those documents would

immediately recognize the jurisdictional issue being raised and

the need for an issuance of a Rule Nisi re jurisdiction.

This Court was thinking of the Federal Judiciary’s own

National needs, and was not (primarily) interested in the

practical aspects of the Public Nuisance Abatement case in

relation to the State of Ohio.

_ At Oral Argument, Justice Stewart asked if Ohio would—

be satisfied if the Younger Rule in criminal cases were extended

to civil proceedings. Prosecutor Huffman answered “No”, in

that, under this Court’s own precedents, it must first address the

question of “subject matter jurisdiction”— i.e., whether the case

plots sy neon om Heatran ting arn er

‘sodomy’ is derived. a mith such

nature.’** 4 Bl.Comm. *215. ” (Our Emphasis.)

“ — See, in particular, at “Appendix C”, pages C-7 through C-10, the

pleading by reference of the time/motion studies of the films named, at

paragraph 7(j) and 10(c) of the Complaint to abate the Cinema I Theater

as a public nuisance.

BLE COPY

404i.

was it before the agua! meesrep Sys mr ey a

ha for i

Ohio hellets Ruling by 08 Qhio SuntemeCaa and the U.S.

District Court had interfered with the 11™ Amendment subject

matter jurisdiction of the State of Ohio Judicial System, as to an

important State Interest.

Amicus Curiae Clancy recalls that, during oral argument,

with knowledge of what was happening in “society” (in the “real

world”, the State Courts were being ham-strung by “technical”

procedural decisions in their attempts to introduce the “prints”

of hard-core pornographic films like “Deep Throat” in evidence

before the State Courts on the merits) he stated, as his opinion,

that the federal courts’ ruling in the Huffman case was

underwriting “cocksucking and whore mongering”— language

never before used by Amicus Curiae in his professional career,

or in conversation. Amicus Curiae had determined that he

would make the statement if such a statement became necessary.

It was necessary, but proved to be ineffective. A majority of the

Court was determined to extend the Younger Rule to civil

cases, and would say or do no more.

Unfortunately, the fractured nature of the Court in 1975

prevented the Justices from coming together on the

11™ Amendment issue. Instead of remanding the case to the

Ohio Judicial System for further proceedings, the majority of

ee eee Gosy be adedecanins the bacheicticneal

que! a_techni nse_and formulated

“Huflman Abstention Doctrine” (as a proper response

pursuant to the rudimentary rule of law that this Court had

jurisdiction to determine jurisdiction). Proof of the correctness

of this “jurisdictional” analysis can be found in the last paragraph

of the Court’s Opinion in Huffman v. Pursue, Ltd., supra,

reading:

“ We therefore think that this case is appropriate

for remand so that the District Court may consider

~ -15-

whether irreparable injury can be shown in light of

“Without a Stitch,” yng r rear ymin aie

such a nature that the District Court may assume

jurisdiction under an exception to the policy against

judicial interfer with r i

of this kind. The judgment of the District Court is

vacated and the cause is remanded for further

proceedings consistent with this opinion” (My

emphasis. )

inion fail rd the fact that the real issue before

h was “which of the two courts had subject

jurisdiction” at an 11™ Amendment violation was at risk.

iil (D) The Battle was Won, but the “War” was Lost.

This Court Can, and must Correct That Defect.

That Huffman had prevailed on his appeal was no great

victory. The “battle” was won, but the entire war against such

obscene hard-core pornography was lost. Huffman

acknowledged that reality by filing a Petition for Rehearing,

which was summarily denied. The case was not remanded back

to the Ohio Appellate Courts for their consideration, as

peri dao soph hres fi a

Partie Tat. the Plaintiff in the Federal District Doli cabin

to litigate further and disappeared. /

Amicus Curiae respectfully submits that, in view of the

above history, the Huffman Abstention Doctrine as it is

presently being administered is wrong-headed. It was

formulated as a jurisdictional rule to separate Article 3, §2

# See Appendix C to this Amicus Curiae Brief, being a

contemporary historical account recently prepared by Amicus Curiae,

writing of the disaster which resulted from the inability to obtain a

resolution of the “closure” issue.

3 ti.

jurisdiction from 11™ Amendment jurisdiction, and should

have been applied, as such, by the U.S. District Court.

However, during the past >7 years this Court has never come

together and admitted that background fact in any of the many

opinions on the Younger - Huffman Abstention cases.

This Court can and should correct that defect in this case

upon the facts set forth in this Amicus Curiae Brief by ordering

U.S. District Judge Myron H. Thompson to vacate his judgment

in the trial court for lack of subject matter jurisdiction under the

11™ Amendment, the Huffman Abstention Doctrine and its

progeny: Middlesex Ethics Comm. v. Garden State Bar Assn.,

457 U.S. 423 (1982), Migra v. Warren City School Dist. Bd.

of Ed., 465 U.S. 75 (1984). University of Tennessee v. Elliott,

478 U.S. 788 at 799 (1986), and Plough, supra; and under the

Rooker-Feldman Abstention Dectrine, the Res Judicata

Doctrine and the Stare Decisis Doctrine of this Court.

ARGUMENT

In his opinion, U.S. District Judge Myron H. Thompson

erroneously assumed that the Younger Abstention Doctrine

was not applicable because a case involving the Statute was not

pending in the State Court. See Summit Medical Associates,

984 F.Supp. 1404 at 1432-1433. Amicus contends that Judge

Thompson’s assumption is fatal to his judgment for the

Plaintiffs. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 at

14-17 (1987) at fn. 9 on page 16:

abstention, even if there are m ing sta

proceedings in which the question could be raised. See

Railroad Comm’n of Texas v. Pullman Co., 312 U.S.

496, 85 LEd.2d 971, 61 S.Ct. 643 (1941).” (My

emphasis.)

ayy i

This is “such a case”. The cause herein involves an “as applied”

constitutional claim. The Trial Court’s “referral of questions”

to the Alabama Supreme Court and that Court’s refusal to reply

makes the Federal Court’s Opinion “advisory” and satisfies the

requirement of Pennzoil Co. v. Texaco, Inc., supra.

Plaintiffs cannot reinterpret Ex Parte Young, supra, or

use it to overrule Younger, supra, because Ex Parte Young was

“factored” into Justice Hugo Black’s majority opinion in

Younger. The Federal District Court is bound by Younger and

Huffman, supra, and is required to make the special

jurisdictional findings which Younger requires. See Huffman,

420 U.S. at 611-613. That jurisdictional burden was on the

Federal Plaintiff who had to plead and prove his right to be in

the Federal Court.

The Younger Abstention Doctrine is controlling even

where there is no state case pending at the time of filing the ~

federal action where, as here, the State Court has not had an

Opportunity to interpret the State Statute, and such an

interpretation can “save” the Statute- the so-called Watson v.

Buck, supra, exception which is referred to in Justice Black’s

opinion in Younger v. Harris, 401 U.S. 37 at 45-46 and 49.

In his analysis, Judge Thompson did not consider the

Younger - Huffman Abstention Doctrines as an integral past

of the 11°" Amendment challenge. See Summit Medical

Associates, supra, 984 F.Supp at 1419:

“TV. ATTORNEY GENERAL DEFENDANTS’

JURISDICTIONAL CHALLENGES

“

¥ For the sake of clarity, and to ensure that it fully

and properly resolves each of the attorney general

defendants’ challenges, the court will address them

To densbve Gils indek, Uivomnn ibadthtestiiinete

plaintiffs enjoy standing to bring their various claims, as

well as whether any of these claims has been rendered

moot, and hence non-justiciable, in light of the

defendants’ semi 0 ene nog ma

The U.S. District Judge’s analysis of the Alabama Attorney

General’s Jurisdictional challenges which appears thereafter at

pages 1420-1439 reads:

“A.

“B.

11™ Amendment, 984 F.Supp. 1404 at 1420-

1425.

Article I] Case or Controversy requirements,

1425-1432.

1. Standing, 1425-1430.

2. Mootness, 1430-1432.

Abstention Doctrines, 1432-1439.

1. Younger Abstention, 1432-1434.

2. Equity Principles, 1434-1436.

3. Pullman Abstention, 1436-1439.”

As can be seen from the above outline, the Younger Abstention

Doctrine, which should be analyzed at “Point A” on page 1420

(at the very beginning) because it and the Huffman Abstention

Doctrine are squarely on point and controlling, appears, as an

afterthought, as one of the General Abstention Doctrines to be

considered as a mere matter of Equity.

CONTENTIONS OF AMICUS CURIAE JAMES J.

CLANCY.

Younger v. Harris, supra (1971), was a 5-4 decision.

The majority opinion, which was written by Justice Hugo Black,

clearly rejected the type of interference which was employed by

the Federal Court in this case. Although Justice Black was an

absolutist on the 15* Amendment, he was a stronger supporter

of “State’s Rights” under the 11™ Amendment, which is

reflected in his Younger opinion, which involved a prosecution

involving free speech. His “Younger” opinion (the Younger

Abstention Doctrine) reconciled the principles expressed in

5 cases: Ex Parte Young, 209 U.S. 123 (1908): Younger at 45;

Dombrowski v. Pfister, 380 U.S. 479 (1965): Younger at 48:

Watson v. Buck, 313 U.S. 387 (1941): Younger at 46, 49, 53;

Fenner v. Boykin, 271 U.S. 240 (1926): Younger at 45-46;

Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281 (1970):

Younger at 40. The Younger Abstention Doctrine is firmly

grounded upon the Sovereign right of each state under the

10™ and 11™ Amendment to have its important state interests

(both criminal and civil) tried and decided by the State Judiciary,

which has the absolute right to “interpret” the statute and

“assist” the State Legislature in its effort to write constitutional

legislation, where possible, see Watson v. Buck, supra.

Summit’s race to the courtroom is fatal to its cause. By

filing its Complaint in July, two weeks before the Statutes

became effective (on August 1°? and 12™, 1997), it is unable to

establish that the U.S. eeeee nee Bas POE SEES eer

not effective. See, also, Hicks v. Miranda, 422 US. 332

~ 20 -

(1975) which would have been available to the Alabamz

Attorney General had he elected to use it (i.e., by filing 2

declaratory judgment action in the State Court alleging all of ihe

issues raised by Summit and moving to dismiss the Federal

action on the grounds that he was not acting as a “rogue” and,

under the 117 Amendment, the first interpretive decision of

the Statute must be by the Alabama Supreme Court after the

first trial under the Statute except where the Younger special

findings of fact exist).

CONCLUSION

In sum, the State of Alabama has the right of a sovereign

state, under the 11™ Amendment: (1) to enact a statute which

criminalizes “Infanticide” and to outlaw the inhuman practice of

partial birth abortion in the State of Alabama; (2) to have that

“Infanticide” criminal statute and the partial birth abortion

proscription interpreted by the Alabama Supreme Court and

given a constitutional interpretation, if possible, under Watson

y. Buck, supra; (3) to rely upon the Doctrine of Separation of

Powers which mandates that a state statute must be “saved”, if

possible, by the State Supreme Court, rather than struck by the

federal courts (which cannot “interpret”a state statute); and

(4) to answer any constitutional challenge in the State Court

without being liable for attorney fees (compare 42 U.S.C.

§1988); where the Dombrowski, supra, exception is not

available because the statute is not unconstitutional in every

sentence, clause, etc., nor is the Alabama Attorney General’s

conduct in the nature of that which is required for Dombrowski

to be operational in the face of a Younger Abstention Doctrine

challenge.

Dated: February 2, 2000

APPENDIX A

a CORRESPONDENCE BETWEEN AMICUS CURIAE

. AND COUNSEL OF RECORD FOR PETITIONERS AND

RESPONDENTS.

(Reference: Motion for Leave to File an

Amicus Curiae Brief, etc., . Page 1, line 3,

Page 4, line 10.)

eth, enna tam tienen! sett en week Paginas att

Sots ete mentee

A-1

The Law Office Of James J. Clancy

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352

(818) 352-2069

FAX (818) 352-6549

January 28, 2000

Jay Alan Sekulow Transmitted by Fax (letter only)

Alabama Deputy Attorney General (202) 337-3167 and by

1000 Thomas Jefferson St., N.W., Suite 609 Federal Express

Washington, D.C. 20007

Re: Amicus Curiae Consent Request: Bill Pryor, in his

official capacity as Attorney General for the State of

Alabama, etc., et al. v. Summit Medical Associates,

P.C; et al. Petition for Writ of Certiorari in the U.S.

Supreme Court, No. 99-1041.

Dear Mr. Sekulow;

Pursuant to Rule 37(2)(a) of the U.S. Supreme Court

Rules, request is hereby made for your consent to the filing of

a brief Amicus Curiae by my client, Clarence Murphy, in

support of neither party in the above cause.

Clarence Murphy contends that the Huffman -

Younger Abstention Doctrine is controlling and that a Writ of

Certiorari must be granted on the grounds that the Federal

Court lacks subject matter jurisdiction under the

11™ Amendment and the Huffman - Younger Abstention

Doctrine.

The Question which has been proposed is as follows:

Whether the Huffman - Younger Abstention|

Doctrine, involving important state interests,

expressed by this Court in Huffman v. Pursue

Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct.

1200 (1975), reh. den, 421 U.S. 971, 44

L.Ed.2d 463, 95 S.Ct. 1969 and Younger v.

Harris, 401 U.S. 37,27 L.Ed.2d 669, 91 S.Ct.

746 (1971), and their progeny: _Middlesex

Ethics Comm. v. Garden State Bar Assn., 457

U.S. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515

(1982), Migra v. Warren City School Dist. Bd.

of Ed., 465 U.S. 75, 79 L.Ed.2d 56, 104 S.Ct.

892 (1984) and University of Tennessee vy.

Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106

S.Ct. 3220 (1986); and by the 8™ Circuit

progeny: Plough v. West Des Moines |

Community School District, 70 F.3d 512 (CA

8™ 1995); is based upon both 10™ and

11™ Amendment principles and is, th ‘ore.}

“jurisdictional”; that is, whether its function is to |

resolve a conflict involving what appears to be |

“concurrent federal jurisdiction” by determining

from the facts pleaded and before the trial,

whether the federal court should have federal

jurisdiction under Article 3, §2 (and Ex Parte

Young, 209 U.S. 123, 52 L.Ed. 714, 28 S.Ct.

441 [1908]), or the state court should have

exclusive jurisdiction under thef

}11™ Amendment (i.e., the federal action must]

i be dismissed) ? |

Rassnensessessse eases sone sss sess ssp npsESSVESLSS SS gee

Thearguments which Amicus Curiae Clarence Murphy

will make in support of the above question are those set forth in

the Application for Leave of Court to File a Petition to

A-3

Intervene Pursuant to F.R.C.P. 24(a)(2), and Petition for

Writ of Mandamus, Pursuant to 28 U.S.C. §1651(a) in

Excess of Applicable Page Limit (113 pages) in In _ Re

Murphy, U.S.S.C.T. Misc. No. A-612, transmitted to the U.S.

Supreme Court on January 23, 1999 and filed with the U.S.

Supreme Court on March 10, 1999 as In Re Clarence Murphy,

No. 98-1442 (30 pages).

A copy of the Petition in Jn Re Clarence Murphy,

No. 98-1442 (30 pages) and the oversized Petition submitted

to the Court by Motion (and denied) is concurrently being

transmitted to you by Federal Express on this date (Friday,

January 28™).

Sincerely yours;

James J. Clancy

Attorney for Clarence Murphy.

JIC/cjc

Encls.: In Re Clarence Murphy, Application, etc., and Petition

to Intervene, etc., U.S.S.C.T. No. A-612

t by F 1 Expr

In Re Clarence Murphy, Petition to Intervene, etc.,

U.S.S.C.T. No. 98-1442

(sent by Federal Express).

A-4

A-5

The Law Office Of James J. Clancy

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352

(818) 352-2069

FAX (818) 352-6549

January 28, 2000

Simon Heller, Esq. Transmitted by Fax (letter only)

Center for Reproductive Laws and Policy (212) 514-5538

120 Wall Street, 18™ Floor and by Federal Express

New York, New York 10005

Re: Amicus Curiae Consent Request: Bill Pryor, in his

official capacity as Attorney General for the State of

Alabama, etc., et al. v. Summit Medical Associates

P.C.; et al. Petition for Writ of Certiorari in the U_S.

Supreme Court, No. 99-1041.

