Petition for Writ of Certiorari — Lubrizol Corp. v. Exxon Chemical Patents, Inc.
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a B81201 cay 2 8 1999
OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES ;
October Term, 1998
IN RE CLARENCE MURPHY,
Petitioner
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
James J. Clancy, Attorney at Law
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352-2221
(818) 352-2069 Fax (818) 352-6549
California State Bar No. 26946
Counsel of Record for
Petitioner Clarence Murphy
QUESTIONS PRESENTED
QUESTION I
Whether the U.S. District Court lacked Article 3, §2
subject matter jurisdiction under the 11™ Amendment of the
U.S. Constitution and was required by the Huffman
Abstention Doctrine to abstain from hearing Planned
Parenthood’s Appeal of the Bettendorf City Council’s zoning
determination. See Huffman et al. v. Pursue Ltd., 420 U.S.
592, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975); Middlesex County
v. Board of State Bar Examiners, 457 U.S. 423, 73 L.Ed.2d
116, 102 S.Ct. 2515 (1982); and Ohio Civil Rights
Commission v. Dayton Schools, 477 U.S. 619 at 627 fn. 2: 91
L.Ed.2d. 512 at 522 fn. 2; 106 S.Ct. 2718 (1986) and Plough
v. West Des Moines Community School District, 70 ©.3d 512
at 516-517 (CA 8™ 1995) (extending the Huffman Abstention
Doctrine to State Administrative proceedings in which
important generic quasi-judicial interests are vindicated)?
QUESTION OU
Whether Planned Parenthood’s Civil Rights Complaint
has pleaded subject matter jurisdiction under Article 3, §2 of
the U.S. Constitution and a right to a federal remedy in the
U.S. District Court under the Civil Rights Act, where Clarence
Murphy has “vested property rights” in the existing PUD Zoning
on the Planned Parenthood property under the Iowa
Constitution, because Murphy’s property lies within 200 feet
of the Planned Parenthood parcel and, where Murphy and other
adjacent real estate owners had, one year earlier, exercised a
successful “protest” under §24.4 of the Bettendorf Zoning
Code, which changed the 4-3 majority required for a zoning
change to a 6-1 super-majority requirement, and defeated
Planned F arenthood’s request for change of Zone from PUD to
C-5, and where the Injunction Judgment of U.S. District Court
Judge Charles R. Wolle, if allowed to stand, will extinguish the
“vested PUD property rights” of Murphy and other protesting
owners of adjacent property in violation of the 11™
es
Amendment and without Due Process of Law as guaranteed by
lowa and the U.S. Constitution?
QUESTION II
Whether the 11™ Amendment and the Res Judicata
Doctrine expressed in Plough v. West Des Moines Community
School District, 70 F.3d 512 at 516-517 (CA 8™ 1995),
precluded Planned Parenthood from withdrawing from the lowa
State Judicial System, and seeking judicial relief from the U.S.
District Court, pursuant to its Article 3, §2 federal subject
matter jurisdiction; where Planned Parenthood voluntarily
submitted itself to the Jurisdiction of the State of Iowa and
Home Rule Authority of the City of Bettendorf for the purpose
of obtaining vested rights in C-5 Zoning, which had jurisdiction
of the subject matter at the time the Bettendorf City Council
made quasi-judicial fact findings, which functioned both as the
basis for its legislative decision (denying the Zone change) and
for a judicial appeal to the Iowa District Court?
QUESTION IV
Whether, under the Rooker-Feldman Abstention
Doctrine, the U.S. District Court lacks subject matter
jurisdiction under Article 3, §2 of the U.S. Constitution of
Planned Parenthood’s Judicial Appeal from the City Council’s
quasi-judicial fact finding determination made one year earlier
which, because of the rights inherent in and arising out of the
mandate of the 11™ Amendment limitation, must be filed and
heard in the Iowa Judicial System for the benefit of Murphy, as
a citizen of Iowa, as a Sovereign State, and the Home Rule City
of Bettendorf, whose citizens had, one year earlier, waged a
successful “protest” under §24.4 of the Bettendorf Zoning
Ordinance, in support of such “vested rights” under the Iowa
Constitution?
QUESTION V
Whether Planned Parenthood has failed to meet its
burden of proof under Allen v. McCurry, 449 U.S. 90 , 60
ete ne) AP
- ———
- ili -
L.Ed. 24308, 101 S.Ct. 441 (1980) and Parratt v. Taylor, 451
US. 527, 68 L.Ed.2d 420, 101 S.Ct. 1908 (1981), to establish
that the U.S. District Court has subject matter jurisdiction of a
legally sufficient 42 U.S.C. §1983 cause of action under
Article 3, §2 of the U.S. Federal Constitution, where: (1) it
is implicit and; as such, must be judicially noticed that by virtue
of such allegations, Planned Parenthood has also stated a cause
of action and remedy which is available against Bettendorf, a
Home Rule City, in the lowa District Court by writ of certiorari
pursuant to Montgomery _v. Bremer County Board of
Supervisors, 299 N.W.2d 687 at 692 (lowa Supreme Court
1980), as a part of the zoning procedures available under the
Bettendorf Zoning Ordinance; and the lowa District Court
and the lowa Judicial System stood ready to hear Planned
Parenthood’s judicial appeal and all legal and constitutional
challenges, and the lowa Judiciary was and is able to render the
same relief in the State Court under the Bettendorf Zoning
Ordinance; and (2) the rights inherent in and arising out of the
11™ Amendment have not been waived by either the City of
Bettendorf or by Clarence Murphy, and mandate that the judicial
appeal involving Iowa’s generic interest in the integrity of the
lowa Zoning procedure and proceedings must be filed and heard
in the Iowa State Court, for the benefit of the citizens of
Bettendorf, as a Home Rule City in the Sovereign State of
lowa?
QUESTION VI
Whether the Order of U.S. District Judge Charles R.
Wolle, dated February 12, 1998, which rezoned Planned
Parenthood’s real property from PUD zone to C-5 zone,
constituted an unconstitutional legislative act which was in
excess of the Court’s judicial powers Y and violated the
Y See Proposition of Law I at page 36, citing Point Il of the recent
opinion of the U.S. Supreme Court in Steel Co. v. Citizens for a Better
Environment, _U.S.___., 140 L.Ed.2d 210, S.Ct. __ (March 4,
1998).
-iv-
Doctrine of Separation of Powers of the U.S. Constitution,
and is subject to correction by an extraordinary Writ of Mandate
and/or Prohibition; where, presumptively, a zone change
involves a Legislative Act and quasi-judicial acts of discretion by
the seven (7) individual City Council persons; and the record
fails to establish that the Bettendorf Ci ouncil’s actions in
denying the zone change had become “ministerial” in form at the
time of such Order (which is a necessary finding and “condition
recedent” to such an order)?