Dear Mr. Heller;

Pursuant to Rule 37(2)(a) of the U.S. Supreme Court

Rules, request is hereby made for your consent to the filing of

a brief Amicus Curiae by my client, Clarence Murphy, in

support of neither party in the above cause.

Clarence Murphy contends that the Huffman -

Younger Abstention Doctrine is controlling and that a Writ of

Certiorari must be granted on the grounds that the Federal

Court lacks subject matter jurisdiction under the

11™ Amendment and the Huffman - Younger Abstention

Doctrine.

The Question which has been proposed is as follows:

A-6

Whether the Huffman - Younger Abstention

Doctrine, involving important state interests,

expressed by this Court in Huffman v. Pursue

Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct.

1200 (1975), reh. den., 421 U.S. 971, 44

L.Ed.2d 463, 95 S.Ct. 1969 and Younger vy.

Harris, 401 U.S. 37, 27 L.Ed.2d 669, 91 S.Ct.

746 (1971), and their progeny: _Middlesex

Ethics Comm. v. Garden State Bar Assn., 457

U.S. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515

(1982), Migra v. Warren City School Dist. Bd.

of Ed., 465 U.S. 75, 79 L.Ed.2d 56, 104 S.Ct.

892 (1984) and University of Tennessee vy.

Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106

S.Ct. 3220 (1986); and by the 8™ Circuit

progeny: Plough v. West Des Moines

Community School District, 70 F.3d 512 (CA]

8™ 1995); is based upon both 10™ and

11™ Amendment principles and is, therefore

“Surisdictional”: that is, whether its function is to

resolve a conflict involving what appears to be]

“concurrent federal jurisdiction” by determining

from the facts pleaded and before the trial

whether the federal court should have federal

jurisdiction under Article 3, §2 (and Ex Parte

Young, 209 U.S. 123, 52 L.Ed. 714, 28 S.Ct.}

441 [1908]), or the state court should have]

exclusive jurisdiction under the}

11™ Amendment (.e., the federal action must}

The arguments whichAmicus Curiae Clarence Murphy

will make in support of the above question are those set forth in

the Application for Leave of Court to File a Petition to

A-7

Intervene Pursuant to F.R.C.P. 24(a)(2), and Petition for

Writ of Mandamus, Pursuant to 28 U.S.C. §1651(a) in

Excess of Applicable Page Limit (113 pages) in In_Re

Murphy, U.S.S.C.T. Misc. No. A-612, transmitted to the U.S.

Supreme Court on January 23, 1999 and filed with the U.S.

Supreme Court on March 10, 1999 as In Re Clarence Murphy,

No. 98-1442 (30 pages).

A copy of the Petition in In Re Clarence Murphy,

No. 98-1442 (30 pages) and the oversized Petition submitted

to the Court by Motion (and denied) is concurrently being

transmitted to you by Federal Express on this date (Friday,

January 28™).

Sincerely yours,

James J. Clancy

Attorney for Clarence Murphy.

JIC/cjc

Encls.: In Re Clarence Murphy, Application, etc., and Petition

to Intervene, etc., U.S.S.C.T. No. A-612

(sent by Federal Express).

In Re Clarence Murphy, Petition to Intervene, etc.,

U.S.S.C.T. No. 98-1442

(sent by Federal Express).

A-8

A-9

The Law Office Of James J. Clancy

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352

(818) 352-2069

FAX (818) 352-6549

January 31, 2000

Jay Alan Sekulow Transmitted by Fax

Alabama Deputy Attorney General (202) 337-3167

1000 Thomas Jefferson St., N.W., Suite 609

Washington, D.C. 20007

Re: Amendment to Amicus Curiae Consent Request fax

letter, dated January 28, 2000, re: Bill Pryor, in his

Official capacity as Attorn eneral for the State o

Alabama, etc., et al. vy. Summit Medical Associates,

P.C; et al. Petition for Writ of Certiorari in the U.S.

Supreme Court, No. 99-1041.

Dear Mr. Sekulow;

Please amend my Fax letter sent to you, dated January

28, 2000, to include a request that consent be given to Attorney

James J. Clancy, as a member of the U.S. Supreme Court Bar,

to file a Brief Amicus Curiae in this cause for the legal reasons

set forth in the Petitions, U.S. Supreme Court No. 98-1442,

transmitted to your Office by Federal Express on Friday, —

January 28, 2000.

~ Sincerely yours;

James J. Clancy

A-10

A-11

The Law Office Of James J. Clancy

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352

(818) 352-2069

FAX (818) 352-6549

January 31, 2000

Simon Heller, Esq. Transmitted by Fax

Center for Reproductive Laws and Policy (212) 514-5538

120 Wall Street, 18™ Floor

New York, New York 10005

Re: Amendment to Amicus Curiae Consent Request fax

letter, dated January 28, 2000, re: Bill Pryor, in his

Official capacity as Attorney General for the State o

Alabama, etc., et al. v. Summit Medical Associates,

P.C; et al. Petition for Writ of Certiorari in the U.S.

Supreme Court, No. 99-1041.

Dear Mr. Heller;

Please amend my Fax letter sent to you, dated January

28, 2000, to include a request that consent be given to Attorney

James J. Clancy, as a member of the U.S. Supreme Court Bar,

io file a Brief Amicus Curiae in this cause for the legal reasons

set forth in the Petitions, U.S. Supreme Court No. 98-1442,

transmitted to your Office by Federal Express on Friday,

January 28, 2000.

Sincerely yours;

James J. Clancy

JIC/cjc

APPENDIX B

CLARENCE F. MURPHY V. PLANNED PARENTHOOD

OF GREATER IOWA, INC., ET AL.,

SCOTT COUNTY DISTRICT COURT NO. 94716:

FIRST AMENDED PETITION FOR A DECLARATORY

JUDGMENT AND AN INJUNCTION TO PREVENT

PLANNED PARENTHOOD’S USE OF LAND FOR THE

OBNOXIOUS AND OFFENSIVE TRADE OF ABORTION

AND INFANTICIDE IN VIOLATION OF:

(1) PETITIONER MURPHY’S SUCCESSFUL

STATUTORY PROTEST PURSUANT TO BETTENDORF

ZONING CODE §24.2 AND §24.4; AND (2) PARAGRAPH

3 OF THE RECIPROCAL RESTRICTIVE AND

PROTECTIVE COVENANTS THAT RUN WITH BOTH

PETITIONER MURPHY’S LOT 3 OF BLOCK 4 AND

THE ADJOINING LAND OF PLANNED PARENTHOOD

TO THE SOUTH, WHICH LIES BETWEEN BLOCK 4

AND BLOCK 1 AND WITHIN THE QUAD CITY

TECHNOLOGICAL CENTER, A PLANNED UNIT

DEVELOPMENT (P.U.D. ZONE).

(Reference: Brief Amicus Curiae of James J.

CG a cn Page 4, line 27.)

B-1

IN THE IOWA DISTRICT COURT

FOR SCOTT COUNTY

) Case No. 94716

Clarence F. Murphy, )

Plaintiff, ) First Amended Petition for a

vs.

Planned Parenthood of

Greater Iowa, Inc.

Defendant,

and

The City of Bettendorf,

lowa

Defendant,

and

) Declaratory Judgment and

) an Injunction to Prevent

) Planned Parenthood’s Use of

) Land for the Obnoxious and

) Offensive Trade of Abortion

) and Infanticide in Violation

) Of: (1) Petitioner Murphy’s

) Successful Statutory Protest

) Pursuant to Bettendorf

) Zoning Code §24.2 and

) §24.4; and (2) Paragraph 3

) of the Reciprocal Restrictive

) and Protective Covenants

) That Ren with Both

) Petitioner Murphy’s Lot 3 of

Middle Road Investors, Inc) Block 4 and the Adjoining

Defendant.

) Land of Planned Parenthood

) to the South, Which Lies

Between Block 4 and Block 1

and Within the Quad City

Technological Center, a

Planned Unit Development

(P.U.D. Zene).

COMES NOW Piaintiff, Clarence F. Murphy, and for

his Petition for a Declaratory Judgment and Injunction, states as

follows:

1. Petitioner Clarence F. Murphy and his wife Hwa

Cha Murphy (hereinafter called “Petitioner Murphy” and

“Murphy”) are citizens of Bettendorf, lowa, who reside at 2835

Willow Drive, Bettendorf, lowa. Murphy and his wife are the

owners of two twelve plex apartments known as 2655 Tech

Drive, Bettendorf (a.k.a. Lot 3. of Block 4) and 2750 Tech

Drive, Bettendorf (a.k.a Lot 2 of Block 2) of the Quad City

Technological Center, a planned unit development and hold

title to such properties in the name of Murpak Enterprises,

Inc., a Delaware Corporation which is wholly owned by

Murphy and his wife Hwa Cha.. See Exhibit pages C-3 and

C-4, infra.

» a Lot 3 of Block 4 was conveyed by Middle Road

Investors, Inc. (hereinafter called “Defendant Middle Road” and

“Middle Road”) to Petitioner Murphy by Warranty Deed dated

January 30, 1976, which was filed with the Office of Scott

County Recorder on February 18, 1976 as Document 2524-76

(after the Iowa Supreme Court decision in Kuntz [infra, 1975]

and Harris, {infra, 1975]). Defendant Middle Road had

acquired its ownership by Warranty Deed from the City of

Bettendorf (hereinafter called “Defendant Bettendorf’ and

“Bettendorf’) on the same date (February 18, 1976) in partial

performance of a contract dated November 7, 1972 and

recorded in the Office of Scott County Recorder as Document

1947-73. The abstract for the Plat of Lot 3 of Block 4, which

is attached as Exhibit A and incorporated by reference herein,

contains the following certification at page A-3, last paragraph:

™ NOW THEREFORE, Middle Road Investors,

Inc., and the City of Bettendorf, lowa, hereby declare

that the real property described in the Surveyor’s

Certificate is and shall be held, transferred, sold,

conveyed and occupied subject to the Restrictive and

Protective Covenants heretofore filed on Apmil 11, 1973,

B-3

as Document #5134-73 with the platting of Block i of

Quad City Technological Center shall remain in effect

and apply to Lot 3 of Block 4 as platted herein.

* Dated this 20% day of January, 1976.

MIDDLE ROAD INVESTORS, INC.

By Robert D. Danico, President

By C.J. Munson, Secretary

CITY OF BETTENDORF, IOWA

By William C. Glynn, Mayor

By Margaret W. Lake, Deputy City Clerk”

3. Lot 2 of Block 2 was conveyed to Petitioner

Murphy and his wife by Ed Speer Construction, Inc. by

Warranty Deed dated February 25, 1994 and filed on March 4,

1994 in the Office of Scott County Recorder as Document

No. 7001-94 in full performance on that real estate contract

dated June 1, 1979 and recorded on January 23, 1980 in the

Office of the Scott County Recorder as Document No. 1155-80.

The abstract for the Plot of Lot 2 of Block 2 which is attached

as Exhibit B and incorporated by reference herein shows that

the Defendant Bettendorf was an owner with Middle Road of

Block 2 and contains the following certification at page B-3, last

paragraph:

- NOW THEREFORE, Middle Road Investors,

Inc., and the City of Bettendorf, Iowa, hereby declare

that the real property described in the Surveyor’s

Certificate is and shall be held, transferred, sold,

conveyed and occupied subject to the Restrictive and

Protective Covenants heretofore filed on April 11, 1973,

as Document #5134-73 with the platting of Block 1 of

Quad City Technological Center shall remain in effect

and apply to Lot 2 as platted herein. In addition thereto,

each lot owner of Lots in said Block 2 shall share the

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common driveways into said Block 2 from Tech Drive

and P.U.D. Drive.

a Dated this 1" day of July, 1975.

MIDDLE ROAD INVESTORS, INC.

By Robert D. Danico, President

(Corporate Seal) By C.J. Munson, Secretary

CITY OF BETTENDORF, IOWA

By William C. Glynn, Mayor

(Seal of City of Bettendorf, Iowa)

By James W. Strieck, Clerk”

4. Defendant Planned Parenthood of Greater Iowa,

Inc. (hereinafter called “Defendant Planned Parenthood” and

“Planned Parenthood”) is the present owner of a parcel of land

within the metes and bounds of the Planned Unit Development

(hereinafter “P.U.D. Zone”) known as Quad City Technological

Center to the City of Bettendorf, lying between Block | and

Block 4, the Lot having been purchased by Defendant Planned

Parenthood on April 14, 1997. The northern boundary of the

Planned Parenthood property abuts and forms the southern

boundary of Lot 1, Lot 2 and Lot 3 of Block 4. The southern

boundary of the Planned Parenthood property abuts and forms

the northern boundary of Block 1, and the northern boundary of

the right of way know as Happy Joe Drive, as shown on the two

maps which are attached to this Petition as Exhibit C and

pleaded by incorporation herein. At the time of the platting of

Lot 3 of Block 4, it was the expressed intention of Defendant

Bettendorf and Defendant Middle Road, as the developers of the

Quad City Technological Center to the City of Bettendorf, to

place the same “restrictive” and “protective” covenants that

were attached to Block 1 on the future development and platting

of the P.U.D. Zoned Planned Parenthood property, which was

owned in fee simple by Defendant Bettendorf and Defendant

Middle Road, so that the “benefits” and “restrictions” on all of

B-S

the said Lots in said land development were “reciprocal”, as

expressed and accomplished in the recording of the platting of

Blocks | through 6 as a whole, see Exhibit D to this Petition

(infra, at page D-3, the first paragraph and page D-6, paragraph

11) and pleaded by incorporation herein. Petitioner avers that

the terms of the restrictive and protective covenants were

extended by the developer, Defendant Middle Road, for a finite

period of 10 years to the year 2003 to provide time to complete

the platting of the plan as a whole, so that upon the completion

of that land development, each of the lots within the P.U_D.

Zone would have and enjoy the same benefits and burdens.

Road, who owned the said“P.U.D. Zoned” Planned Parenthood

land in fee simple in 1975.

6. The City of Bettendorf is named as a Defendant

because of its participation with Middle Road in the

draftsmanship and approval of Paragraphs 3 and 11 of the

Restrictive (burden) and Protective (benefit) Covenants as noted

above and in that part of the Abstract for the Final Plat of

Block 1 (see Exhibit A-2 and A-3 and Exhibit D to this

Petition at pages D-1 through D-11) which reads in part as

follows with respect to Paragraphs 3 and 11:

B-6

“RESTRICTIVE AND PROTECTIVE COVENANTS

¥ MIDDLE ROAD INVESTORS, INC., an lowa

Corporation, hereby establish and declare the following

restrictive and protective covenants to be applicable to

the following described real estate located in Scott

County, Iowa, to-wit: All lots in Blocks | through 6 of

The Planned Unit Development known as Quad City

Technological Research Center, to the City of

Bettendorf, Iowa, which plat is recorded as Document

No. 5134-73 in the office of the Recorder of Scott

County, Iowa:

" 1. No building... .

“

- 3. No obnoxious or offensive trade shall be

carried on upon any lot nor shall anything be done

thereon which may be or become an annoyance or

nuisance to the other lot owners in said addition.

“

‘ 11. These restrictions shall be in force from

the date of the Owner’s Certificate to which it is an

exhibit until January 1, 1993 or until such later date to

which the same may be extended as hereinafter

provided, and shall run with and be binding upon all lots

in said addition, and every part thereof and shall be

appurtenant to and for the benefit of all said lot owners.

ten year anniversary of said date unless a written

instrument signed and acknowledged by the owners of

a majority of all the lots in Quad City Technological

Center shall prior to such date or anniversary be

B-7

recorded with the Recorder of Scott County, Iowa,

abrogating or modifying the same in whole or in part to

the extent therein set forth. In determining the majority

of said lot owners, each lot shall be entitled to one vote

to be cast according to the will of a majority in interest

of any co-owners having interest therein whether such

majority is represented by a majority of the undivided

interests in an entire lot or ownership of the greater

portion of a subdivided lot. A contract purchaser or life

tenant of the legal title shall be deemed the owner. In all

other respects, ownership shall refer to record owner

ship of legal title.” (Our emphasis.)

r 11. Invalidity, abandonment or waiver of any

one or more of the same restrictions shall in no wise

affect any of the other restrictions, which shall remain in

full force and effect.