QUESTION VI
Whether Judge Charles R. Wolle’s conduct (improper
rulings) in the three Planned Parenthood cases establishes bias
in favor of Planned Parenthood and a duty to recuse himself in
such cases?
QUESTION VIII
Whether Clarence Murphy’s Complaint in Intervention
is timely under the circumstances of this case and the law
expressed in Chiglo v. City of Preston, 104 F.5d 185 (8™ Cir.
1997) and Meek v. Metropolitan Dade County, 985 F.2d 147}
(11™ Cir. 1993), where Clarence Murphy’s dissatisfaction is
with the unfavorable mind set of the trial judge and his rulings
on subject matter jurisdiction (which, if incorrect, are subject to
correction by a writ of mandamus) rather than the presumption
of adequate representation of his rights by the Bettendorf City
Attorney. See in this regard, the letter delivered to the City
Attorney and City Council on April 3, 1998 and Clarence
Murphy’s dissatisfaction with the City’s failure to appeal, where
Clarence Murphy’s Complaint in Intervention was filed within
a week after the City of Bettendorf disclosed its intentions not
to appeal the twelve (12) propositions of law expressed in
Clarence Murphy’s April 3, 1998 letter delivered to the City
Attorney and City Council?
QUESTION IX
Whether Murphy and the adjoining property owners
-V-
within 200 feet of the Planned Parenthood Zoning Change
Application, who executed a successful “protest” under §24.4
of the Bettendorf Zoning Code, and defeated the Planned
Parenthood Zoning Change Application (which, under the U.S.
District Court Order was not approved by a super-majority
3/4 vote of the City Council) have “standing” to intervene upon
appeal and, require that the Federal action be dismissed for
(1) lack of Article 3, §2 subject matter jurisdiction under the
11™ Amendment; (2) for the failure of Planned Parenthood
and the City of Bettendorf to inform the Court of the “vested
property rights” of said adjoining property owners and that each
was a “necessary party” by virtue of the successful “protest” of
the Application of Planned Parenthood for a Zone Change from
PUD Zone to C-5 Zone, pursuant to §24.4 of the Bettendorf
Zoning Code; and (3) that if such a cause of action were to be
pursued by Planned Parenthood, it must be filed and tried in the
State Court as a State action pursuant to the mandate of the
11™ Amendment, where the State of lowa Judiciary routinely
hears and decides such judicial appeals from the denial of a zone
change and all constitutional challenges regarding the “public
morals” of the State of Iowa and the Home Rule City of
Bettenforf, and stood ready to do so in this case?
QUESTION X
Whether Clarence Murphy possesses a cognizable
interest in the subject matter of the litigation for the purpose of
Intervention; to determine whether the U.S. Distnct Court
below is empowered to rezone the Planned Parenthood property
from PUD Zone to C-5 Zone, where Clarence Murphy, being
the owner of a parcel of land within the 200 foot proscription of
§24.3 and §24.4 of the Bettendorf Zoning Ordinance, has, as
a citizen of lowa, a “vested property right” to participate in a
“statutory protest” and prevent the C-5 rezoning of the Planned
Parenthood Zone Change Application, which “statutory protest”
was exercised and did, in fact invoke the 20% Rule of §24.3
and §24.4 of the Bettendorf Zoning Ordinance so as to now
require a super majority vote of six members of the City Council
o Wh «
to effect the requested zone change and did, in fact, proximately
cause the defeat of the Planned Parenthood Zone Change
Application for C-5 Zoning on March 19, 1996 and this Court’s
attempt to rezone such property to C-5 Zoning?
QUESTION XI
Whether Clarence Murphy’s cognizable interest, as a
citizen of lowa and as a citizen of the United States, will suffer
injury as a result of the U.S. District Court’s Final Judgment,
where Clarence Murphy’s “vested property right to protest” as
a citizen of Iowa wil! be totally defeated without due process of
law under the Iowa State Constitution and the United States
Constitution if Clarence Murphy is not permitted to appeal the
Federal Court’s erroneous judgment, where the Bettendorf City
Council’s quasi-judicial fact finding on March 19, 1997 that
such zone change from PUD Zone to C-5 Zone should not be
granted and should be denied for lawful reasons, was not
appealed by Planned Parenthood in the State of Iowa Judicial
System as is authorized in Board of Supervisors Carroll
County v. Chicago & Northwestern Transportation Co., 260
N.W.2d 813 (lowa 1977); Iowa Department of Natural
Resourses v. Shelley, 512 N.W.2d 579 (Iowa App. 1993), and
required by the 11™ Amendment to the Federal Constitution
which reads:
“The judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State”,
and is now res judicata under Iowa law and is a final judgment
as to which this Federal Court must give full faith and credit and
recognition under the Rule of Law expressed in University of
Tennessee v. Elliott, 478 U.S. 788, 799, 92 L.Ed.2d 635, 106
S.Ct. 3220 (1986); Migra v. Warren City School Dist. Bd. of
Ed., 465 U.S. 75, 77.1, 79 L.Ed.2d 56, 104 S.Ct. 892, 894 n.2
- Vii -
(1984) and in Plough v. West Des Moines Community School
District, 70 F.3d 512 at 517 (CA 8™ 1995), in which U.S.
District Court Judge Charles R. Wolle sat as the Plough trial
Judge?
QUESTION xi
Whether Clarence Murphy’ s cognizable interest has been
adequately protected by the Defendant City of Bettendorf which
heretofore had been acting on Clarence Murphy’s behalf as the
parens patria in the Federal Civil Rights lawsuit. See Motion to
Intervene at “Issues on Appeal” at paragraph 19(a)
through 19(1) (#52, PA 403-409, v.3) and Memorandum in
Support of Motion to Intervene at pages 4 through 6 (#56, PA
485-488, v.3) citing Chiglo v. City of Preston, 104 F.3d 185-
189 (8™ Cir. 1997); Meek v. Metropolitan Dade County, 985
F.2d 1471, 1478 n.2 (11™ Cir. 1993) and Yniguez v. State of
Arizona, 939 F.2d 727, 730, 737 (9™ Cir. 1991), reversed by
a unanimous U.S. Supreme Court in Arizonans for Official
English _and Robert D. Park, Petitioners, v. Arizona.
520U.S.__ (March 3, 1997). See, also, the above described
April 3, 1998 confidential letter to Bettendorf City Attorney
Greg Jager (#58, PA 498-501, v.3).
QUESTION XII
Whether the U.S. District Court’s conclusion of law
that, because a woman has a “privacy” right to an abortion, she
must also have a corresponding “public right” to an abortion
clinic in each local neighborhood in the City of Bettendorf is
erroneous in that it denigrates the Sovereign Right of the State
of lowa and the City of Bettendorf, acting as a Home Rule City,
to declare through its zoning process (procedure and
proceedings) what the “public morals” of the City of Bettendorf
anc State of Iowa shall be with respect to the “abortion” issue,
and the manner in which the State of Iowa and City of
Bettendorf shall treat the land use in the City of Bettendorf and
State of Iowa with respect to the number and location of
abortion clinics which are to be constructed within its
- Vill -
jurisdiction; and whether the recent decision of U.S. District
Judge Charles E. Wolle in Planned Parenthood of Greater
Iowa v. Atchinson, 126 F.3d 1042 (8™ Cir. Sept. 25, 1997)
which prevented the State of Iowa Judiciary from adopting a
State court interpretation requiring that Planned Parenthood be
subjected to the Certificate of Need (C.O.N.) Statute review
process, prior to beginning a new abortion service, was in error
because of its failure to follow the U.S. Supreme Court
Abstention Rule expressed in Watson v. Buck, 313 U.S. 387,
61 S.Ct. 962 (1941) and has no binding effect in this case (see
discussion in Steffel v. Thompson, 415 U.S. 452, 39 L.Ed.2d
505 at p. 521 and 523 fn.3, 94 S.Ct. 1209 [1974] at pages 11,
20, 45, 63 fn.7, infra)?
QUESTION XIV
Whether the Judgment of U.S. District Court Judge
Wolle, filed on February 12, 1998, must be reversed because it
improperly explored, and is improperly predicated upon the
subjective intent of the Members of the Bettendorf City Council
with respect to their actions while legislating, which
consideration is foreclosed by rudimentary zoning law and by
the unanimous decision of the U.S. Supreme Court in Bogan et
al. v. Scott-Harris, No. 96-1569, _ U.S. __, filed on March
3, 1998?
QUESTION XV
Whether Planned Parenthood’s repetitious use of the
jurisdiction of the Federal District Court for trial of subject
matter which should have been filed and heard in the Iowa State
Court as required by the 11™ Amendment, justifies a finding
and determination that such repeated and improper use of
attorneys fees pursuant to 42 U.S.C. §1988 is improper and
must be discontinued and is subject to sanctions where it is
intended as judicial blackmail; i.e., as a means of depriving the
Iowa State Trial and Appellate System of its Sovereign Right to
rule on important State matters?
-1iX-
QUESTION XVI
Whether the City of Bettendorf, lowa deprived Clarence
Murphy of procedural due process in failing to advise US.
District Court Judge Wolle that the Planned Parenthood
Complaint neglected to inform the Court that the “vested
property rights” of Murphy which attended his successful
“protest” were not before the U.S. District Court and, therefore,
any judgment of that Court would not bind any of the Protesters
who were absent, and whether the City of Bettendorf had a duty
to appeal U.S. District Court Judge Wolle’s February 12, 1998
Judgment which wrongfully divested Clarence Murphy of his
“vested property rights” which attended the successful “protest”
and attached to the land which was owned by Murphy, namely
that: “Such Amendment shall not become effective except by
the favorable vote of at least three-fourths (3/4) of all members
of council” Bettendorf Zoning Code at §24.4 (Our
Emphasis. )?
TABLE OF CONTENTS
QUESTIONS PRESENTED, ..cccccccccccccccccccccces i
TABLE OF CONTENTS, »-ccccccccccccccccccccccces ix
TABLE OF AUTHORITIEG, ....cccccescccccscccccese xii
Cs. we escacéceener ee esevedsasesieseceeueds xi
FEDERAL RULES, STATUTES, .......ccccccccccves XViii
STATE RULES, STATUTES, ...cccccsccccccccvccces xviil
TEXTS, LAW REVIEWS, MISCELLANEOUS, ........... xix
PETITION FOR WRIT OF CERTIORARI, .........200+. l
OPINIONS AND ORDERS, .......cccccecccccccescses
RE JURISDICTION, ccccccccccccccsesccccsccccvese
STATEMENT OF THE CASE, ....ccccscccccccccccces
REASONS FOR GRANTING THE WRIT, ..........-+4--
I THE FIRST AND FUNDAMENTAL QUESTION ON
THIS APPEAL IS WHETHER THE U.S. DISTRICT
COURT LACKS ARTICLE 3, §2 SUBJECT
MATTER JURISDICTION PURSUANT TO
BETTENDORF’S 11™ AMENDMENT CLAIM, ......
i THE BETTENDORF CITY COUNCIL QUASI-
JUDICIAL FACT FINDING ON MARCH 19, 1997
WAS NOT APPEALED BY PLANNED
PARENTHOOD AND IS NOW FINAL. THE RES
JUDICATA DOCTRINE PRECLUDED THE U.S.
DISTRICT COURT FROM RE-EXAMINING THE
CITY COUNCIL’S DETERMINATION, ........-..-
i UNDER THE ROOKER-FELDMAN ABSTENTION
DOCTRINE, A FEDERAL DISTRICT COURT IS
WITHOUT AUTHORITY AND HAS NO
JURISDICTION TO REVIEW FINAL
DETERMINATIONS OF STATE JUDICIAL ACTS,
BECAUSE SUCH REVIEW CAN ONLY BE
CONDUCTED BY THE SUPREME COURT, ......
IV PLANNED PARENTHOOD DID NOT COMPLY
WITH THE DETERMINATION BY THE
DIRECTOR OF STATE HEALTH DEPT. THAT
ITS PROPOSED CLINIC CONSTRUCTION IS
SUBJECT TO THE STATE CERTIFICATE OF
NEED (C.O.N.) STATUTE REQUIREMENTS, .....
IV(A) THE TEST IN WATSON __V._BUCK IS
CONTROLLING AND SHOULD HAVE BEEN
APPLIED, ....cccccccccccccscseccessceees
————
- xi -
IV(B) ANUMBER OF IMPORTANTSTATE INTERESTS
ARE INVOLVED IN THE PLANNED
PARENTHOOD FEDERAL CIVIL RIGHTS
|) ee 18
vic) THE STATE COURT WITH A “DIRECT”
ATTACK ON THE “PENDING” STATE ACTION
PROVIDES A MORE EFFICIENT JUDICIAL
FORUM FOR THE RESOLUTION OF DISPUTES
THAN THE “COLLATERAL” CHALLENGES
BEING ASSERTED IN THE FEDERAL COURT
AGAINST STATE STATUTES AND CITY
ORDINANCES, ....ccccceccsecescesssevees 19
IV(D) PLANNED PARENTHOOD HAS FAILED TO
STATE A CAUSE OF ACTION UNDER 42 U.S.C.