7 12. In the event any person who may at any

time own or occupy any of the numbered lots, or part

thereof, in said Addition should violate or threaten to

violate any of these restrictions, said Middle Road

Investors, Ivc. its successors and assigns, and the

owners from time to time of any of the numbered lots in

said Quad City Technological Center shall have the right

to proceed in any court of law or equity, by injunction or

otherwise, to enforce performance and restrain violation,

or pursue any other remedy to which it or they may be

entitled and shall have the right to collect from the party

or parties violating or threatening to violate the same,

either jointly or severally, all damages, costs, expenses

and counsel fees resulting from the violation thereof, or

incurred in, or in connection with, said proceedings.

“Dated at Bettendorf, Iowa, this 3“ day of April, 1973.

Middle Road Investors, Inc.

By: Robert D. Danico, President

(Corporate Seal) By: C.J. Munson, Secretary”

7. Thereafter, Middle Road did not plat Block 5

and 6 as planned. Instead, on June 16, 1976 (5 month after the

conveyance of Lot 3, Block 4 to Murphy), Defendant Middle

Road, without Notice to Murphy, conveyed the Planned

Parenthood property by a Warranty Deed to “Robert Versman

and Rose Versman, husband and wife, as tenants in common,

and to their heirs and assigns.” The legal document conveying

the real estate, contains an asterisk and the typed instruction

reading “subject to restrictive covenants recorded as document

5134-73 S.C. lowa Rec. Off.” which is initialed by Robert D

Danico as President and C.J. Munson, as Secretary of Middle

Road, Inc. (see Document 10830-76 at Exhibit E to this

Petition).

8. 10 years later, on December 23, 1986, Robert H

Versman and Rose Versman conveyed an undivided 1/12

interest in the Planned Parenthood property to each of the

following six persons (a total of 50%):

Kenneth J. Versman

Linda Jean Versman

Stuart J. Heller

Judith Lee Heller

Frederick J. Glassman

Frances Belle Glassman

(See Document 25349-86, recorded on December 31, 1986, at

Exhibit F to this Petition which contains the typed instruction

reading: “Subject to: |. Easements, covenants and restrictions

of record.”)

9% On December 24, 1986, Robert H. Versman and

Rose Versman conveyed an undivided 1/12 interest in the

B-9

Planned Parenthood property to each of the following six

persons (a total of 50%):

Kenneth J. Versman

Linda Jean Versman

Stuart J. Heller

Judith Lee Heller

Frederick J. Glassman

Frances Belle Glassman

(See Document 1735-87, recorded on January 28, 1987 at

Exhibit G to this Petition which contains the typed instruction

reading: “Subject To: Easements, covenants and restrictions

of record” and “This Warranty Deed confirms the deed executed

by the Grantors on December 23, 1986, . . . recorded in the

Scott County Recorder’s office as Document No. 25349-86 and

ratifies and approves the conveyance of a total of one-half of the

real property legally described in Exhibit A hereto”).

10. On January 3, 1987, Robert H. Versman and

Rose Versman conveyed an undivided 1/12 interest in the

Planned Parenthood property to each of the following six

persons (a total of 50%):

Kenneth J. Versman

Linda Jean Versman

Stuart J. Heller

Judith Lee Heller

Frederick J. Glassman

Frances Belle Glassman

(See Document 1736-87 recorded on January 28, 1987 at

Exhibit H to this Petition which contains the typed instruction

reading: “Subject to: Easements, covenants and restrictions of

record” and “This Warranty Deed confirms the deed executed

by the Grantors on Jan. 2, 1987 recorded in the Scott County

Recorders office as Document 165-87 and ratifies and approves

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the conveyance of a total of one-half of the real property legally

described in Exhibit A hereto.””)

11. On April 14, 1997, Kenneth J. Versman and

Linda Jean Versman, Husband and Wife, Stuart J. Heller and

Judith Lee Heller, Husband and Wife, and Frederick J. Glassman

and Frances Belle Glassman, Husband and Wife, conveyed by

Warranty Deed the Planned Parenthood property to Planned

Parenthood of Greater lowa, Inc. or Planned Parenthood of

Greater lowa Foundation, Inc. (See Document 09482-97, dated

April 14, 1997 and recorded April 24, 1997 at Exhibit I to this

Petition (last in order).

PETITIONER MURPHY’S CONTENTIONS

12. An actual controversy has arisen between

Petitioner Murphy and Defendants, relating to the legal rights

and duties of Defendant Planned Parenthood and Defendant

Bettendorf, in respect to said Lots as those rights and duties are

affected by Paragraph 3 and Paragraph 11 of the above stated

Restrictive (burden) and Protective (benefit) Covenants.

Petitioner Murphy contends that Paragraph 11 must be

construed against its co-author Defendant Bettendorf and read

to extend the Restrictive and Protective Covenants

automatically for an additional, finite ten-year period on January

1, 1993 to January 1, 2003 without reference to that language

“January |, 1993”. It would appear that such “finite” language

was adopted to keep the first additional 10-year period

extension in compliance with the requirements of Bettendorf

Code §614.24 which was enacted in 1966 and was interpreted

by the lowa Supreme Court in Compiano v. Kuntz, 226N.W.2d

245 (lowa 1975) and Presbytery of Southeast Iowa v. Harris,

226 N.W.2d 232, 237-38, 242 (lowa 1975). Because the

“finite” 10-year extension period was accomplished during the

first 21-year period and was a recorded document, it met the

B-11

requirements of Bettendorf Code §614.24, which then read

“unless the claimant shall, by himself, or by his attorney or

agent . . . . Shall file a verified claim with the recorder of the

county wherein such réal estate is located within said twenty-

one year period”,

13. Defendant Bettendorfis a Home Rule City in the

State of lowa which is empowered to enact zoning ordinances

(i.e., P.U.D. and C-5 Zones) and amendments (zone changes) on

real property in the City of Bettendorf, acting by and through

the Bettendorf City Council, and to act as “parens patria” on

behalf of Petitioner Murphy and other Bettendorf residents

(citizens) in defense of their property rights under such zoning

ordinances when such zoning rights of the City of Bettendorf are

challenged by third parties in a Federal District Court in a

Federal Civil Rights action pursuant to 42 U.S.C. §1983.

14, Such zoning ordinances and zone changes are

accomplished by a legislative act by the City Council to

eccomplish the same. Under the Doctrine of Separation of

Powers, the general rule is that the Courts cannot write or

rewrite the zoning laws, nor force the legislative body to enact

or amend a zoning ordinance. An amendment which is adopted

in disregard of the protest of property owners who are acting

pursuant to a valid “protest” ordinance, is void. The City of

Bettendorf is a necessary party in that a Federal Judgment of

U.S. District Court Judge Charles R. Wolle in a Federal Civil

Rights action brought by Defendant Planned Parenthood,

purports to rezone the Planned Parenthood property (P.U.D.

Zone to C-5 Zone). Under the Doctrine of Separation of

Powers, the general rule is that a federal court has no power

(lack of subject matter jurisdiction) to rezone real property in

the City of Bettendorf, which function (zoning), under the U.S.

Supreme Court decision in Huffman v. Pursue, Ltd., infra.,

state matter” which is protected by the 11° Amendment.

B-12

15. Defendant Planned Parenthood wishes to

construct a clinic in Bettendorf, lowa which will cater to the

“abortion” trade. The Bettendorf Zoning Ordinance allows

abortion clinics on property in a C-5 zone. Had Planned

Parenthood purchased a C-5 Zoned property, it would not have

had a zoning problem. Instead, it chose to purchase a property

in a P.U_D. Zone (which was surrounded by and within 200 feet

of three relatively new residential apartment complexes on

Lots 1, 2, and 3 of Block 4 which were benefitted by a

Bettendorf “Protest” Ordinance) and submitted an application

for a Zone Change by ordinance to C-S.

16. The adjacent apartment owners (see Exhibit C-

Murphy and Jecklin) and Larry Whitty, the owner of Lot 1,

Block 1 objected and made a successful statutory protest

(20% Rule) against the zone change (being within 200 feet of

the Planned Parenthood property), pursuant to Bettendorf

Zoning Code §24.2 and §24.4, which precluded the Bettendorf

City Council from adopting a C-5 Zoning Ordinance unless the

City Council voted 6-1 for the zone change. The City Council

on March 16, 1996, yoted 5-1 not to adopt the C-5 Zoning

ordinance.

17. Zoning Rights are “Vested Rights” under lowa

Law and the lowa Constitution. The 8* Circuit Court of

Appeals has so held in its decision in Nemmers v. City of

Dubuque, Iowa, 716 F.2d 1194 (1983). Under Iowa case law,

a City Council’s action on“a zone change request is broadly

defined to be a “judicial function” which can be appeaied by

Writ of certiorari to the lowa District Courts, see Montgomery

v. Bremer County Board of Supervisors, 299 N.W.2d 687 at

692 (lowa Supreme Court 1980). If such an appeal is not filed

within 30 days, the City Council’s actions become final under

lowa law, in which case, under the 11* Amendment and

Huffman v. Pursue, Lid, 420 U.S. 592 at 606, fn. 18 and 19

and the progeny of Huffman (University of Tennessee v.

Elliot, 470 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct. 3220 [1986],

B-13

and v, 7 465 U.S.

75, 70 L.Ed.2d 56, 104 S.Ct. 892 [1984], and Plough v. West

i istrict, 70 F.3d 512 at 516-

517 [CA 8* 1995]), i il’ i-judici

a udicata under Federal law, because the

federal courts are required to give this Res Judicata Rule the

18. = On March 21, 1997, one year and two days after

the City Council’s denial of the zoning change, Defendant

Planned Parenthood filed a Civil Rights Action under 42 U.S.C.

§1983 in the U.S. District Court (pleading what is, in essence,

an appeal from the Bettendorf City Council’s quasi-judicial

Order denying the C-5 zoning Application). Planned

Parenthood did 2 s ndants the adja apart

19. The City of Bettendorf filed a Motion for a

Partial Summary Judgment, pursuant to the 11% Amendment

and the Res Judicata Doctrine. U.S. District Judge Charles R.

Wolle (egregiously) denied the city’s Res Judicata Plea. Upon

the conclusion of the Federal trial, Judge Wolle entered a

judgment which purported to rezone the property to C-5

Zoning.

20. Petitioner Murphy timely moved to intervene

(immediately after the City of Bettendorf announced its decision

net to act as “parens patria” and pursue an appeal from the

Judgment of U.S. District Court Judge Wolle), and within the

appeal time period, for the purpose of appealing U.S. District

Court Judge Wolle’s Judgment on 11% Amendment (lack of

subject matter) jurisdictional and other grounds, including his

denial of Bettendorf’s Summary Judgement Motion on a plea of

Res Judicata.

21. U.S. District Court Judge Wolle ruled (cursorily

B-14

and egregiously) on Petitioner Murphy's

(1) that the Intervention Motion was “untimely”, (2) refused to

address the merits of Petitioner's right to mandatory

intervention, and the 11° Amendment Jurisdictional and Res

Judicata issues raised by Murphy at the time of Murphy's

Intervention Motion, and (3) further refused to set such

matters for oral argument.

22. In the Court of Appeals below, Petitioner

Murphy sought judicial relief from Judge Wolle’s arrogation of

Federal Judicial Power in two separate forms: by the filing of a

direct appeal and by the filing of a verified complaint in an

original Petition for Writ of Mandamus in the 8" Circuit Court

of Appeals, pursuant to 28 U.S.C, §1651(a).

23. Ina highly unorthodox ruling, the Court of

Appeals treated the Appellant’s Opening Brief on the direct

appeal and the original petition for a prerogative writ of ~

mandamus as though they had been consolidated, and in a brief

single order, denied the Petition for Writ of Mandamus without

an opinion and summarily affirmed Judge Wolle’s Judgment,

also without opinion. The Court of Appeals thereafter also

denied a Petition for Rehearing and Suggestion for Rehearing

En Banc in each of the two cases. The U.S. Supreme Court

refused to issue its discretionary Writ of Certiorari to review

such erroneous rulings.

24. Petitioner Murphy contends that the

11* Amendment and the Doctrines of Res Judicata and Stare

Decisis control this litigation and that both of the Federal Courts

were in error in their refusal to address the issue of “lack of

subject matter jurisdiction” of the Federal Courts under the

11° Amendment claim. See Steel Co, v. Citizens for a Better

Environment, 523 U.S. 83, 140 L.Ed.2d 210, 118 $.Ct. 1003

(March 4, 1998), at Poimt III (duty to address the questions of

subject matter jurisdiction as the first order of business, and on

its own motion, if the parties to the lawsuit do not bring the

B-15

matter to the trial court’s attention); Puerto Rico Aqueduct and

Sewer Authority v, Metcalf and Eddy, Inc., 121 L.Ed.2d 605

at 610, 506 U.S 139, 113 S.Ct. 684 (1993) (creating a new

Rule of Court re the issue “lack of subject matter jurisdiction”),

Wisconsin Dept. of Correction v. Schacht,524U.S.__, 141

L.Ed.2d 364 at 375-378, 118 S.Ct. _, No. 97-461

(June 22, 1998) (Associate Justice Kennedy’s concurring

opinion re the issue of “lack of subject matter jurisdiction”). See

Kerr v. U.S. District Court, 426 U.S. 394, 48 L.Ed.2d 725, 96

S.Ct. 2119 (1976); Will y. U.S., 389 U.S 90, 19 L_Ed.2d 305,

88 S.Ct. 269 (1967); and Supreme Court Practice, 7 Ed.,

Stern, Gressman Shapiro, Geller, at page 495.

25. Plaintiff Murphy further contends: (1) that he is

entitled to a Declaratory Judgment in the District Court of lowa

which holds that, under lowa Law, the Bettendorf City

Council’s action on the above zone change is a “judicial”

function which became final when Defendant Planned

Parenthood did not perfect an appeal to the Iowa District Court

by Writ of Certiorari within 30 days of the date on which the

City Council acted; (2) that the record shows that the adjacent

apartment owners made a successful statutory protest which

precluded the Bettendorf City Council from adopting a C-5

Zoning Ordinance unless the City Council voted 6-1 for the

Zone Change, and that the City Council on March 19, 1996

voted 5-1 not to adopt the C-5 Zoning Ordinance; (3) that

pursuant to such successful protest, the adjacent apartment

owners acquired “vested rights” in the City Council’s Final

Order (judgment); and (4) that the City Council's final order

which denied the C-5 Zoning Application was and is a final

judgment which, under lowa law and the Constitutional

Doctrine of Res Judicata was and is entitled to recognition by

the U.S. District Court, the 8™ Circuit Court of Appeals and the

U.S. Supreme Court.

26. Murphy believes and avers that the Bettendorf

City Attorney, Greg Jaeger, will acknowledge on behalf of the

B-16

Defendant Bettendorf: (1) that the adjacent property owners

did make a successful protest under the Bettendorf “Protest”

Ordinance, which reads as follows.

“24.4 In case the commission does not approve the

proposal or in case of a protest against such change

signed by twenty (20) percent or more of one or more of

the following groups:

(a) Property owners of the lots included in

such proposed change.

(b) — Property owners immediately adjacent in

the rear thereof extending the depth of

one lot or not to exceed two hundred

(200) feet therefrom (excluding street

right-of-way).

. (c) Property owners immediately adjacent in

the front thereof extending the depth of

one lot or not to exceed two (200) feet

therefrom (excluding street mnght-of-

way).

” (d) Property owners immediately adjacent to

any and all sides (including the front and

rear sides) of the proposed change

extending one lot or not to exceed two

hundred (200) feet therefrom (excluding

street right-of-way).

% Such amendment shall not become effective

except by the favorable vote of at least three-fourths

(3/4) of all the members of council.”;

(2) that the “Protest” Ordinance is constitutionally valid and

was validly applied; and (3) that the Doctrine of Res Judicata

B-17

as pleaded by Defendant Bettendorf in the Federal Civil Rights

lawsuit did, in fact, require that the Civil Rights action which

was filed in the U.S, District Court be dismissed for lack of

subject matter jurisdiction under the 11 Amendment and

supra.