§1983 IN THAT IT HAS FAILED TO PLEAD AND
PROVE WHY THE PRINCIPLES ESPOUSED IN
WATSON V. BUCK AND HUFFMAN V. PURSUE,
LTD. DO NOT CONTROL SO AS TO REQUIRE A
DISMISSAL FOR LACK OF FEDERAL
JURISDICTION, ... ccc ececceceecccvesvees 21
V THE PRIVATE RIGHT TO AN ABORTION DOES
NOT JUSTIFY A FEDERALLY MANDATED
ZONE CHANGE AND A _ FEDERALLY
MANDATED ABORTION FACILITY IN
BETTENDORF. BOTH ISSUES PRESENT
“IMPORTANT STATE INTERESTS” INVOLVING
“PUBLIC MORALS” FOR A DETERMINATION
BY A STATE COURT, .....-eececeeccececees 22
VI PRIVATE MORALITY” AND “PUBLIC
MORALITY” ARE “CONCEPTS” WHICH ARE
WORLDS APART. THE LEGAL DISTINCTION
BETWEEN A “PRIVATE” RIGHT TO AN
ABORTION AND A “PUBLIC” RIGHT TO AN
“ABORTION CLINIC” IN EVERY
NEIGHBORHOOD IS CLEAR AND MUST BE
STRICTLY ADHERED TO, .....--eeeeeeeeee 23
ne
- Xil -
Vil STANDARD FOR GRANTING INTERVENTION
AS OF RIGHT, ....ccccccccccccvveesvccces 24
Vill PETITIONER MURPHY, BY VIRTUE OF HIS
STATUS, AS AN OWNER OF REAL PROPERTY
WITHIN 200 FEET OF THE PLANNED
PARENTHOOD PROPERTY, POSSESSES A
COGNIZABLE INTEREST IN THE DENIAL OF
THE APPLICATION FOR A ZONE CHANGE BY
THE BETTENDORF CITY COUNCIL, .......... 25
XI PETITIONER’S MOTION IS TIMELY UNDER
THE CIRCUMSTANCES, .....-.eeeeesceseres 27
X MEEK V. METROPOLITAN DADE COUNTY, THE
SOLE AUTHORITY CITED BY JUDGE WOLLE
IN DENYING PETITIONER’S MOTION TO
INTERVENE, DOES NOT SUPPORT HIS FINDING
ON “TIMELINESS”. MEEK CONCLUDED THAT
SUCH A DENIAL ON “TIMELINESS” GROUNDS
WOULD BE AN ABUSE OF DISCRETION, ....... 28
XI THAT PART OF JUDGE WOLLE’S ORDER OF
APRIL 21, 1998, READING, “MOREOVER,
MURPHY HAS CITED NO CONTROLLING
CONSTITUTIONAL PROVISION, STATUTE OR
CASE LAW SUPPORTING HIS MOTION TO
ENTER THE LAWSUIT AFTER JUDGMENT WAS
ENTERED” IS PATENTLY FALSE, .......++--- 29
TABLE OF AUTHORITIES
CASES
Allen v. McCurry, 449 U.S. 90, at 104,
60 L.Ed.2d 308, 101 S.Ct. 441 (1980), ............... 13, 21
Arizonans for Official English and Robert D. Park,
Petitioners, v. Arizona, 520 U.S. 43, 137 L.Ed.2d 170,
tp te@ fi, ); rene rr rr ro 27
x
t
- xiii -
Arkansas Elec. Energy Consumers v. Middle §. Energy, Inc.,
772 F.2d 401, 404 (8th Cir. eh aa 25
Bd. of Superv. Carroll Cty. v. Chicago & N.W. T; ransp. Co..
260 N.W.2d 813 <) S pret e « 9
Bogan et al. v. Scott-Harris,
No. 96-1569, ___ US. __, decided March 3,1998, ..... 12.16
Boomhower v. Cerro Gordo County Bd. of Ad justment.
163 N.W.2d 75, at 77 (lowa 1968), ........... eae
Chiglo v. City of Preston.
104 F.3d 185, 187-189 (8™Cir.1997) . 24, 26-29
City of Fairfield v. Superior Court.
14 Cal.3d 768 at 772 fn.1, 777, 779 ae Me. ©
City of Grimes v. Polk Coun Board of Supervisors.
495 N.W.2d 75] |. SE ee 4
Cooper v. Mitchell Brothers Santa Ana Theater et al.
No. 81-271,October Term 1980,
decided on other grounds in 454 U.S. 90 Mn .s......... #9
Cooper v. Mitcheil Bros. Santa Ana Theater et al.
No. 82-345, October Term 1982,
denied in 459 U.S. 944 ae | 19
Curtis v. Board of Su ervisors,
270 N.W.2d 447 (Iowa 1978), ......... te age
Day v. City of Los Angeles
11 Cal.Rptr. 325, 189 Cal.App.2d 415 ae an
Dist. of Columbia Court o als v. Feldman.
460 U.S. 462, 75 L.Ed.2d 206, 103 S.Ct. 1303 (1983)
(see Rooker-Feldman ae 3, 6,14
- XIV -
Dubinka v. Judges of the Superior Court,
23 F.3d 218, 221, 222 (9™ Cir. 1994) .........0....0..0... 14
Goodell, et al. v. Humboldt County, lowa, et al.,
1998 1A.36 <http://www.versuslaw.com>, ................ 23
Huffman Abstention Doctrine (see Huffman v. Pursue, Ltd.),
ébb0 00s thheeete sae eateries 3-4, 6, 10, 18, 21
Huffman v. Pursue Ltd., No. 73-296
(Huffman Abstention, see also Younger-)
420 U.S. 592, 604-605, 606 fn.18&19,
43 L.Ed.2d 482, 493-494 fn.18&19, 95 S.Ct. 1200 (1975);
reh. den., 421 U.S. 971, 44 L.Ed.2d 463, 95 S.Ct. 1969,
fo dvb etna eee oe 3-4, 6, 10, 18, 21
In Re Clarence Murphy, U.S.C.A. 8™ No. 98-2825,
a ne 7
lowa Department of Natural Resourses v. Shelley,
S12 W.W 26 STROMO AG. TPFSD, ow ccc ccc ee ncccenss 9
Jenkins v. State of Missouri,
967 F.2d 1245, 1248 (CA 8™ 1992), .................... 29
Juncker vy. Tinney IIT, 549 F Supp. 574, ................. 21
Kerr v. U.S. District Court,
426 U.S. 394, 48 L.Ed.2d 725, 96 S.Ct. 2119 (1976), ........ 6
Lujan v. Defenders of Wildlife,
504U.S.__, 119 L-_E.2d 351, 112 S.Ct. 2130, 2144 (1992), . 30
Matter of City of Ames, 219 N.W.2d 718 (lowa 1974), ....... 9
Meek v. Metropolitan Dade County,
985 F.2d 1471, 1478 n.2, 1479, 1488 (11™ Cir. 1993) ..... 28-30
Metromedia, Inc. v. San Diego, 453 U.S. 490 at 521 fn.26,
69 L.Ed.2d 800, 101 S.Ct. 2882 (1981), ..............2.. 21
-XV-
Middlesex Ethics Comm. v. Garden State Bar Assn..
457 US. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515 (1982), ...... 20
Migra v. Warren City School Dist. Bd. of Ed.,
465 U.S. 75, 77 n.1, 79 L.Ed.2d 56,
104 S.Ct. 892, 894n.1 (1984) .................... 4,11, 13
Mille Lacs Band of Chippewa Indians v. Minnesota.
989 F.2d 994, 997, 1001 (8™ Cir. 1993),................. 27
Montgomery v. Bremer County Board of Supervisors,
299 N.W.2d 687 at 692 (Iowa Supreme Court 1980),....... 4,8
Mugler v. Kansas, 123 U.S. 623 (1887), ................. 23
Nash v. Blunt, 104 F.R.D. 400, 402-404 (W.D. Mo. 1992),
aff'd. in African Amer. Voting Rts. Legal Def. Fund, Inc.
Se, DOr We. PREP CUUUED 5 cee cccecvccsevcesces 24,27
Nemmers v. City of Dubuque, Iowa.
ee 4, 26
Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967), ....... 25
Parratt v. Taylor, 451 U.S. 527,
68 L.Ed.2d 420, 101 S.Ct. 1908 (1981) ............... 21, 23
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,
95 L.Ed.2d 1, 107 S.Ct. 1519 (1987), ................... 13
People ex rel. Busch v. Projection Room Theater,
17 Cal.3d 42 at 56, 130 Cal.Rptr. 328 at 336, 338 (1976), .... 20
Planned Parenthood of Greater Iowa v. Atchison.
126 F.3d 1042 at 1042-1049 (8™ Cir. 1997), ......... 14-16, 26
Planned Parenthood of Greater Iowa v.Clarence Murphy,
U.S.C.A. 8™ No. 98-2496SID (Direct MAN cg Saks Sows 6,7
a ee
- XVI -
Plough v. West Des Moines Community School District,
70 F.3d 512, 516-517 (CA 8™ 1995), .. 102... 2, 4, 7,9, 11,13
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), ............. 6
ae we iy) So ee 23
Rooker-Feldman Abstention Doctrine
(see Rooker and District of Columbia Court, etc.), ..... 3, 6,14
Rooker v. Fidelity Trust Co.,
263 U.S. 413, (1923) (see Rooker-Feldman Abstention). 3, 6, 14
Santee Sioux Tribe of Nebraska v. Nebraska,
121 F.3d 427 at 431 (C.A. 8™ Aug. 13, 1997) .......... 16, 26
S.E.C. v. Flight Transp. Corp..,
199 F.2d 943, 948 (8™ Cir. 1983), ........00 000000000... 25
Sierra Club v. Robertson, 960 F.2d 83, 86 (8™ Cir. 1992) ... 24
Southern Pacific Transportation Co. v. City of Los Angeles,
922 82d O06 "Ci, Ce ek ee ee ee ees 9
State of Idaho ex rel. Kidwell v. U.S. Marketing, Inc.
102 Idaho 451 (1982), jur. noted 454 U.S. 1140 (1982),
and app. dism., pursuant to Rule 53, 455 U.S. 1009 (1982),... 18
Steel Co. v. Citizens for a Better Environment,
___US. __, 140 L.Ed.2d 210, 118 S.Ct. 1003,
at Point ETE (March 4, 199G), 0c ccc cc cn ewe sewes 6-7, 27
Steffel v. Thompson, 415 U.S. 452,
39 L.Ed.2d 505 at 521, 523, 94 S.Ct. 1209 (1974), ......... 16
Tilton v. Richardson,
403 U.S. 672 at 684, 29 L.Ed.2d 790, 91 S.Ct. 2091 (1971), .. 20
tthe EMR Nag Diy
- XVii -
United Airlines, Inc. v. McDonald,
432 U.S. 385, 396, 53 L.E.2d 423, 97 S.Ct. 2464 (1977), .... 29
U.S. v. Thirty-Seven Photographs,
402 U.S. 363, 28 L.Ed.2d 822, 91 S.Ct. 1400 (1971), ....... 20
U.S. v. Union Elec. Co.,
64 F.3d 1152, 1157-1159, 1161-1162 (8™ Cir.1995), ....... 24
U.S. v. United Mine Workers of America,
330 U.S. 258, 91 L.Ed. 884, 67 S.Ct. 677 EE Peo ee 19
University of Tennessee v. Elliott.
478 U.S. 788, 796-799, 92 L.Ed.2d 635,
eV 11-12, 14
Vickory v. Walton, 721 F.2d 1062 (6™ Cir. 1983),
cert. denied, No. 83-2111, 53 L.W. 3237 eo 22
Watson v. Buck, (Watson v. Buck Abstention)
313 U.S. 387, 401-402, 61 S.Ct. 962 (1941), ... 15-17, 19, 21-22
Will v. U.S...
389 U.S. 90, 19 L.Ed.2d 305, 88 S.Ct. 269 (1967), .......... 6
Wisconsin Dept. of Corrections v. Schacht, No. 97-461,
524U.S.__, 141 L.Ed.2d 364 at 375-378,
J a SS 6
Yniguez v. State of Arizona,
939 F.2d 727, at 734-738 (9™ Cir. 1991), ............. 27, 29
Younger-Huffman Abstention Doctrine
(see Younger and Huffman, etc.) ...................... 16
Younger v. Harris (Younger Abstention Doctrine),
401 U.S. 37, 27 L.Ed.2d 669, 91 S.Ct. 746 (1971), ....... 15-16
~ XVill -
FEDERAL RULES, STATUTES,
Federal Rules of Civil Procedure, Rule 24(a)(2), .......... 24
Judicial Doctrines
Clean Hands (Equitable), 1 Story Eq. §758,......... 30
PE frat sorta a a's & a oe at ee 3-7, 9, 11, 29
I te a eg ag nian ees 3, 6, 11
I Se et ae ae eee eee 6
United States Codes
ST i cada ss a fae ae Wee 5-7
28 U.S.C. §2281 (repealed in 1976), ............. 3,5
ee BR EG 6 Ovo eee koe we 4, 12-13, 15, 21-22
United States Constitution,
ae cis 4 pec oe eeaen eed 6-7, 10, 25
11™ Amendment, ...... 3-6, 9-10, 12, 15-16, 24, 26-28
United State Supreme Court
eR PL toc ve ee bid etn enr cr eee 2
Eco oe aie On oie Pen eae remains 2
BAG nei uae ot A ag ey gyre pate, Nm yay BA yar tee 7
STATE RULES, STATUTES
Bettendorf “Protest” Zoning Ordinance ........ 3, 5, 12-13, 30
og er ee 13
ee re Ce ete Ole iin ty Wi ih irs ears amie 4
MS cree ge eee ee gee eae 25, 30
§24.4 (20% Rule [procedural]), ........... 3-4, 25, 30
Iowa Certificate of Need Statute (C.O.N.),
S977 town Acts, Ch. 75, ........----005--- 14-16, 26
I, oie ucu occa ceeneseues Kh te nee eee es 8
- XiX -
lowa Constitution,
Article 1, §9 and §18 (“Vested Rights claim”), . 25, 29, 30
Article 3, §38A and §39A (“Home Rule Authority”),
ene ee es CC Ee ts Ra Ce nee 18, 22-23
lowa Rules of Civil Procedure,
SS neislae cere. te See ee ee 8
i OT Net Bg ase de 9
Ohio Red Light Abatement Statute (re Huffman), .......... 18
TEXTS, LAW REVIEWS, MISCELLANEOUS
63 Columbia Law Review,
Morals Offenses and The Model Penal Code,
Louis B. Schwartz, 671-672, 681 ...................... 23
lowa Land Use and Zoning Law, Vestal, i» |) Se 8
Municipal Corporations, McQuillin, 3®° Ed. (rev.)