27. Murphy further avers that, upon the successful

termination of the Declaratory Judgment proceedings before this

Court, Plaintiff intends to file a Declaratory Judgment Action in

the U.S. District Court to have Judge Wolle’s Judgment vacated

on the ground that the Federal District Court lacked Article 3,

§2 subject matter jurisdiction under the 11° Amendment, and

the U.S. Supreme Court’s Huffman Abstention Doctrine,

Abstention Doctrine, Res Judicata

Doctrine, and the Stare Decisis Doctrine, and for other reasons

which have been made of record in the U.S. District Court, the

U.S. Court of Appeals for the 8" Circuit, and the US. Supreme

Court; and if necessary, will petition the U.S. Supreme Court for

a Writ of Certiorari on the 11% Amendment issue and

Substantial Federal Questions which have been presented to the

U.S. Supreme Court by the conflict in the determination of this

issue by the State of lowa and Federal Judiciary. See, in this

regard, the copy of the pleadings on file in the U.S. Court of

Appeals for the 8* Circuit and in the U.S. Supreme Court which

are being lodged concurrently with the Clerk of this Court by

Petitioner Murphy.

28. No other adequate remedy other than that herein

prayed for exists by which the rights of the parties hereto may

be determined: in that (1) U.S. District Court Judge Wolle has

egregiously (willfully, knowingly and wrongfully) denied

Petitioner Murphy’s lawful right to intervene in the Federal Civil

Rights action of Defendant Planned Parenthood, as an

indispensable party; in order that he might appeal the

(egregiously) erroneous judgment of Judge Wolle which created

the opportunity for Planned Parenthood to engage in a course

of conduct which constitutes a breach of Bettendorf Zoning

————

rt ,

B-18

Code §24.2 and §24.4 and Paragraph 3 of the Restrictive and

Protective Covenants; (2) the Court of Appeals for the

8" Circuit refused to entertain Petitioner Murphy’s appeal from

Judge Wolle’s erroneous judgment and a Petition for Wnt of

Mandate; and (3) the U.S. Supreme Court refused to exercise

its discretionary review of the Federal Court record by Wnit of

Certiorari. Because Murphy was wrongfully denied the right to

intervene in the Federal Civil Rights lawsuit, he is not bound by

Judge Wolle’s Judgment in the Civil Rights action under the

Doctrine of Res Judicata;, see International Union v. Scofield

382 U.S. 205, 15 L.Ed.2d 272 (1965).

29. | Murphy avers and contends that the Restrictive

and Protective Covenants which were established by the

Defendant Middle Road Investors, Inc. on April 3, 1973 at the

time of the platting of Block 1 (see Petition at Exhibit D-1

through D-11) and re-established and confirmed by the

Defendant Middle Road Investors, Inc. on January 20, 1976 as

the owner and proprietor of Lot 3 of Block 4, as set forth at

Exhibit A-2 and A-3 to this Petition, run with the land and were

fully operational and binding on all parties during the period

January 20, 1976 through January 1, 1993; and on that date

were automatically extended for an additional ten year period

from January 1, 1993 through January 1, 2003 by the provision

of paragraph 1 1 ofthe Restrictive and Protective Covenants (see

Exhibit D-6 and D-7) and were and are presently operative and

binding on all parties, including the Defendant Planned

Parenthood of Greater lowa, Inc. from and after April 14, 1997,

when Planned Parenthood received title to such property by

Warranty Deed from Kenneth J. Versman, etc. (see Petition at

paragraph 11 on page 6 of the Petition and Document 09482-

97, dated April 14, 1997 and recorded April 24, 1997 at

Exhibit I to this Petition [last in order]).

30. Defendant Planned Parenthood’s projected use

of such property in the face of the successful protest of the

Bettendorf residents adjoining such property under Bettendorf

B-19

“Protest” Zoning Code §24.2 and §24.4 constitutes an

immediate and continuing breach of Paragraph 3 of the

Restrictive and Protective Covenants which requires that “No

obnoxious or offensive trade shall be carried on upon any lot nor

shall anything be done thereon which may be, or become, an

annoyance or nuisance to the other lot owners in said addition.”

(Qur emphasis.)

31. Petitioner has no adequate remedy at law to

compensate for the harm to the reputation and contemporary

community standards of the City of Bettendorf, Iowa which

flows from the knowledge of the general public that land in

Bettendorf, Iowa, a Home Rule City, which is adjacent and

within 200 feet of an existing residential neighborhood is being

used for the conduct of early abortions, late term abortions, and

partial birth abortions also known and referred to as

“infanticide”. Under these facts and circumstances, and upon

this record, Defendant Planned Parenthood must be held to be

engaged in a trade whica is “obnoxious” and “offensive” as a

matter of law under the terms of paragraph 3 of the Restrictive

and Protective Covenants (see Exhibit D-S to this Petition); and

is both a public and private nuisance under the English

Common Law, the early American Common Law, the

Statutes of the State of Iowa and the “Protest” Zoning Code,

§24.2 and §24.4 of the City of Bettendorf. The Defendant’s

continuous breach of said Covenant and maintenance of a public

and private nuisance will result in irreparable harm to the value

of Petitioner’s land and the pecuniary amount of such damage,

which is impossible to ascertain, warrants the issuance of a

preliminary injunction.

1. Whether Bettendorf Zoning Code §24.2

B-20

and §24.4 are constitutional on their face?

2. Whether the order of the Bettendorf Ci Council

which denied the Planned Parenthood Zone Change Aj ‘ication

from P.U.D. to C-5 zoning by a 5-1 vote is Res Judicata under

Iowa law because Planned Parenthood did not time appeal

such order to the Iowa District Court by Wnt of Cert rari?

3. Whether that part of the record which sows that

three of the adjacent property owners (Clarence Murphy

[Petitioner], owner of Lot 3, Block 4, Lois Jecklin, owner of

Lots 1 and 2 of Block 4, and Larry Whitty, owner cf Lot 1,

Block 1) made a successful statutory protest under Bettendorf

Zoning Code §24.2 and §24.4, mandates a ruling by tis Court

that the zoning on the Planned Parenthood property under lowa

law is “P.U.D.” and remains as “P.U.D.”?

CONCLUSION

The complex propositions of lowa Zoning law which are

framed by this Petition provide irrefutable, positive proof:

(1) that legal issues involving the zoning laws of a state are

“important state matters” which are protected by the

11” Amendment and the Huffman Abstention Doctrine, and

(2) that a U.S. District Judge lacks “subject matter jurisdiction”

of such issues which, according to the laws of probability, will

be decided differently for each state based upon the Judicial

Policy of the state which is affected. The U.S. Supreme Court

has held in the Huffman cases that, pursuant to the Res

Judicata Doctrine, the U.S. District Court must extend to such

State Court judgments the interpretation given by the State

Court Judiciary (the equivalent of the “Full Faith and Credit”

provision of the Federal Constitution which governs the

responsibility of the Judiciary of State Courts to acknowledge

the judgments of the Judiciary of other State Courts).

B-21

WHEREFORE, Petitioner prays that judgment be

entered against the Defendants:

1. For a Declaration, pursuant to Iowa Law, that

the Bettendorf City Council’s action on Planned Parenthood’s

Zone Change Application from PUD to C-5 Zoning is a judicial

function which became final when Defendant Planned

Parenthood did not perfect an appeal to the Iowa District Court

by Writ of Certiorari within 30 days of the date on which the

City Council acted on such Application; that the record shows

that the “Protest” Ordinance is constitutional and was applied

in a constitutional manner; that pursuant to said successful

protest, the adjacent property owners acquired “vested rights”

in the City Council’s Final Order (judgment); that the City

Council’s denial of the C-5 Zoning Application, under the

constitutional Doctrine of Res Judicata is a Final Judgment and

that the Zoning on the Planned Parenthood property under Iowa

law is “P.U.D.” as enacted by the Bettendorf City Council.

2. That during the pendency of this action, a

preliminary injunction issue to enjoin and restrain the Defendant

Planned Parenthood from the acts and conduct aforesaid.

3. That the Defendant Planned Parenthood be

restrained and enjoined from violating and continuing to violate

and breach Bettendorf “Protest” Ordinance §24.2 and §24.4

and Paragraph 3 of the Protective Covenants that runs with

Lot 3 of Block 4 during the time the same is to remain in force

and effect;

4, For costs, and attorneys fees and other relief as

provided above; and

5. For such other and further relief as the Court

B-22

may deem proper.

DATED: January ___, 2000

Respectfully submitted,

Clarence J. Murphy, Plaintiff

VE TI

State of California) Declaration under Penalty of

} SS: Perjury, Pursuant To California

Los AngelesCounty ) Code of Civil Procedure §2015.5

I am the attorney for Plaintiff Clarence J. Murphy and as

such attorney, the facts as pleaded in the above Petition are

more fully known to me. I therefore make this Declaration and

declare under penalty of perjury under the laws of California that

the forgoing First Amended Petition for a Declaratory

Judgment and an Injunction is true and correct.

Dated: January 31, 2000

Location: 9055 La Tuna Canyon Road

La Tuna Canyon, California 91352-2221

fs/

James J. Clancy, California Bar No. 26946

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352-2221

(818) 352-2069 Fax: (818) 352-6549

Attorney for Petitioner Clarence J. Murphy

CONTINUATION OF ABSTRACT OF TITLE

Lot 3 of Block 4 of Quad City Technological Cen-

ter, @ Planned Unit Development to the City of

Bettendorf, Iowa.

From December 26, 1975 at S$ o'clock P.M. to and

including February 4, 1976 at $ o'clock P.M.

Mo. 50.

MIDDLE ROAD INVESTORS, INC.,

and CITY OF BETTENOORF, IOWA,

FO et Pet eet et ee

Lead

Dated: Jan. 20, 1976.

Ack'ds Jan. 20, 1976.

THE PUBLIC, Filed: Feb. 4, 1976.

Rec'd: Doc. #1873-76,

- SURVEYOR'S CERTIFICATE:

I, Dale B. Christensen, hereby certify thet I an a duly inplotnees

Land Surveyor under the laws of the State of Iowa and that I have sur-

veyed a tract of land to be named Lot 3 of Block 4 of Quad City

Technological Center ko the City of Bettendorf, Scott County, Iowa,’

more particularly Gescribed as follows:

Commencing at the Northeast corner of the Bortheast. Quarter

Of said Section 21; thence due South, alone the Bast line

of the Northeast Quarter of said Section 2, a Gistance of .

744.06 feet to a point on the Wortherly 8.0.W. of P.U.D,

Drives thence South 71° 25° 13° west, the Hortherly

R.0.W. Of F.0.D. Drive, a distance of 291.00 feet to @ point

of curvature; thenos Morthwesterly along a 15.00 foot radizs

peceve Mortheasterly a distance of 22.31 feet to a ;

bi bs | curvature on the Northeasterly 8.0.¥, of

Tech Drive; thence Horthwesterly along a 476.00 foot radics

' CUEVE concave Southwesterly and a the Wortheaster

R-O.W. Of fech Drive, a distance of 88.54 feet to a i

of thence 36° West

North &long the Borth-

easterly R.0.8. of Tech Drive, a distance of 108.31 feat;

thenoe 5S* 598° 24° West a distance of 52.08 feet ts

® point os the Southwesterly 8.L.". ‘of Tech Drive also being

EXHIBIT A-i

tha voint of beoinning; thence South 34° O01 36° Ease,

asony the Sowthwescerly 8.0.W. of Tech Orive, a distance

of 26.31 feets thence South 44° $6' 49° Kest a distance

of 351.98 feet; thence Worth $4° 19° 09° West a distance

of 127.67 feet; thence Worth 44° 56° 49° East a Alstance

of 386,31 feet to a point on the Southwesterly 8.0.4, of

Tech Drive; €hence Southeasterly along a 594,00 foot

radius curve concave Southwesterly and along the South-

westerly R.0.W.- of Tech Drive, a distance of 196.90 feet

to the point of beginning containing 1.077 acres.

Dated this 14th day of January, 1976 in Davenport, Scott County,

Iowa.

(Surveyor's Seal) Dale B. Christensen Date: 1/14/76

Ta. Reg. #5493

Gollehon, Schemmer 6 Assoc., Inc.

DEDICATION OF OWNERS:

This is to certify that the attached Plat of Lot 3 of Block 4

of Quad City Techmological Center, 4 Planned Unit Development in and

for the City of Bettendorf, Iowa is hereby made with the free consent

of Middle Road Investors, Inc., and the City of Bettendorf, Towa, as

owners and proprietors of the rea) estate described upon the attached

and foregoing plat and the Surveyors Certificate attached thereto and

certifies that said Plat is made in accordance with the desire of said

proprietors and said proprietors do hereby Sedicate to the use of the

public any and all rights it may have in and to 411 streets as shown

on said plat. c

Front yard bailding setback lines are hereby established as shown

on the Plat, between which lines and the property lises. of the street,

there shall be erected or paintained no baildings or structures.

A perpetual easement is hereby granted to any local public

utility, cable f.¥. or nonicipal department, their successors and

assigne, within the area shown On the plat and marked “Easezent" to

install, lay construct, renew, operate, maintain and remove conduits,

cables, pipes, poles and wires (underground), with all necessary

braces, guys, anchors and other equipment for'the purpose of serving

fanaa EXHIBIT A-2

the subdivision and other property with the telephone, electric and

948, cable T.V., sewer and water service as a part of the respective

utdlity Systems: also is granted, subject to the prior rights of the

public therein, the slyht tu use the strevts and lots with under-

ground service wires to serve adjacent lots and street lights, the

right to cut down and remove or trim and keep trimmed any trees or

shrubs that interfere or threaten to interfere with any of the eaid

public utility equipment, and the right is hereby granted ‘to enter

“pon the lots. at .all times for all of the purposes aforesaid. WNo

Permanent buildings or trees shall be placed on said ares as shown

On the plat and marked "Zasement", but same tay be used for gardens,

shrubs, landscaping and other purposes that do not th-n or ‘Apter

: later fere with the aforesaid uses or the rights hea {a . ranted. ib

‘NOW THEREFORE, Middle Rosa thvestors, Ine .4 aa thy ¢ Gityor

- -*

Bettendorf, Towa, hereby. dectare thac thy y Fea property described

in the Surveyor's Certi fioate is ane Saait ‘be nerd, transferred, sold

conveyed an occupied subject to the Restrictir “and Protective -—

Covenants hexetofore filed on: April oe 1973, te ; Document #5134-,4 ;

with ‘the Platting of Blocs » of Quad city Ceahaatephans hasan shal),

“ Femain in effect’ and apply to Lot 3 of Block 4 as platted t isin, '

Dated this : 20th day of January, 1976. ;

MIDDLE ROAD INVESTORS, INC.

LR ts By Robert D. Danico

oe President

By C. J. Munsca

Secretary

CITY OF BETTENDORY, IOWA

i . By William C. Glynn

Mayor

By Margaret W. Lake

Depaty City Clerk

EXHIBIT A-3

. STATE OF IOWA : ‘ans

COUNTY OF SCOTT )

On this 20th day of January, 1976, before ma, the undersigned,

a Notary Public in and for the State of Jowa, personally sppeared

Robert D. Danico and C. J. Munson, to mea personally known who being

by me duly sworn, did say that they are the President and Secretary

respectively of said corporation and that the seal affixed ttereto

is the seal of said corporation, that said instrument was signed and

sealed on behalf ot said corporativn by authority of ite Board of

Directors and that the said Robert D. Danico and C. 3. Hunsoa, as

“such officers acknowledged the execution of said instrument to be

the voluntary act and deed of said corporation by it and by thea

voluntarily executed. ,

(Notarial Seal) * Judith L. Moore .

' Notary Public in the State of Iowa

STATE OF TOM}

COUNTY OF SCOTT } vane

On this 20 day of Janvary, 1976, before me the undersigned, a

Notaxy Public in and for said County, personally appeared Willian Cc.

Glynn and Maryaret ¥. Lake, each to me personally known, who being ©

by me duly ever, 4id say that they are the Mayor and Deputy City

Clerk, respectively, of said City of Bettendorf, a Municipal Corpor~

ation, of Scott County ia the State of Towa; that the seal affixed to

the said instrument is the seal of said corporation by authority of

ts City Council; and the said William C, Glynn and Margaret ¥.

Lake each acknowledged the execution of said instrument to be the

*voluntary act and deed of said corporation,by each of them and by

it voluntarily executed.

(Wotarial Seal) Russell Eliis

Notary Public in the State of Iowa

EXHIBIT A-4

CERTIPICATE OF CO TREASTRE

I, Ken ¥, Gaines, Treasurer of Scott County, Iowa, hereby cer-

tify that the land laid out into a Planned Unit Development covere!

by the Plat hereto attached, known and designated as Lot 3 of Blocx

4 of Quad City Technological Center to the City of Bettendorf, Tova,

is free from taxes payable to Scott County, Towa, except for special

assessments for sewer and paving.

Witness my hand this 20th day of January, 1976. :

Ken W. Gaines, Treasurer

rtle Werts

7 Deputy

CERTIFICATE OF ATTORNEY AT LAW:

I, John 8. Gosma, Attorney at Law, a member of the firm of

Doerr, Rehling and Lindbury, do hereby certify that I have exanined

the abstract of title to the land embraced in the attached plat and

Gescribed in the accompanying certificate of Dale E. Christensen,

registered land surveyor, and from such examination find‘that the

City of Bettendorf, Towa, has good fee simple title to said real es-

tate subject to e contract to Middle Road Investors, Inc., and that

said land is free fron encusbrances, except for sewer and paving

assessments,

Dated at Davenport, Iowa, this 20th day of January, 1976.

DOERR, REELING AND LINDBURG

By John 8. Gosma’

:_ , | EXHIBIT A-5

—

CERTIFICATE OF COUNTY RECORDER:

I, Richard FP. Hagen, Recorder of Scott County, Iowa, do hereby

certify that the title in fee to the land covered by the plat hereto

attached, known and designated as Lot 3 of Block 4 of Quad City Techno-

logical Center, a Planned Unit Development to the City of Bettendorf,

Towa, is in the City of Bettendorf, Iowa, and Middle Road Investors,

Inc., and that said title is free from encumbrances.

Witness my hand and seal of my office hereunto affixed this 20

_day of January, 1976. .

Richard ¥, Hagen

Recorder

CERTIFICATE OF CLERK OF DISTRICT COURT:

I, David B. Dahlin, Clerk of the District Court of the State of

Towa in and for Scott County, hereby certify that the land covered

by the annexed plat known and designated as Lot 3 of Block 4 of Quad

City Technological Center, a Planned Unit Development, to the City

of Bettendorf, Iowa, ia free from ail judgments, attachments,

mechanic's liens, or other liens, as appears by the records of my

. office.

Witness my hand and the official seal of my office, this 20 day

of January, 1976.

David #.° Dahlin

_ Clerk

By Marie 3. Lesburg

; Deputy

ACCEPTANCE BY CITY OF BETTENDORF, JON!

We, the undersigned, William C. Glynn, Mayor, and James Ww.

Strieck, City Clerk of the City of Bettendorf, Iowa, do hereby

certify that the following resolution was passed and adopted by

the City Council of the City of Bettendorf, Iowa, on the 20th day

of January, 1976, and duly epproved on the same day by the Mayor

of said City: :

RESOLUTION OF ACCEPTANCE

BY CITY OF BETTENDORF

Resolved by the City Council of the City of Bettendorf;

That the Final Plat of Lot 3 of Block 4, of Quad City

Technological Center, a Planned Unit Development to

the City of Bettendorf, Towa, as filed with the City Clerk

of said City by Middle Road Investors, Inc. and the City

of Bettendorf, Iowa be and the same is hereby roved

and accepted; and that the Mayor and City Clerk and

they are wget authorized and instructed to certify to the

adcption of this resolution upon said plat as required by

av.

‘ Witness our hands and the seal of the City of Bettendorf, Iowa,

impressed hereon, this 20th day of January, 1976.

William C. Glyna

Mayor of the City of Bettendorf, Iowa

* Saplan Glask f the City of

ty e ° ty o

Bettendorf, Iowa.

= iif --~=

“EXHIBIT A-7

No. Sl.

MIDDLE ROAD INVESTORS, IWC., ASSESSMENT WAIVER.

Dated: Jan. 20, 1976.

Ack'd: Jan. 20, 1976.

Filed: Feb. 4, 1976.

Rec'd: Doc. $¢1874-76.

CITY OF BETTENDORF, IOWA.

Recites that Middle Road Investors, Inc. has this dat. filed

with the Clerk of the City of Bettendorf, Iowa, a Plat for Lot 3 of

Block 4 of Quad City Technological Center, a Planned Unit Development

in the City of Bettendorf, Iowa.

Recites that it is agreed by Middle Road Investors, Inc. that

at such time as sidewalks or other conventional type of subdivision

improvements are needed, the City of Bettendorf, Iowa, shall install

said improvements and assess the cost of the same in the prescribed .

Manner against the property comprising said Lot 3 of Block 4 of Quad

City Technological Center in accordance with the local requirements

aoe eg pee seen TS

regarding special assesszents. q

Said Middle Road Investors, Inc., being the sole omer of Lot 3 {

of Block 4 of Quad City Technological Center, a Planned Unit Develop-.

ment to the City of Bettendorf, Iowa, hereby waives ail notices and

rights of protest to the ordering of said inproveneats and assessing | :

the cost thereof against the subdivided property even though the cost :

thereof may exceed the amount that can legally be assessed by the city 3

Of Bettendorf, Iowa, against the subdivided property and agree to be

responsible for such differences and agree to permit the assessment

of the entire cost of all of said improvements against the subdivided

property. This waiver shall become null and void st the time the

Original subdivision improvemants are completed and accepted by the City.

Bxecuted for Middle Road Investors, Inc. by Robert D. Danico,

President, and C. J. Mumson, Secretary, with corporate seal affixed.

-—— iii --— —» ~— EXHIBIT A-8

12/05/08 SUN 47:49 FA 319 992 7945 CHUCK SURPEY : @ors

No. $2.

.Thereé are no Judgments in the District Court of the State of

Towa in and for Scott County against City of Bettendorf, Iowa or

Hiddle Road Investors, Inc. during the period covered herein; and

there are no Mechanic's Liens, Encurbrances or Suits Pending affect-

ing the title to the real estate under exanination to vhich said

City or said corporation is party, except as shown herein.

COUNTY, STATE and

CITY OF BETTENDORP:

conse If fff -<-—

No. $3.

TAXES

1974 = Paid.

Block 4 Quad City fechnological Center:

waa oe feet-total ass 2

eet Assessment

$63,510. 84.

Banit Gever Assesment

426,348. square feet -Total Assessment.

$7,194.90. |

NO FURTHER SPECIAL ASSESSMENTS.

coome ULI ff{f -—

- JEXHIBIT 4°

12/05-99 SUN 27:20 FAN 316 232 7945 CHUCK MURPHY 2013

4 ?

CERTIFICATE

We, Vollertsen & Britt, ?.C., hereby certify that the foregoing

is a true and correct Continuation of Abstract of Title to the real

estate described in the caption thereof, from December 26, 1975 at

S o'clock P.M. to and including February 4, 1976 at $ o'clock P.M.

as shown by the records of Scott County, Iowa. :

We further certify that there are no Judgrents, Suits Pending,

Bankruptcy Proceedings, Notices of Tax Liens or Other Liens in the

District Court of the United States for the Southern District of .

Town, Davenport Division, affecting the title to the real estate un- © 4

dex examination during the pericd covered herein,

Dated at Davenport, Iowa, this ith day of February, 1976 at $ ;

o'clock P.M. : :

VOLLERTSEN & BRITT, P.C.

Attokneys an fostracters. 3

EXHIBIT A-/0

CONTINUATION OF ABSTRACT OF TITLE

Lot 3 of Block 4 of Quad City Technological ‘Center,

& Planned Unit Development to the City of Betten-

Gorf, Scott County, Iowa; from February 4, 197€ at

S o'clock P.M. to and including February 24, 1976

at 11130 o'clock A.M.

Mo. 54.

WARRANTY DEED.

Dated: Jan. 30, 1976.

Ack'd: Jan. 30, 1976.

THE CITY OF BETTENDORF, )

)

Filed: Feb. 18, 1976.

)

TOKA, @ minicipal corpor-

ation,

Cons.: $1.00 & O.V.Cc.

MIDDLE ROAD INVESTORS, INC.

Conveys real estate situated in Scott County, Iowa, and de-

scribed as follows: Lot 3 of Block 4 of Quad City Technological

Center, a Planned unit Development to the City of Bettendorf, Iowa.

Recites that this conveyance is executed in pertial perfor-

mance of a contract dated Novexber 7, 1972, ant recorded ne Docu-

ment #1947~73, records of the office of the Recorder of Scott County,

Towa. sista

Recites that the tien of special assessments for the subdivision

improvements mentioned in said contract are hereby released against

the above described real estate with the liens to remain against

the remaining property not yet conveyed. Also released against

said block.4 are the special assessments for Middle Road sidewalks

and Maplecrest’ Paving.

Recites that this conveyance is exempt from transfer tax.

/ EXHIBIT A-1i'

Exucuted for grantor cor:crat.sa Ly Wallian C. Glyna, Mayor,

and by James W. Strieck, City Clerk, with corp rate seal affixed.

In the certificate of acknowledgment it is certified that seid

parties under oath stated that they are the Mayor and City Clerk,

respectively, of grantor corporation, -hat the seal affixed is the

corporate seal of said corporation; that they executed foregoing

instrument as sech officers in behalf of said corporation with

authority of its Boa:d uf Directors as the voluntary act and deed

of said corporation.

coor VST om---

Wo. 55.

MIDDLE ROAD IMVESTORS, IWC., ) WARRANTY DEED.

)

) Dated: Jan. 30, 1976.

To ) Ack'd: Jan. 30, 1976.

) Piled: Feb. 18, 1976.

) Rec’d: Doc. #2524-76.

CLARENCE FP. MURPHY and HWA ) Cons.: $1.00 & 0.V.C.

CHA MURPHY, Husband and Wife, )

as joint tenants with full )

right of survivorship, and )

not as tenants ism common. )

Conveys real estete situated in Scott County, Iowa, and de-

scribed as follows: Lot 3 and Block 4 of Quad City Technological

Center a Planned Unit Development to the City of Bettendorf. Iowa

ExEcvCSA fox grantor corporation by Robert D. Danico, President,

and by C. J. Momson, Secretary, with corporate seal affixed.

In the certificate of acknowledgment it is certified that said

parties under oath stated that they are the President and Secretary,

respectively, of grantor corporation, that the seal affixed is the

corporate seal af ssid corporation; that they executed foregoing

instrument as seach officers in behalf of said eueyrentiue with

authority of its Board of Directors as the voluntary act and deed

of said corporation.

$26.95 Iowa Transfer Stamps affixed and cancelled.

cores Sffil1} ----- ‘

EXHIBIT A

12cAK ee SUN 27:22 FAX 318 32 7348 CHUCK MURPHY

w ~

No. 56.

HORTCAGE.

Dated: Feb. 20, 1976.

Ack'a: Feb. 20, 1976.

Filed: Feb. 24, 1976.

Rec'd: Doc, #2824-76.

Cons.: $180,000.00.

CLARENCE PF. MURPHY and

"WA CHA MURPHY, Husband

and Wife,

PIRST PEDERAL SAVINGS AND

LOAN ASSOCIATION OF MOLINE,

ILLINOIS.

ee ee ee ee ee ee ee ee ee

Mortgages real estate situated!in Scott County, Iowa, and de-

Scribed as follows: Lot number Three (3) in Block Number Four (4)

Quaa City Technological Center, situated in the City of Bettendor®.

Executed to cecure payment of the sum of $180,000.00, with

interest thereon, payabie in monthly installments of $1605.00 each,

commencing September 1, 1976, and due according to the terms of a

Promissory note of even Gate, herewith,

Récites that any transfer of real estate covered by this mort-

gage, OF any part thereof, shall Give mortgagee the right to declare

all indebtedness secured by this mortgage immediately due an4 payable,

w=" I/1///] ~---=-

EXHIBIT A-13

2/93 09 GUN 17:29 FAX 319 192 7948 CHUCK MiRPRY Zen

Ko. 57.

There are no Judgments in the District Court of the State of

Towa in@md for Scott County against City of Bettendorf, Iowa or

Middle Rozd Investors, Inc. during the period covereé herein, and none

against Clarence ¥. Murphy or Bwa Cha Murphy éuring the ten years

immediately preceding this date; and there are no Mechanic's Liens,

Encumbrances or Suits Pending affecting the title to the real estate

under examination to which either of said corporations or either of

said persons are party, except as shown herein.

anne= ANT --=0=

Bo. 58.

eee

TAXES

COUNTY, STATE AND

CITY OF BETTENDORF:

Includes other real estate)

1974 + 1st Installment Paid,

2nd Installment, Unpeid, $1644.51

NO PURTHER SPECIAL ASSESSMENTS.

nnme= HNN ~---~

EXHIBIT A#

veh-ee gtx A7:28 Fad ons 42 7348 CHCK NURPHY Qo23

CERTIFICATE

We, Vollertsen 6 Britt, P.C., hereby certify that the foregoing

is « true and correct Continuation of Abstract of Title to the real

estate described in the caption thereof, from February 4, 1976 at

5 o'clock P.m. to and including Pebruary 24, 1976 at 13:30 o'clock

A.M. a8 shown by the records of Scott County, Iowa.

We further certify that there are no Judgments, Suits Pending,

Bankruptcy Proceedings, Notices of Tax Liens or Other Liens in the

District Court of the United States for the Southern District of

Towa, Davenport Division, affecting the title to the reel estate

under examination during the ten years irmediately preceding this

date.

Dated at Davenport, Towa, this 24th day of February, 1976 at

11:30 o'clock a.m,

VOLLERTSEX & BRITT, P.C.

No. 40.

PLAT OF BLOCK 2 OF QUAD CITY

TECHNOLOGICAL CENTER, iNC.,A

PLANNED UNIT DEVELOPMENT TO

THE CITY OF BETTENDORF, IOWA.

Dated: July 1, 1975.

Ack'd: July 1, 1975.

Filed: July 18, 1975.

Rec'd: Doc. #11038-75.

MIDDLE ROAD INVESTORS, INC.

and CITY OF BETTENDORF, IOWA,

THE PUBLIC,

SURVEYOR'S CERTIFICATE;

I, Dale £. Christensen, hereby certify that I am a duly

licensed Professional engineer and Land Surveyor in and for the State

Of Iowa and that I have surveyed and prepared the attached plat,

er et ee ee ee et eee ee

which truly ana correctly represents the survey of a tract of land

to be named Block 2 of Quad City Technological Center, a Planned

Unit Development in and for the City of Bettendorf, Iowa, being a

Subdivision of the Northeast Quarter of Section 21, Township 78

North, Range 4 East of the Sth P.M. in Bettendorf, Scott County,

Towa, more particularly described as follows:

Commencing at the Wortheast corner of the Northeast Quarter

of said Section 21) thence Que South along the East line of

the Northeast Quarter of said Section 21, a distance of

798.92 feet to the point of beginning; thence continuing

due South a distance of 766.01 feet to a point on the.

Northerly ROW of. Middle Road; thence South 53° 46° 45° West

along the Northerly ROW of Middle Road a distance of 85.12

feet to a point of curvature; thence Westerly along a

15.00 foot radius curve concave Northerly, a distance of

23.32 feet; thence Rorthwesterly “es a 919.45 foot

radius curve concave Southwesterly being the Northerly

ROW of Commerce Drive, a distance of 313.21 feet; thence

Northerly along a 15.00 foot radius curve concave East-

erly, a distance of 22.72 feet; thence Wortheasterly along

& 558.75 foot radius curve concave Northwesterly, being

the my my te of Tech Drive, a distance of 193.38 feet;

rth along said Easterly ROW of Tech Drive a

Gistance of 181.26 feet to a point of curvature; thence

ae Toe along a 276.00 foot radius curve concave West-

erly & Gistance of 114.56 feet; thence Bortheasteri:

pax J & 15.00 foot radius curve concave Southeaster y a

tance of 22.31 feet to a epee BT

North 71° 25° 33° Bast, at a Southerly of P.U.D.

~ EXHIBIT B-/

Drive, a distance of 273.52 feet to the point of be-

ginning conteining 4.326 acres.

Dated this 3rd day of July, 1975 in Bettendorf, Scott County,

Iowa.

Dale £&. Christensen

Ta. Reg. $5493

(Surveyor's Seal) Gollehon, Schemmer & Associates, Inc.