§13.03c Judicial or Quasi-Judicial Functions, ..... . 9-10
Supreme Court Practice, 7” Ed,
Stern, Gressman, Shapiro and Geller, at page 495, ......... 6
een
No. 98-___
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1998
IN RE CLARENCE MURPHY,
Petitioner
PETITION FOR WRIT OF CERTIORARI
OPINIONS AND ORDERS
A copy of the Orders of the U.S. District Court, the
8 Circuit Court of Appeals below, and the US. Supreme
Court appears at Appendix A to this Petition for Writ of
Certiorari.
On the dates below, U.S. District Judge Charles R.
Wolle rendered the following decisions which are being
appealed:
March 17, 1998: Order of U.S. District Judge Charles R.
Wolle, modifying his February 24, 1998 Order (#45,
PA 370, v.2) in part and denying the rest of Defendant’s
Motion to Reconsider Findings of Fact and
Injunction (#43, PA 365, v.2) and reserving the right
:
to expand his Findings of Fact at the time he rules on the
Plaintiff's application for attorneys fees. See
#47 PA 375, V.2. (Our emphasis. )
April 21, 1998: Order of U S. District Judge Charles R. Wolle,
granting the motion to file an over length brief, and
denying the Motion to Intervene (#52, PA 392, v.3) and
all other motions as moot: Jnmtervener’s Motion for
Expedited Ruling on His Motion to Intervene, or in
the Alternative, an Extension of Time Within Which
a Notice of Appeal May be Filed From This Court’s
Order (#51, PA 386, v.3), and Motion to Dismiss for
Lack of Subject Matter Jurisdiction (#53, PA 447, v.3)
of Clarence Murphy. See #57 PA 490, V.3. (Our
emphasis. )
May 11, 1998: Order of U.S. District Judge Charles R. Wolle,
denying the Amended Motion to Reconsider and to
Dismiss for Lack of Subject Matter Jurisdiction and
Pursuant to the Doctrine of Res Judicata; Request for
Oral Argument Pursuant to Local Rule 14(c) on Issue
of Res Judicata as Applied by this Court in Plough v.
West Des Moines Community School District, 70 F.3d
$12 (CA 8™ 1995), by Clarence Murphy. See #65 PA
542, V.3. (Our emphasis. )
June 1, 1998: Order of U.S. District Judge Charles R. Wolle,
denying the Renewed Request for Oral Argument
Pursuant to Local Rule 14(c) and Good Cause Shown
on Issues of Intervention, Res Judicata and Lack of
Subject Matter Jurisdiction (#68, PA 548, v.3) by
Clarence Murphy. See #70 PA 559, V.3.
RE JURISDICTION
Petitioner seeks review pursuant to U.S. Supreme
Court Rules 10(a) and 10(c) on the grounds that the 8™ Circuit
Z ‘is rae ~ aia atau
;
j
:
i
Court of Appeals: (1) has so far departed from the accepted and
usual course of judicial proceedings; to wit, ignoring an 11™
Amendment Constitutional violation and violations of the
Huffman Abstention Doctrine, the Rooker-Feldman
Abstention Doctrine, and the Res Judicata and Stare Decisis
Doctrines, and (2) has sanctioned such a departure by a lower
court as to call for an exercise of this Court’s supervisory
power, to wit, it has sanctioned Judge Wolle’s Injunction Order
(see footnote 2 on page 10) which has enjoined the City of
Bettendorf from enforcing its zoning ordinances, including the
Bettendorf “Protest” Ordinance, (Zoning Code §24.4),
against the Planned Parenthood property, a judicial act which,
prior to 1976, required the empowerment of a 3 Judge court
pursuant to 28 U.S.C. §2281 (repealed). The U.S. District
Court and the 8™ Circuit Court of Appeals have decided an
important federal question in a way that conflicts with relevant
decisions of this Court on the 11™ Amendment; to wit, the
Huffman Abstention Doctrine, Huffman v. Pursue Ltd., 420
U.S. 592, 43 L.Ed.2d 482, 95 S.Ct. 1200 (1975), the Rooker-
Feldman Abstention Doctrine and the Res Judicata and
Stare Decisis Doctrines.
STATEMENT OF THE CASE
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 PUD Zone (which was
surrounded by and within 200 feet of three relatively new
residential apartment complexes) and submitted an application
for a Zone Change by ordinance to C-S5.
The adjacent apartment owners objected and made a
successful statutory protest (20% Rule) against the zone change
(being within 200 feet of the Planned Parenthood property),
ste
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 aligned itself with the protesters
and on March 19, 1996 voted 5-1 not to adopt the C-5 Zoning
Ordinance.
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 wnt 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, in which case, under the 11"
Amendment and Huffman v. Pursue Ltd., 420 U.S. 592 at
606, fn. 18 and 19 and the progeny of Huffman (University of
Tennessee v. Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct.
3220 [1986], and Migra v. Warren City School Dist. Bd. of
Ed., 465 U.S. 75, 79 L.Ed.2d 56, 104 S.Ct. 892 [1984], and
Plough v. West Des Moines Community School District, 70
F.3d 512 at 516-517 [CA 8™ 1995]), the city council’s quasi-
judicial order becomes final and Res Judicata.
On March 21, 1997, One year and two days after the
City Council’s denial of the Zone Change, Planned Parenthood
filed a Civil Rights Action under 42 U.S.C. §1983 in the US.
District Court (#1, PA 1, v.1) (pleading what is, in essence, an
appeal from the Bettendorf City Council’s quasi-judicial Order
denying the C-5 Zone Application) but did not name the
adjacent apartment owners who made the successful statutory
protest as defendants or the Iowa Ordinance being attacked.
The City of Bettendorf filed a Motion for a Partial
Summary Judgment, pursuant to the 117 Amendment and the
Res Judicata Doctrine (#21, PA 119, v.1). U.S. District Judge
Charles R. Wolle (erroneously) denied the City’s Res Judicata
3
=
a
4
a
4
Fi
2
y
*
Bf
z
— a
Plea (#32, PA 181, v.1).
Upon conclusion of the federal trial, Judge Wolle
entered a judgment which purported to rezone the property to
C-5 Zoning (#42, PA 364, v.2,) and enjoined the enforcement
of the Bettendorf Zoning Ordinance with respect to the
Planned Parenthood property, which judicial act, prior to 1976,
required a 3 Judge Court under 28 U.S.C. §2281 (repealed), see
footnote 2 on page 10, infra.
Petitioner Murphy timely moved to _ intervene,
(immediately after the City of Bettendorf announced its decision
not to pursue an appeal), for the purpose of appealing U.S.
District Judge Wolle’s Judgement on 11™ Amendment
) isdictional and other grounds, including his denial of
Bettendorf's Summary Judgment Motion on a plea of Res
Judicata.
U.S. District Judge Wolle ruled (cursorily) on Petitioner
Murphy’s extensive pleadings: (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.
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).
In a highly unorthodox ruling, the Court treated the
Appellant’s Opening Brief of Petitioner on the direct appeal
and Petitioner’s original petition for a prerogative writ of
mandamus as though they had been consolidated, and, in a brief
single order, denied the petition for Wnt 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 of a hearing en
banc in each of the two cases.
ee
a
Petitioner Murphy seeks 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, Rooker-Feldman Abstention Doctrine,
Res Judicata Doctrine, and the Stare Decisis Doctrine.
Petitioner Murphy contends in this Petition for Writ of
Certiorari, that the 11‘ Amendment and the Doctrines of Res
Judicata and Stare Decisis control this litigation and that he is
entitled to a Rule Nisi pursuant to 28 U.S.C. §1651(a)
correcting the refusal of both Courts 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, infra, at Point II] (duty to address the
question 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 matter to the trial court’s attention); Puerto Rico
Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., \2!|
L.Ed.2d 605 at 610, 506 U.S. 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 (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,
48 L.Ed 2d 725 (1976); Will v. ULS., 389 U.S. 90, 19 L_.Ed.2d
305 (1967); and Supreme Court Practice, 7’” Ed, Stern,
Gressman, Shapiro, Geller at page 495.
REASONS FOR GRANTING THE WRIT
I
THE FIRST AND FUNDAMENTAL QUESTION ON
THIS APPEAL IS WHETHER THE USS.
DISTRICT COURT LACKS ARTICLE 3, §2
SUBJECT MATTER JURISDICTION PURSUANT
TO BETTENDORF’S 11™ AMENDMENT CLAIM.
This appeal of Planned Parenthood v. Clarence
i Base RS Can ac Wy RAE erect RR Sh
‘
+ 2
Murphy, U.S.D.C. No. 3-97-CV-80056, is before this Court
(on a Rule 12 Petition for Writ of Certiorari) in two forms:
(1) a direct appeal in Planned Parenthood vy. Clarence
Murphy, and (2) in a separate Petition for a Writ of Mandamus
in In Re Murphy, claiming lack of subject matter jurisdiction /
In both cases, the first and fundamental question is that of
federal subject matter jurisdiction under Article 3, §2, of the
U.S. District Court below, from which the record comes. See
the principle of law recently laid down by the U.S. Supreme
Court in its opinion in Steel Co. v. Citizens for a Better
Environment. US. __, 140 LEd2d 210,
___ S.Ct. (March 4, 1998)
I
THE BETTENDORF CITY COUNCIL QUASI-JUDICIAL
FACT FINDING ON MARCH 19, 1997 WAS NOT
APPEALED BY PLANNED PARENTHOOD AND
IS NOW FINAL. THE RES JUDICATA
DOCTRINE PRECLUDED THE U.S. DISTRICT
COURT FROM RE-EXAMINING THE CITY
COUNCIL’S DETERMINATION.
Planned Parenthood’s appropriate remedy, for the City
Council’s alleged illegal act in rejecting the Zone Change
Application of Planned Parenthood (Vision). was to timely file
a petition for writ of certiorari in the lowa State Courts. Not
having done so, the decision of the Bettendorf City Council
became a final adjudication and claim preclusion and the Res
Judicata Doctrine prevents Planned Parenthood from now
litigating those issues in the U.S. District Court. See Plough v.
West Des Moines Community School District, 70 F 3d 512 at
517(CA 8™ 1995).
¥ “In addition, on January 22, 1999, Petitioner Murphy filed a
Petition for Writ of Mandamus Pursuant to 28 U.S.C. §1651(A), invoking
this Court’s Original Jurisdiction, and an Application for Leave of Court
to File a Petition, etc., in Excess of Applicable Page Limit.
a
Iowa Code §414 vests municipalities with the authority
to adopt zoning regulations and thereby restrict the use of land.
Governmental power to pass land use restrictions is primarily a
legislative function. lowa Land Use and Zoning Law, Vestal,
1979, §5.04.
Iowa Rule of Civil Procedure 306, provides:
“A writ of certiorari shall only be granted when
specifically authorized by statute; or where an inferior
tribunal, board or officer, exercising judicial functions.
is alleged to have exceeded its, or his proper jurisdiction
or otherwise acted illegally.” (Our emphasis. )
Denying a zoning request is a judicial function for certiorari
purposes under the broad definition adopted by Iowa Courts
wherein judicial function includes cases where the challenged
action takes place after required notice and opportunity to be
heard. See City of Grimes v. Polk County Board of
Supervisors, 495 N.W 2d 751 (lowa 1993); Montgomery vy.
Bremer County Board of Supervisors, 299 N.W.2d 687 (lowa
1980); Curtis v. Board of Supervisors, 270 N.W.2d 447 (lowa
1978). See, also, Boomhower v. Cerro Gordo County Board
of Adjustment, 163 N.W.2d 75 (lowa 1968) at page 77, where
the Court held:
“Amendment of a zoning ordinance is a legislative
function placed in the board of supervisors.
Parties who claim such ordinance or amendment thereto
is arbitrary or capricious should seek relief in the courts
by petitioning for a wnt of certiorari.” (Our emphasis. )
It is uncontroverted that in the instant case, public
hearings, preceded by notice, were held, by both the Planning
and Zoning (P & Z) Commission and the Bettendorf City
Council, prior to the City Council’s rejection of the Zone
Change Application of Planned Parenthood (Vision). The action
of the City Cuuncil on a zone change is clearly a judicial
Attest ind ween ewes
ie AMMAN RRR NN I bel lit Sees
sen
function under Iowa law. Planned Parenthood was required to
petition for a writ of certiorari in the lowa Appellate Court
pursuant to the 11™ Amendment.
Planned Parenthood did not, and can not, contend the
zoning ordinance at issue in the rezoning request in March of
1996 is unconstitutional on its face or that exhaustion of its state
remedies would be futile. Planned Parenthood’s allegations are
only that the Bettendorf City Council’s action was arbitrary and
capricious and unconstitutional as applied to them.
Planned Parenthood is not only not excused from
pursuing its state court remedies (see Southern Pacific
Transportation Co. v. City of Los Angeles, 922 F.2d 498 [9™
Cir. 1990] and Matter of City of Ames, 219 N.W.2d 718 [lowa
1974]), the 11™ Amendment mandates that the Iowa State
judicial procedures be followed.