DEDICATION OP OWNERS:

This is to certify that the attached Plat of Block 2 of Quad

City Technological Center, a Prennet United Development in and for

the City of Bettendorf, Iowa is hereby made with the free consent

of Middle Road Investors, Inc. and the City of Bettendorf, Iowa,

as owners and proprietors of the real estate described upon the

attached and foregoing plat and the Surveyors Certificate attached

thereto and certifies that said Plet is made in accordance with the

desire of said proprietors and said proprietors do hereby dedicate

to the use of the public any and all rights it may have in and to

@ll streets as shown on said Plat.

Front yard building setback lines are hereby established as

shown on the plat, between which lines and the property lines of

the street, there shall be erected or maintained no bud 1dings or

structures.

A perpetual easement is hereby granted to any local public

utility, cable T.V. or municipal department, their successors and

assigns, within the area shown on the plat and marked “Zasenent”® to

install, lay, construct, renew, operate, maintain and remove conduits,

cables, pipes, poles and-wires (underground), with all necessary

braces, guys, anchors and other equipment for the purpose of serving

the subdivision and other property with the telephone, electric

and gas, cable 7.¥., sewer and water service as a part of the

respective utility systems: also is granted, subject to the prior

rights of the public therein, the right to use the str: EXHIBIT B-2

with underground service wires to serve adjacent lots and street

Iights, the right to cut down and remove or trim and keep trirned

“ny trees or shrubs that interfere or threaten to interfere with

ny of the said public utility equipment, and the right is hereby

dvanted to enter upon the lots at all tires for all of the pu:poses

“Toresaid. _ No. permanent ~buLlaings—or—trees-shall-be-piaced-on said -

“rea as shown on the plat and marked “Eesement", but same may be

“ed for gardens, shrubs, landscaping an4 other Purposes that do

"ot then or later interfere with the aforesaid uses or the rights

herein granted.

NOW THEREFORE, Middle Road Investors, Inc., and the City of

Mettendoré, Iowa, hereby declare that the real property described

in the Surveyor's Certificate is and shall be held, transferred,

sold, conveyed and occupied subject to the Restrictive and Protective

Covenants heretofore filed on April 11, 1973 as Document 5134-73

With the Platting of Block 1 of Quad City Technoligical Center shall

remain in effect and apply to Block 2 as platted herein. In addi-

tion thereto, each lot owner of Lots -in said Block 2 shall share

the common driveways inte said Block 2 from Tech Drive and P.U.D.

Drive,

Dated this ist day of July, 1975.

MIDDLE ROAD INVESTORS, Inc.

: By: Robert D. Danico, President

(Corporate Seal) By: C. J. Munson, Secretary

CITY OF BETTENDORF, I0MA

° By: William C, Glyna, Mayor

{Seal of city or -

Bettendorf, Iowa) By: James W. Strieck, Clerk -

EXHIBIT B-3

STATE OF IOWA )

) 86>

iCOTT COUNTY )

On this lst day of July, A.D., 1975, before me, the undersigned,

a Notary Public in and for the State of Iowa, personally appeared

Robert D. Danico and C. J. Munson, to me personally known who being

by me duly sworn, did say that they are the President and Secretary

respectively of said corporation and that the seal affixed thereto

is the seal of said corporation, that said instrument was signed:

and sealed on behalf of said corporation by authority of its Board

of Directors and that the said Robert D. Danico and C. J. Munson,

as such officers acknowledged the execution of said instrwsent to

be the voluntary act and deed of said corporation by it and by thes

voluntarily executed.

Judith L. Moore

Motary Public in and for 6cott

(Notarial Seal) County, Iowa

STATE OF IOWA )

scorr cory }

On this let day of July, A.D., 1975, before me, the undersigned,

& Notary Public in and for said County, personally appeared Willian

C. Glynn and James W. Strick, each to me personally known, who

being by me duly sworn 4i4 say that they are the Mayor and City

Clerk, respectivély,; of said City of Bettendorf, a Municipal

Corporation, of Scott County in the State ot Towa; that the seal

affixed to the said instrument is the seal of said corporation by

authority of its City Councils and the said William C. Glynn aod

James W. Strick each acknowledged the execution of said instrument

to be the voluntary act and deed of said corporation, by each of

them and by it voluntarily executed.

Margaret W. Lake

Notary Public in end for Scott

(Noterial Seal) County, Iowa

EXHIBIT 84

CERTIFICATE OF COUNTY TREASURER: PRA

T, Ken W. Gaines, Treasurer of Scott County, Towa, hereby

certify thet the land 1sid out into @ Planned Unit Development

covered by the Plat hereto attached, known and designated as Block

2 of Quad City Technological Center to the City of Bettendorf,

lowa;ris free.-from taxes- payable to: Bcott-Lounty,-lowa_except-for

special assessments for sever and paving. Also 1974 tax as a lien,

but not payable at this date.

Witness my hand this 1st day of July, A.D., 1975.

; Ken W. Gaines, Treasurer

(Seal) — By: M. L. Irwin, Deputy

CERTIFICATE oF ATTORNEY AT LAW:

Z, Don b, Thuline, Attorney at Law, do hereby certify that I

have examined the abstract of title to the land embraced in the

attached plat and described in the accompanying certificate of Dale

&. Christensen, registered land Surveyor, and from such examination

find that the City of Bettendorf, Towa has good fee simple title to

eaid real estate subject to « contract to Middle Road Investors,

Inc. and that said land is free from encumbrances except for the

Sewer and paving assesenents. ;

Dated at Bettendor?, Towa this lst day of July, A.D., 1975.

Don D. Thuline

SERTIPICATE OF COUWTY RECORDER: ;

I, Richard F. Hagen, Recorder of Scott County, Iowa, G0 heraby

Certify that the title is fee to the land covered by the plat

hereto attached, known and Gesignated as Block 2 of Quad City

Technological Center, @ Planned Unit Development to the City of

Bettendorf, Iowa, is in the City of Bettendorf, Towa and Middle

Road Investors, Inc. and thet said title is free froe encumbrances.

DP. ADP

ay EXHIBIT B-5

Witness my hand and seal of ry office hereunto affixed this

lst day of July, A.D., 1975.

Richard FP. Hagen, Recorder

(Seal) " By: Leona M. Petersen, Deputy

CERTIFICATE OF CLERK OF DISTRICT COURT:

I, David H, Dahlin, Clerk of the District Court of the State

of Towa in and for Scott County, hereby certify that the land covered

by the annexed plat known and designated as Block 2 of Quaa city

Tachnological Center, _® Planned Unit Development, to the City of

Bettendorf, fowa, is free from all judgments, attachments, mechanic's

liens, or other liens, as appears by the records of my office.

Witness my hand and the official seal of my office this ist day

of July, A.D., 1975.

David H. Dahlin, Clerk

(Seal) By: Marie “. Lemburg, Deputy

ACCEPTANCE BY CITY OF BETTENDORF, IOWA:

We, the undersigned, William C. Glynn, Mayor, and James W.

Strieck, City Clerk of the City of Bettendorf, Iowa, do hereby

certify that the following resolutiog was passed and adopted by the

City Council of the City of Bettendorf, Towa on the lst day of July,

A.D., 1975 and duly approved on the same day by the Mayor of said

City: ,

RESOLUTION OF ACCEPTANCE

BY CITY OF BETTENDORF

Resolved by the City Council of the City of Bettendorf:

That the Final Plat of Block 2 of Quad City Technological

Center, a Planned Unit Development to the City of

he authorized ané instructed to certify to

che are ee 2 certify

av. :

EXHIBIT B-6

‘Witness our - ands and the seal of the C. -y of Bettendorf, Towa, .

impressed hereon, this lst éay of July, A.D., 1975,

William C. Glynn

" Mayor of the City of Bettendorf,

Towa

James W. Strieck

(Sqal.of City of Clerk.of the. City of Bettendorf, -

Bettendorf,” Iowa) Iowa

----- MII} -----

No. 41.

ASSESSMENT WAIVER.

Dated: July 1, 1975.

Ack'd: July i, 1975. m

Piled: July 18, 1975.

Reo'd: Doc. $11043-75.

MIDDLE ROAD INVESTORS, INC.,

FP et et et et Ce

CITY oF BETTENDORP, IOWA.

Recites that Middle Road Investors, Inc., being the Subdivider

and owner of all lots in a final plat for Block 2 of Quad City

Technological Center, a Planned Unit Development to the City of

Bettendorf, Iowa, which has this date been filed with the Clerk of

the City of Bettendorf, Towa. . :

Recites that it is agreed by Kiddle Road Investors, Inc. that

at such time as sidewalks or other conventional type of subdivision

improvements ate needed, the City of Bettendorf, Iowa shall put in

said improvements ‘and assess the cost of the same in the prescribed -

‘manner against the property comprising said Block 2 of Quad City

Technological Center in accordance with the local requirements

regarding special assessments.

Accordingly, Middle Road Investors, Inc. being the sole ower

of Block 2 of Quad City Technological Center, a Planned Unit Develop-

EXHIBIT B-¥

_——e .

12-05-98 SUN 14:13 FAX 31 32 7345 CHUCK MURPHY . ; Boos

ment to the City of Bettendorf, Towa, hereby waive all notices and

rights of protest to the ordering of said improvements and assessing

the cost thereof against the subdivided property even though ‘the

. cost thereof may exceed the amount that can legally be assessed by

the City of Bettendorf, Towa, against the subdivided property, and

agree to bé respotisibte ‘for-such* differences: and-agree to- permi¢-the |

assessment of the entire cost of all of said improvements against |

the subdivided property. This waiver shall become null and void at

the time the original division improvements are completed and anaes.

by the City.

Executed for Middle Road Investors, Inc. by Robert D. Danico,

President and C, J. Munson, Secretary, with corporate seal affixed.

In the certificate of acknowledgment it is certified that said

parties under oath stated that they are the President and Secretary,

respectively, of Middle Road Investors, Inc., that the seal affixed

is the corporate seal of said corporation; that they executed fore-

going instrument as such etticers in behalf of said corporation with

authority of its Board of Directors as the voluntary act and deed

of said corporation.

——-= WH ~~~

EXHIBIT B32

12-05-99 SUN 24:44 FAX 32° 192 7988. “CEUCK NURRSY Zoos

a nee! | C: hs {

No. 42,

CITY OF BETTENDORF, IOWA, ZONING ORDINANCE.

) Dated: Aug. 18, 1959;

To ) Filed: Sept. 29, 1959,

B Rec'd: 127 Misc., A.

THE PUBLIC. )

Ordinance adopted _by_the city Council. of . the City-of-Bettendorf,

‘Iowa and approved by the Mayor repealing the Zoning Ordinance of the

City of Bettendorf, Towa, passed and approved July 2, 1957 as amended,

and enacting a new Z6ning Ordinance. According to the terms thereof,

as amended by Ordinance dated Pebruary 2, 1971 and recorded on March

' 8, 1971 as Document §2527-71, records of the office of the Recorder

of Scott County, Towa, the real estate under examination is desig-

nated a °PUD" Planned Unit Development District. :

m= MINI ~=--~

No. 43.

ABSTRACTERS * | CERTIPICATE |

' Mortgages and Deeds of Trust dated twenty years or owe prior

to the date hereof, and all matters pertaining to the release or

satisfaction thereof, have been omitted from this abstract unless the

, Yecord shows that less than ten years. have elapsed. since the original

or extended date of tis i of the secured indebtedness, or part

_ thereof, |

. EXHIBIT B4

e —

* BEY Se PTE TE OR & ELIS Stas Gass PSE ae Fae Sole ‘one xe SIE TTS

; . as?

7, vrr Teer rrr oe 0°09" =“ Tw

Bae eee ot Boe Sd 78

OP tom 3:25

: re ay ©

°OSH...2 5 {

8€0.; cGurry, . ;

eee fe ri

Pecece . 7S *

oe so mmm eremen ¥

. sn antes 0 ed ON NETIOSON, ome

mm Lee Monptee ce

. © .

ee ee ee ee a

eo EXHIBIT 4

We, the undersigned, Donald D. Kucharo, Mayor, and Jemes W. ~-

Strieck, City Clerk of the City of Bettendorf, Iowa, do hereby certify that” 7

the City of Bettendorf, lowa on the ind __ day of April , A.D,

1973 and duly approved on the same day by the Mayor of said City: i

RESOLUTION OF ACCEPTANCE

BY CITY OF BETTENDORF

Resolved by the City Council of the City of Bettendorf:

That the Final Plat of Block 1 of Quad City Technological

Center, a Planned Unit Development to the City of Bettendorf, lowa,

as filed with the City Clerk of said City by Middle Roed Investors.

Inc. be and the same is hereby approved and accepted; and that

the Mayor and City Clerk be and they ere hereby authorized and

instructed to certify to the adoption of this o> vammaaearae nian

plat as required by law.

Witness our hands and the seal of the City of Bettendorf, lowa,

impressed hereon, this _ 3rd day of Avril , A.D., 1973.

; IF od ‘ Pdf \ada-*

wh aF bre es . we

” |

sia Cea of Ge Say Wr Cemeate, lowe |

oa" * @e ~tPleez

EXHIBIT C-2

Fs id Pe le 3

NEsr'* § SEC 25-74-4

veg - VoL.0,5£C Ciry & Berrenoors

P 63) -» — Seace: fue l00re ;

r WARTASN pld- 276 "

- gosh ae tert -

$3 sa thin CTR RAISS “

ler &

awa a4 4.

| be 2 en = be, PBoprt®s, L td |

ie 282; Sf « 23

aaeg tt :

aves

Tasted Wind £028 15/7

f es We | SY) em

om me Js Boxe

- : ene 2 * hare

’ . a é

Ne Se -

rd Skids ss

“egah Myles FS

c “- cae tet* ae ae pia

SURVEYOR'S CERTIFICATE

2 4 : To

as QUAD CITY TECHNOLOGICAL CENTER, INC,

A Planned Unit Orvelopment

THE CITY OF BETTENOORF, IOWA

1, William A. Fell, @ Land Surveyor registered under the as ff

(acd He Maen

the State of lowa, do hereby certify thet | have surveyed and leld out

@ tract of land described as follows:

A tract of land In part of the Northeast Quarter of Section 21, Township

78, Worth, Range 4 East of the Sth P.M., City of Bettendorf, tows,

described as follows:

pan at the Mortheast corner of the Mortheest Quarter of sai¢

Section 21; thence South (assumed bearing) along the East tine of the

Northeast Quarter of said Section 2! # distance of 1564.93 feet;

thence South $3°46'K5" West along the Northerly Right of Vey of

Middle Road @ distance of 85.0 feet to the point of beglening;

thence continuing South 53°46*4S" West along the Northerly Right of

Way of Hiddle Road a distance of 430.89 feet to @ polnt of curvature:

thence Southwesterly slong 1382,% feet radius curve concave nor ther ly

@ distance of 350.69 feet to @ point of tangency; thence Sout®

68°18 '45" West @ distance of 68.46 feet; thence North 00°06'19" Cast

@ distance of 931.66 feet; thence South 58°2S'1 I Cast 2 distance of

393.53 feet to @ point of curvature; thence Mortherly om # 1$ foot

radius curve concave westerly a distance of 23.56 feet tos pvint

of tangency; thence Morth 31°34'49" East @ sistance of 3.00 .cet;

thence South 58°25'1I" East a distance of ‘30.64 feet ic @, point

of curvature; thence Southeasterty on 8 919.43 feet racius curve

concave Southwesterly e distance of *41.52 feet to # pola of

reverse curve; thence Easterly on a 15 foot sadiu» .urve concave .

Northerly a distance of 23.32 feet ww the point of beginning

si containing 8.418 acres. ‘

>. -

1 further ceitify that the attached plat of glock 1! of Quac

City Techsologicel Center,inc., @ Planned Unit Development to the

City of Bettendorf, tuwa correctly represents seid survey and a

: « .

: deve lopment. 2 t

. ¥ e % » Ss .

i Dated at Bettendorf, tow this 3rd deaf Anil . 1071

aa sec: pepe EXHIBIT D-1

CERTIFICATE OF ATTORNEY AT LAW:

I, Don Douglas Tholine, Attorney at Law, do hereby certify

that I have examined the ahstract of title to the land embraced in

the attached plat and described in the accompanying certificate of

Willias A. Fees =caistered land surveyor. and from such examination

find that Middle Road Investors, Inc. has good fee simple title.to

eaid real estate and that said land@ 1s tree from encumprances.

Dated at Bettendorf, Iowa, t¥is 3rd day of April, A.D., 1973.

don Douglas Thulihe

ACCEPTANCE BY C RP, IOWA:

We, the undersigned, Donald D,. Kucharo, Mayor, and James W.

Strieck, City Clerk of the city of Bettendorf, Iowa, do hereby cer-

tify that the following resolution was passed and adopted by the

City Council of the City of Bettendorf, Iowa on the 3rd day of April,

A.D., 1973 and duly approved on the same day by the Mayor of said

City:

RESOLUTION OF ACCEPTANCE

. BY CITY OF BETTENOORE

Resolved by the City Council of the City of Bettendorf:

the Pinal Plat of Block 1 Ao Quad City Techno-

logi Cancel, a Piaased vateroeve t to City of

Bettendorf, Iowa, as filed with the. ty Clerk of said

City by Middle Road Investors, Inc. be and the same is

ee eee SS eee and

City Clerk be and they are hereby authorized and in-

structed to certify to the on of this resolutica

upon said plat as required by

Witness our hands and seal of the City of Bettendorf, Iowa, in-

pressed hereon, this 3ré day of April, A.D., 1973. i

Donald D. Kucharo

Mayor of the city of Bettendorf, lowe

(se 1 of City of e

Sevteatent, Lem) James W. Strieck EXHIBIT D 2

Clerk of the City of Bettenéorf, toe

RESTRICTIVE AND PROTECTIVE COVENANTS

MIDDLE ROAD INVESTORS, INC., an Iowa Corporation, hereby estab-

lish and declare the following restrictive and protective covenants

to be applicable to the following described real estate located in

, Scott County, Iowa, to-wit: All lots in Blocks 1 through 6 of The

Planned Unit Development known as Quad City Technological Research

Center, tu the City of Bettendurcl, Towa, which plat ls recorded as

Document No. 5134-73 in the office of the Recorder of Scott County,

Towa:

1. No building shall be erected, placed or altered on any lot

until the construction plans aft specifications and a plan showing

the location of the structure have: been approved by a majority of

the architectural contract committee hereinafter called the Comittee

as to the quality of Workmanship and materials, harmony of external

Gesign with existing structures, and as to location with respect to

topography and finish grado clevation. Said architectural contract

committee shall consist of Two (2) Directors from the Subdivider,

Middle Road Investors, and one additional member who shall be an

owner or agent of an owner of a lot in said addition chosen by the

majority of the lot owners. The Comittee may refuse to approve

such plans and specifications and lot plan if the building, structure

or improvement to be made, constructed or installed in accordance

therewith would not in the judgment of a majority of the Comittee

(a) comply in all respects with the conditions, Limitations, reserva-

tions, restrictions and covenants herein set forth and be suitable

for a use permitted by them, (b) be located on said lot so as to

conform with the topography and finished ground elevation, to be as

close to front building lines as necessary to attain reasonable

uniformity of set-back in no case less than 30 feet with neighboring

buildings and to provide for reasonably adequate rear yaré EXHIBIT D-S

case less than 25 feet and to be sufficiently far from side lot

lines to provide reasonably adequate side yards, in no case less

than ten feet in width, and (c) be constructed in such manner and

of such materials and according to such external design as would

ociitte ‘the development of said Addition, ‘of high wuality and con-

form to the character of and harmonize architecturally with other

buildings then existing on the numbered lots in said Addition.

Approval b*- the Committee of such building plan« ond apsettiea~

tions and lot plz. ‘hall not be required (1) if @ majority of the

Committee fail either ‘to approve or disapprove such building plans

anda specifications and lot Plan within thirty days after submission

of the same to the Cor. ‘Attee, or (2) in any ‘event, and regar less

of whether such plans, specifications and lot plan have been approvdd

by the Comittee and regardless of whether the came have been sub-

mitted to the Committee for approva) <f ‘no suit to enjoin such

erection, construction or installatic ‘ws been commenced prior to

the completion of construction as evidenced by the issuance and re>

cocdetion of an occupancy permit by the Building | Jnepector of the

city of Bettendorf, Towa. Following completion of eiintstlasais of

said building « upon any erect or parcel of property which constitutes

A single building site, as ovidencet by the issuance and recordation

of an éccupancy permit as hereinabove provided, the Comittee shall

have no further jurisdiction over any improvements constructed or

erected upon said tract or , arcel of proverty ibut the remzinder of

these covenants and restrictions shell renain in full force and

effect.

2. Wo trailer, basement, tent, shack, or temporary structuro

shall be allowed upon any of said-lots nor shall any trash, garbage,

eshes or other refuse be thrown or dumped on any lot, however, that

nothing herein shall be construed or prohibit storage on a. EXHIBIT D+

Seibclgs Se ZRS MS aaa Sa

——

reasonable time of such building materials as are necessary éuring

and in connection with the construction of a building, structure,

improvement, aiteration or addition in accordance with the approval

of the Architectural Committee, except as might be reasonably

necessary for ‘trash pickup by the City. -There shal) be no outside

storage allowed in connection with any use of any lot in said addi-

tion and the title holder of each lot, vacant or improved, snall

keep its lot or lots free of weeks, trash and debris.

3. Wo obnoxious or offensive trade shall be veccivd-un upon any

lot nor shall anything be done thereon which may be or become an

annoyance or nuisance to the other lot owners in said addition.

4. The Subdivider shall grade and landscape the “common épen

Space” area shown on the plat within a year following the approval

of the Final Development Plan including the same; the lot owners of

the numbered lots in such Quad _— Technological Center shall main-

tain said “common open space”...

S. The Subdivider shall install sidewalks in the “public walk

ezsements" as shown on the plat at such time as the streets vithin

each addition are constructed; the owners of lot or lots abutting

said public walk easements" shall maintain said sidewalks.

6. The Subdivider shall landscape and, where designated, pro-

vide a planting screen in accordance with the applicable regulations

of the foning Ordinance of tha City af Bettendorf in the "landscaped

areas” khowh on the plat. The planting screen shall be. installed

within one year following the approval of the findl planned wit

deve lopment plan or beforé the occupancy of any lot in the addition

Whichever is sooner and the landscaping shall be installed On each

lot prior to the occupancy of the lot(s) vhere said areas are located.

The owners of lot or lots abuting said areas shall maintain said

shill -sianinagacs pigeagins EXHIBIT D-5

7. The Subdivider sha: install street lights so that the light

is reflected downward and all lot owners shall install all parking

lot and building lights with the light refletting downward and

shielded such that no direct rays of light from the light source

are trangaitted into adjacent residence districts.

8. All signs shall be submitted to the Architectural Comaittee

for approwal and shall conform to the requirements of the sign or~-

dinance of the City of Bettendorf, Towa, in existaance or as herein-

after amended.

9. Bo lot shall be subdivided or any portion thereof soldwith- .

out the prior approval of the Architectural Committee. A 3

10. There will be: no loading or unloading of freight, trash or

garbage between the hours of 9:00 P.M. and 6:00 A.M.

ll. These restrictions shall be in force from the date af the

Owner's Certificate to which it is an exhibit until January 1, 1993_

or until ont later date to which the same may be extended as herein-

after provided, and shal) run with and be binding upon all lots in

said addition, and every part thereof and shall be appurtenant to

and for the benefit of all said lot owners. These restrictions shall

be automatically extended for an additional poe adie a period on Jan-

wary 1, 1993, and each tea year anniversary of said date unless a

written instrument signed and acknowledged by the owners of a majority

of all the lots in Quad City Technological Center shall prior to such

date or-anniversary be recorded with the Recorder of Scott County.

Iowa, abrogating or modi fying the same in whole or in part to the ex-

tent thereia set forth. Im determining the’ majority of said lot

Owners, @ach lot shall be entitled to one vote to be cast according

to the will of a majority fin interest of any co-owners having interest

therein whether such majority is represented by a majority of the un- —

Givided interests in an entire lot or ownership of the greate EXHIBIT D-6

i ee a

of @ subdivided lot. A contract purchaser or life tenant of the

legal title shall be deemed the owner. In all other respects, owner-

ship shall refer to record ownership of legal title. ‘

2l., Invalidity, abandonment or waiver of any one or more of :

these restrictions shall in no wise afféct any of the other re-

" strictions, which shall remain in full force and effect.

12. In the event any person who may at any time own or occupy

any of the numbered lots, or part thereof, in said Addition should

violate or threaten to violate any of these restrictions, said Middle

Road Investors, Inc., its successors and assigns, and the owners

from time to time of any of the numbered lots in said Quad City

Technological Center shall have the right to proceed in any court

of law or equity, by injunction or otherwise, to enforce performance

and restrain violation; or pursue any other remedy to which it or

they may be entitled and shall have the right to collect from the

party or parties violating or threatening to violate the same, either

‘Jointly or severally, all damages, costs, expenses ond counsel fees

resulting from the violation thereof, or incurred in, or in connection

with, seid proceedings.

Dated at Bettendorf, Iowa this 3rd day of April, .1973.

Middle Road Investors, Ine.

By: Robert D. Danico

(Corporate Seal) 3 President

By: Cc. J. Munson

: Secretary

On this 3rd day of April, 1973, before me, the undersigned, a

Notary Public in and :for Scott County, kbwa, personally “EXHIBIT D-7

Robert D. Danico, President, and C,. I. funson, Secretary, of Middle

Road Investors, Inc., an Iowa Corporation, to me personally known,

who being by me duly sworn, did say that they are respectively the

President and Secretary of said corporation, that said corpuration's

seal is attached and that said instrument was signed and sealed on

behalf of the said corporation by authority of its Board of Directors,

and the said Robert D. Danico, President, and C. J. Munson, Secretary,

severally acknowledged the execution of said instrument to be the

voluntary act and deed of said corporation, by it voluntarily ex-

éecuted.

(Notarial Seal) - Judith L, Moore .

Notary Public in and for

Scott County, Iowa.

(weer MN -----

Ad oo;

EXHIBIT D-3

eee Co Le

6305 +o L¢ re . >

Ct ee ke ee ee

“3 (oe The tng Be SERTIFICATE OF COUNTY RECORDER

ee ba ee a ea ae ir

bias ek oe ge poner | é. Hagen, Recorder of Scott County, lowa, do hereby

BRINE Hag GS

AS Pr i 3 0 te coe ty pt tested

Ws)

Sennen lowa, is in Middle

a Beene ay hand and seal of my office hereunto affixed this ard

‘Regi /a.D., 1973.

5 e: I, David H. Dahlin, Clerk of the District Court of the State of lowe

a thand for Scott County, hereby certify that the land covered by the anawned

a J plat known and designated as Block 1 of Quaé C ty Technologies? Cvnor. "e

*" Planned Unit Development, to the City of Bettendorf, lowa, ts free from all

BS judgments, attechments, mechanic's liens, o: other liens, a8 appears by “he

records of my office.

a iS: . Witness my hand and the official seal of rv officer “tie AES

we day.of Ae af .D., 1973, :

a? % ;

$t.& 4 :

“> ee : me ° Afr . - a ee

eo. >a _° S - . aoe ry “lork os

a ) EXHIBIT D-

. GIRTEIGRIE OF COUNTY TRAE TEER

1, Kea W. Gaines, Treasurer of Scott County, lowa, hereby certify

"that the Lind laid out into a Planned Unit Developadnt covered by the plat

“C" perete attacked, known end designated es Quad City Technological Center

to the City of Bettendorf, lowa, is free from taxes payable to Scott Coun’, . l ¥

Iowa. {

Witness my hand this 3rd day of April , A.D., 1973.

. . .

Kew. LU. Merenw

Ken a. Saines Treasurer

* ; #2 WAGs ey: Fh K Aitecee st

1a 2ER 3 Et. Ivin || Demy

igs eo 7

pe a i

CERTIFICATE OF ATTORNEY AT LAW . P H

1, Don Douglas Thuline, Attorney at Law, do hereby certify that I have

examined the abstract of title to the land embraced in the attached piat end

described in the accompanying certificate of William A. Fell, registered land

surveyor, and from such examination find that Middie Road tavestere, Inc.

- has good fee simple title to said real estate and that said land is free from

encumbrances.

Dated at Bettendorf, lowa, this __3rd___s day of April , A.D., 1973.

ss ~ EXHIBIT D-/0

;

This is to certify that the attached Plat of Block 1 of “Quad City

Technological Center” a Planned Uat Development in and for the City of

Bettendorf, Iowa, is hereby made with the free consent of Middle Road Investors,

Inc. as owner and proprietor of the real estate described upon the foregoing

and attached Plat and the Surveyor’s Certificate thereto attached and certifies

that.said Pla: is made in accordance with the desire of said proprietor and said

proprietors do hereby dedicate to the use of the public any and all rights it

may have in and to Commerce Drive as shown on the plat.

NOW THEREFORE, Middle Road Investors, Inc. hereby declares that the

real property described in the surveyor’s certificate is and shall be held, trans-

ferred, sold, conveyed and occupied subject to the restrictive and protective

covenants. :

IN WITNESS WHEREOP, Middle Road Investors, Inc. has caused this

instrument to be executed by its President, attested to by its Secretary and

its corporate seal attached hereto this__3rd_ _§_s day ofApril , A.D., 1973.

: ; MIDDLE ROAD INVESTORS, INC.

_—_—<. - « a | gee.

EXHIBIT D -i!

scam ee@n e oe os *e one —

Ae aPaT ?

ue V 2,

SSaeets

ae NyS aD

saivS

PERT. ek A

he following dencstined reel ectate Pantin Me et, ee, Sl

ols ne EEN

ill car ? end etd extenity tw

Ete i (ory ty oh — ome

reese

ee eee ore

WIDE WHERE cmd cogamaive how Commend fe met cement by bo thay cow wind

Coxe ot wath Pete peme by meres ~ — hi

ee eee Karst ot

. “L. .1 pet I wet pete

“~ . —s ‘ ed ere os

ee een ee oped d oer cteen -

-—— ee Ae

= i oe

a score LOT, «

a. et ee Se ee ee

| __. * __,

’ . ee end = -

so” Y

A A

; ; : r . an Log vl -

‘ OWA S147) bat aapocuTes es T2765 oe

a J

; Cy CORPRATD hie | 3

Be oe ee 4 2

‘ Tht 2. OF: 3

yD henge plc pace A trata ot etter eet o_o

Corsty sd ne oh Seam ee ptr ale oie od med ert endey fhe

bud Jor). te conleretien” of the com of

2nd ot geet ond vetustto conetderetion

be bend ped am be chy CONVEY emity

Grasteed! LAdowes -

RECORE

rg 9

poretien ergeiled ond exitiing ene te

~~ 5 comidwaten® ff the me o!

week? I Vie

ot poet Yalow ot_Betendat tm feo

fc toe

‘ee oy

is S

’

om hevatoy CONVEY ante

2, +%

2 fi

jial;

— 1620 Siete S=ee:

Betierd-wl, lowe $2722

tne of 201d ree!

r Une Morth

Somme st

Eeet to the Morte

onel

aie

Ce Re)

FO te em at tet by 0 ly scam, 04 ey Sat iy we ,

ened

~ te

home A Se nd

Pivwe os

i, chem

eon 3;

tee Bet tt et ee chr ond aoclind oo betel of end

ee eee a

fy ot

eet ble,

este wt Pent owl cs

hiteth, ROO,

* tn mm

Pe te EN 6 Weak |

es 2.

radius curve concave Northwesterly a distance of 23.47 feet toa point of tangency: the,

North $8* 25° li" West along tho Northerly R.O.W. of Commerce Drive a Sommee at:

feet to a point on the Westerly Addition line; thence North 00° 0€' 19* East a distance of

250.00 feet along the Westerly line of the Quad City Technologk 31 Center Addition: thes.

South S4* 19' 09" East a distance of $69.47 feet to a point on the Westerly R.O.W. of Ts

Drive; thence Southwesterly along a 497.75 foot radius curve concave Westerly a distan,

1S6.18 feet to the POINT OF BEGINNING, containing 2.492 acres, #

And ld Comporetiog bareby covenants

estate by file * hye - whatsoever, excep! as may be above slated; i“

° cCovensnis '

Wargl and Onan hn wid prone sgtat Be bel ds of a pao homme, cpt may be son

“a > e i

1, Wel sad hoes her, teeny aclaoradpmad aac, shalt oud sth anger a pl sn, sccrdag te

IN WITNESS WHEREOF said corporefion has caused this instrument fo be duly executed tha __!6th

dey of Tune ume 1976. ie os

Cubjcette+reetretive-covensnts _INC, ae oe,

» ry} We 7 os

Gubfoot fo adraina gs casement overthe ent

: « Subject

to @ sanitary sewer easement 20 feet in width, = PECTIC

the center line of which is 263.07 feet C. J. Munson Title

measured along the North line of Commerce

Drive for the Southwest corner of said real 1630 State Street

estote, thence on a line running North 31°34"

‘ $0* East to the North line of said real * Bettendorf, Iowa $2722

estate. . (Grosters’ Address)

STATE OF IOWA SCOTT COUNTY, »

Cote 16th __ 4, ¢__June __ AD. TE betore me. the,vndeysigned, 0 Notary Ait ie snd fer saic

County ond said Stole, persendly appoored Robert D, Denico gay uns

te me porronslly Lnown, whe, being by me dy soon, Gd sey thet they ow the -~ Presidens

Secretary repectivaly, of wd cerpe:ettir: that Set pido

= nr Ao pa hiRtrpermtteteat

cxparcie Gat itt Inpnccesh wns peed ent wil enti aed eoutedh hal Bees dtone nant

anid Robert Dd. Daico aad ¢. > Mu : ae a wet %ke-

eclaotedged the evacaties of 12d ics. neat to te Bo ualeatary oc! a4ui ys eee !

. fuditn 7 3

are es ——-_ fucite £. Moore "{'_ __Metery Pulte te ood fer veld Cosaly end veld State

‘ > ae & Cetroears on:

~ EXHIBIT E

| §

* a

eee

-* :~ va :

i p_* % bs

et ba Eo ns i

138 ‘ : i. "i ,

Hm Nt lt

* eee

“ae

eure

vow

cM cownny

7 mr er

wane eater

. . .

—

Me. 18

foe

oe me

CF oe = ae

Presents: tn ROBERT W. VERSMAN and ROSE VERSMAN,

ow ae Hs ¥.."3 7 “i *

Aived ¢

WARRANTY DEED

i ee fo ee “tw

- 2 . ye > ° ae

‘

a. -

“tS a@

ae * ©

‘_-*

‘.

. “**

w« , e "

_ Kneis GU Pen bp These

husband and. !

ol ee Slava

ee es

Cx bbe si . tM t

AILS C8 Pe

Gretans dee:

A —

EAR aay

a > : amy & 4 ~.2 x

ee a oe, en

me teas ) saey ste

. % s g ey «3 =. Ne bine A

> Son. - Raha

a high SPACE cee

i severe F* a te, ee

feet, An Me a ey. Tickemare ke

= 3 = pequttinniic tent ee ‘a's

+ 8s $e “aA? oe: s7 23, ».F GS wn - JAE. &%s ro

at ‘ :

—— we a

hereby roknquihes of Wahi of dower; Nemsnod ind ihirivtive’ share a and te ig": P

cacy : 5

ere ee ee

. ?

_ILLINOIS

bet

Speedy

ty t_December

0 Nistary Pafite bard Jor snl

Tt a -——---

+. oa WARRANTY DEED: =

4 % +4

. Knows Fl file ty Chyese Presents: no ess, Waves ont meee wean,

».*

a end pod be hartley Comey ome OWE I

WITH 148 GELLER, PeECERICE J. nnd VROCTS BCLIZ

ae ur 8 ek

hereof by this reference. F f ¢

;

PETE NTT AY OE AR

it [Ff EE

Is Es

Ce Rt te ed ee

- fates. _-

me os — poadintietamieteitnd, ackdendeaed re

cota ee 7 *

EXHIBIT G

sa GS io Te eae .-- “fe

3: = a )

: ar AE A>

Je Pos, rise

Ig sod,

£5

~ @.°4 «*

«~~

Pt SERGE

the laflowing desrbed reel estate, uteated ia Scote

The Legal. description ie attached ers os rentbie |

beregt ly ‘this reference.

Wp SO ag, w

Rare Wh;

Lorn? 7

‘Q7:

- : Grawrems* ADORESS: Kenneth J. and ira jo men SE Os:

ae “yy $144 South Jandica if iv ott ee

- Se Bag levood, co #801” : 2° et tis Bei)

ee i Stuart 3, and Sutith tee Meller Res biesce.

eke * $235 seuth Gregy Court ete rae Rie a.

4 ; Denver, CO 80710 BS Gee OR

< Frederick J. and Frances Belle ¢ sia Betts ae a id 3

r 17256 Loverne Place oe ee K ri Mia

‘ . > 4e0° 4s. ieee

CIEE Ste Srecnents, covensnes bed sustrietions of. pe ie ;

EXEMPT FROCK TOWA TRANSFER TAX STAMPS BY VIRTUE oF 10m ¢ itp 2200.1.

THERE 3$ MD CONSIDERATION FOR THIS CONVEYANCE. =. SBR

This Warranty Deed confirms the deed executed by the Gaantotgcen January 2,

1987, recorded in the Scott County Recorder's office “Bo;

end ratifies and approves the conveyance of a total. PO toe reat.

property legelly described in Exhibit “A° hereto. .

Aad the pester to Hereby Covenant » th te sed oF arena be ered Bt old grorten belt

a nica aie Ra: Ser toe goad ond Gots achat a corm be wore: tre!

sed prewans ore ee A See pt eee Oe ee they ba eosve tated: and

Ne ee On ee en enn iene chive pervoms choracere

escept ot wey be above s! é

eect Se terres hereby “ensures of rights of dower, hom steed ond dewibuive there in and te che

deurhed prensa

Weds ond phum tener 1 stir eoleage ow see A ened i A he ed ne dw nee

Siqred tea Jad. _. de, of

ls ae ___198. s

STATE OF _iLi3etis

Ones 58 on o i 81t

———

hogy ae SEEN Pherae 1360 Kimberly Ridge Boed

% ea

aor)? Ser een wh ea aks

init gy

rid

s————" Bettendorf. IA $2722

ate In_Mortheast quarter.of. Section He ,

h, Re Cost of the Sth P.m. in

Bette yy. lowe more perticulerly

Commencing st the Kortheast

Mostheast Querter of sald Section 233

thence dve South slong the East line of the Sortheast

Quarter of selé Section 21 # distence of 1564.93 feet

to the Mortherly 8.0.". of Middle Road; thence South

$)° 46° 43° West along the Mortherly 8.0.4. of middle

Roed e« distance ef 85.52 feet to a point of curvetvre:

thence Westerly slong @ 15.00 foot cedivs curve concave

Northerly @ Gistence of 23.32 feet to 8 point of

reverse curveture; thence Morthvesterly elong the

Wortherly &.0.¥. ef Conserce Orive end a @ 919.43

foot redive curve concave Southvesterly @ distance of

341.49 feet te @ point of tengencys thence Forth 346

25’ 13° West slong the gp | -0.". of Commerce

Orive @ Gistence of 47.13 feet to the Point of

Beginning; thence apy ey | slong the &.0.¥. of

curvature; thence etre | e) 8 1$.00 foot redive

curve concave Horthwesterly @ distance of 23.47 feet te

a point of tangencys thence Sorth $6° 25° 11° Mest

siong the Bortherly #.0.. of Cumserce Orcive a distance

wl 447.06 feet te s point on the Westerly Addities

jine: thence Morth 00° 06° 19° East « distance of

330,00 feet slong the Westerly line o cit

7 te « point on the

Westerly 8.0.4. of Tech Orives thence Southveste

slong 8 497.73 feet rediue curve conceve Westerly «

distence ef 156.18 feet to the POINT OF SECINHING,

conteining 2.492 scres, sub te o senitery sever

easenent 20 width, center line whice is

263.07 feet measured slong the Horth line of Comserce

Orive for the Southvest corner of ssid real estate,

Morth line of eeld real estate. Subject to sesenents,

covenents and restrictions of record.

ALSO DESCRIBED AS FOLLOWS:

Foungnip ve PORTE, RAGE CEAST OF THE STH PRIDCIPAL RETOIAN tm

COMMENCING AT THE BORTHEAST CORNER OF THE BORTHEAST QUARTER OF

SAID SECTION 21. ‘THEWCE SOUTH 00°@°CO* EAST, A DISTANCE OF

744.06 FEET TO TRE BORTH RIGHT-OF-WAY FOR P.0.9. BaivE

($2°R.0.W.p) THERCE SOUTH 71°25°13* WEST ALOwS SAID BIGrT-or-—ar,

A DISTANCE OF 291.00 FEET; THENCE 22.30 FEET ALOUS & CURVE

CONCAVE Y WITH A RAO{PS OF 15,00 FEET, & CuoRD

SEARING WORTH 6$°59°29° WEST, x rut

TO THE EAST RIGHT-OF-WAY froR TECH DA “252°8,0.0.}; THENCE SovTa

west

OF TECH ORIVE; THEBCE ALONG .THE WAST RIGHT-CP-WAT TRE FOLLOWING

CURVE COBCAVE .

ALONG A CURVE CONCAVE SOUTHWESTERLT WITH A BADTUS GF 497.75 rezT,

A CHORD BEARING SOUTH 06/44°S9° WEST, AND A Cuoed SISTANCE oF

116.99 FEET TO THE POINT OF BEGINNING THENCE 160.18 FIET ALows A

497.73

DISTance oF 349.4

oanan (98,446 &.7.} MORE OR LESS ABD SUBIECT TO ABT EASENE

EXHIBIT

Apa Giant ta /

ae mL |

nan Pai 1S

{2100 mi ; ;

wets Doncine Foe @ do . ~

Pregecet ty Stchord 1, Yeeste, IOET tpemee Bite Geive, Settentert, Oh $9708 060-009-Da0e é

WARRANTY DEED

For the consideration of One Dollar ($1.00) and, other

Consideration, KEMMETE J. VERSHAM AMD LINDA JEAN

and Wife, STUART J. ee ee eee tas weteen. Rusbaad

Some RK meg oy AD FRANCES BELLE GLASSMAN,

soy Convey to to Planned Parenthood of Greater lowd;

or, “Aaron Pereat of Nay on lowa foundation, Inc.,;

described real estate in Scott County, Towa

fee attached Exhibit A,

in interest, chet eaid grantore hold said real eotete oy

fee siaple; that they have good and lawful evthority to

Pree ot

+ eligi |

etated; and said Covenant to Warrant and Defend’

prenices ogainet “the ‘See lavfal — of all persons vhonscevér

except ae may be above stated

Bach of the unders ange A Bing - sditinss $22 dower.

Ghetetben sen fomitghes £12 rights of dove.) _

homestead end

preaises.

Words ead phrases Kegel Dayne nt hereof, shal}

: construed se in wral monbot, snd so mascaliaa ot F

fealnine i} 4. ies to t

Dated thie 1%" sry of April, 1997.

* fe aaa ata —- -—_-_! EXHIBIT I

APPENDIX C

LAW ENFORCEMENT MEMORANDUM OF AMICUS

CURIAE JAMES J. CLANCY, DATED NOVEMBER 24,

1999, DOCUMENTING PAST HISTORICAL EVENTS,

DISASTROUS RESULTS, CONFUSION AND SERIOUS

DETRIMENT SUFFERED BY THE GENERAL PUBLIC

AS A RESULT OF THE INTERFERENCE OF THE

FEDERAL COURTS WITH THE 10™ AND

11™ AMENDMENT SOVEREIGN POWER OF THE

INDIVIDUAL STATES TO REGULATE THE

COMMERCIAL SALE, DISTRIBUTION, ETC., OF

HARD-CORE PORNOGRAPHY BY CLOSURE OF THE

PREMISES AS A COMMON LAW PUBLIC NUISANCE,

AS EXEMPLIFIED BY THE U.S. SUPREME COURT’S

DECISION IN HUFFMAN V. PURSUE, LTD., 420 U.S.

592, 43 L.ED.2D 482, 95 S.CT. 1200 (1975), REH. DEN.,

421 U.S. $71, 44 L.ED.2D 463, 95 S.CT. 1969.

(Reference: Brief Amicus Curiae of James J.

a ... ks. Page 15, line 29.)

C-]

The Law Office Of James J. Clancy

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352

(818) 352-2069

FAX (818) 352-6549

November 24, 1999

MEMORANDUM

SUBJECT:

i. Los Angeles Times news article, dated September 1,

1999, with headline reading “L.A. Economy’s Dirty

Secret: Porn Is Thriving”; and

y & Mayor Richard Reardon’s response to the press that he

“wishes the industry was headquartered somewhere

else” and that he is “ashamed of the porno industry”.

x (a) The use of Orange County Superior Court Exhibits

(records) in the form of autoptical proferences (time and

motion studies of pornographic films to establish visual

proof of Justice Potter Stewart’s “phenomenon” / that

one knows hard-core pornography when he sees it), and

(b) the use of 11 years of public nuisance abatement

adjudications in Santa Ana (1975-1986) (pursuant to

which such pornographic films were declared to be hard-

core pornography and enjoined by Order of Court) to

prove, by example and similitude, the existence of

identical moral public nuisances and unlawful business

practices in the San Fernando Valley, (Excised Line).

¥ Phenomenon is defined in Webster’s Collegiate Dictionary,

5™ Edition, as “any object known through the senses rather than thought

or intuition; specifically with Kant, the object of experience.

C-2

4. My contention that “closure” is mandated where the

visual evidence which is offered is in the form of

autoptical proferences; i.e., time and motion studies of

films which provide irrefutable proof of hard-core

pornography as the sole stock in trade, which is both a

common law public nuisance under People ex rel.

Busch _v. Projection Room Theater, 16 Cal.3d 350

{[Mar. 4, 1976], as modified in 17 Cal.3d 42, 130

Cal.Rptr. 328, 550 P.2d 600 [June 1, 1976] and a

tatut nl | business practice under Business an

Profession Code §17200 and People v. E. W.A.P., Inc.,

106 Cal.App.3d 315, 165 Cal.Rptr. 73 (CA2, dv5, 5-29-

80) (hearing denied by Cal. Sup. Ct. on Aug. 21, 1980)

which can be terminated by a lawsuit brought “by any

person acting for the interests of itself, its members or

the general public” (my emphasis). Business and

Professions Code §17.204.

Pursuant to our phone conversation on October 28,

1999, I am personally delivering this Memorandum with its

supporting documents, which will corroborate my

representations in our September 1, 1999 and October 28, 1999

phone conversations that the present operations of the

producers and distributers of “Porno” films and videotapes in

the San Fernando Valley can be stopped through legal process.

Both the September 1, 1999 Los Angeles Times news

article (see copy at Exhibit A to this Memorandum) and Mayor

Reardon’s remarks acknowledge that the production and

distribution of obscene motion picture films and videotapes is

rampant in the City of Los Angeles. The Mayor’s remarks imply

that there is nothing that the Mayor can do to stop that activity.

I do not agree. The Orange County Superior Court records as

to the number of injunctions which were issued in 11 years of

Public Nuisance Abatement litigation, establish that the contrary

proposition is true.

C-3

Upon reading the September 1, 1999 Los Angeles

Times news article, | immediately picked up the phone and

called to see if it would be possible for you to “access” the

Mayor and alert him to the facts (1) that he has not been fully

advised; and (2) that the production and distribution of such

pornographic films can be stopped by the use of legal process by

any person, pursuant to the Business and Professions Code.

I stated that if'a foundation grant were made available for such

purposes, I could, within a relatively short period, prepare and

submit a comprehensive study and report (Excised Line) based

upon my 11 years of personal experiences with litigation in

Santa Ana, with full documentation by way of autoptical

proferences; that is, time and motion studies”, which would

establish: (1) that the production and distribution of such

pornographic films and videotapes, identical to those in the

litigation in Santa Ana, is both an unlawful business practice and

a public nuisance in Los Angeles, and (2) that such unlawful

business can now be closed down by an Equity Decree under the

Federal Constitution pursuant to the 11™ Amendment

Sovereign Powers of State Judiciaries to act upon important

State matters, and that the proposed Study would outline the

steps that need to be taken in the Courtroom to achieve that

objective.

(Excised Paragraphs [2][suggested remedy)).

As background, I performed legal services for the City

Council of Santa Ana during the 11 year period 1975-1986 in a

monumental effort by the City of Santa Ana to close the

Mitchell Brothers’ Santa Ana Theatre in Honer Plaza (formerly

a United Artist’s Family Theater) as a moral public nuisance.

Unfortunately, at that time, the membership of the

U.S. Supreme Co

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