Iowa Rule of Civil Procedure 319 provides that a
petition for writ of certiorari must be filed “within thirty days
from the time the tribunal, board or officer exceeded its
jurisdiction, or otherwise acted illegally” The action
complained of occurred on March 19, 1996. It is
uncontroverted that no petition for writ of certiorari was filed.
The decision of the Bettendorf City Council thereby
became a final judgement and claim preclusion and the Res
Judicata Doctrine prevents Planned Parenthood from litigating
in the U.S. District Court any claims and issues relating to the
March 19, 1996 decision of the Bettendorf City Council. See
Board of Supervisors Carroll County v. Chicago &
Northwestern Transportation Co., 260 N.W.2d 813 (lowa
1977); lowa Department of Natural Resourses v. Shelley. 512
N.W.2d 579 (Iowa App. 1993). See, also, Plough v. West Des
Moines Community School District, 70 F.3d 512 at 517 (CA
gT 1995),
In acting upon a zone change in a planned unit
development, the city council engaged in a quasi-judicial fact
finding process and determination. See Ciiy of Fairfield vy.
Superior Court, 14 Cal.3d 768 at 772 fn.1 (1975). See, also,
McQuillin, Municipal Corporations §13.03c— Judicial or
~ 10.
Quasi-Judicial Functions. Under lowa Law, such a quasi-
judicial determination is final unless it is reversed upon an appeal
within the lowa Judicial System.
Because of the mandate of the 11'™ Amendment, such
application for relief must be made to the Iowa District Court.
It cannot be heard by the U.S. District Court, because the U.S.
District Court lacks subject matter jurisdiction under Article 3,
§2 of the U.S. Constitution and the Huffman Abstention
Doctrine. The 11'’ Amendment provides:
“The judicial power of the United States shall not be
construed to extend to any suit in law or Equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State” (Our emphasis. )
Instead of appealing the Bettendorf City Council’ s quasi-
judicial determination to the lowa District Court, Planned
Parenthood improperly filed its Civil Rights action on March 21,
1997 inthe U.S. District Court. On June 19, 1997, Judge Wolle
erroneously denied the City of Bettendorf’s Motion to Dismiss
for Lack of Subject Matter Jurisdiction (see Order at #19,
PA 115, v.1), and on February 12, 1998, Judge Wolle filed his
Judgment in this Civil Rights case (see #41 and #42, PA 335-
363, v.2) 2
2 The Docket entry for February 12, 1998 (see #1, PA at 10, v.1)
reads as follows:
“2/12/98 77 Findings of Fact and Conclusions of Law ORDER
by Chief Judge Charles R. Wolle terminating case Final Judgment
is hereby entered for Plaintiff, Planned Parenthood of Greater
Iowa, Inc., and against the Defendant, City of Bettendorf, IA, with
costs and attorney fees to be paid by the Defendant, City of
Bettendorf, IA. The Court now permanently enjoins the
Defendant, City of Bettendorf, IA, from enforcing its zoning
ordinances against the Plaintiff, Planned Parenthood of Greater
Iowa, Inc., on the site where it proposes to construct a medical
" _
<th.
Because Planned Parenthood did not appeal the March
19, 1996 quasi-judicial fact finding of the Bettendorf City
Council, which denied the Zone Change from PUD to C-5, that
determination is now final and is res judicata under Iowa Law.
Further, it is a final judgment as to which the Federal Courts
must give full faith and credit and recognition under the Res
Judicata and Stare Decisis Doctrines and the rule of law
expressed in University of Tennessee v. Elliott. 478 U S. 788,
799, 92 L.Ed.2d 635, 106 S.Ct. 3220 (1986); Migra v. Warren
City School Dist. Bd. of Ed., 465 U.S. 75,77 fn. 1, 79 L.Ed.2d
56, 104 S.Ct. 892, 894 fn.1 (1984). See, also, Plough v. West
Des Moines Community School District, 70 F.3d 512 at 517
(CA 8™ 1995) in which Judge Wolle sat as the Plough trial
Judge.
The Trial Court’s Final Judgment of February 12, 1998
which held that the Bettendorf City Council’s quasi-judicial fact
finding and determination was fraudulent and replaced that
finding with the Trial Court’s Declaration that a majority (4-3)
of the City Council were untruthful and that the zone change
would be mandated by the Federal District Court was a clear
violation of the Laws of Zoning described above.
The findings of fact by the U.S. District Court regarding
the motives of a simple majority (see “Findings on Disputed
Facts” [#52, PA 426, v.3] reading, “The court finds not
believable the testimony of the Mayor and the majority of City
Council members about why they voted to reject P & Z
recommendation.” [our emphasis]) are flawed and inadequate
and do not support Judge Wolle’s “Conclusion of Law” and
Declaration that the “site is now declared to be zoned C-5, a
classification appropriate for the clinic plaintiff plans to
operate.” (See “Declaratory Judgment and Decree” at #52,
PA 431, v.3).
clinic. That site is now declared to be zoned C-5, a classification
appropriate for the clinic Plaintiff plans to operate. (cc: all
counsel) [Bill of Costs sent to Pitf Planned Parenthood] 20 OJ 30
(Ih) [Entry date 02/13/98}” (Our emphasis. )
-i2.-
The “Protest Rules” allowed by lowa State law required
a “super-majority” (6-1) vote and a simple “majority” vote is
insufficient to support Judge Wolle’s conclusion. Further, on
March 3, 1998, the U.S. Supreme Court, in a unanimous
decision in Bogan etal. v. Scott-Harris, No. 96-1569, __ US.
___, (March 3, 1998) firmly re-established the Hornbook
Zoning law which holds that the motives of legislators are not
to be made the subject of judicial inquiry (in which case the U.S.
Supreme Court held that matters which were “implicit”
[Hornbook Law] were made “explicit” by that decision).
It is “implicit” Hornbook Law that a Judge cannot
rezone property. See Day v. City of Los Angeles, 11 Cal. Rptr.
325, 189 Cal.App.2d 415 (1961).
The U.S. Supreme Court held in University of
Tennessee _v. Elliott, supra at 799, that where a state
administrative body acting in a judicial capacity has resolved
disputed issues of fact properly before it, which the parties have
had an adequate opportunity to litigate, federal courts in 42
U.S.C. §1983 civil rights cases must give that administrative
body’s fact finding the same preclusive effect to which it would
be entitled in the State’s courts. That holding applies in this
case to the unreviewed fact finding and determination of the
Bettendorf City Council, acting in a quasi-judicial capacity,
voted 5-1 against the proposed Zone Change Ordinance that
would have changed the Planned Parenthood real property
zoning from PUD Zone to C-5 Zone.
Planned Parenthood is attempting to use this Federal
Civil Rights lawsuit to override the effect of the 11™
Amendment upon the City Council’s unreviewed quasi-judicial
fact finding. Planned Parenthood could have, but did not obtain
State judicial review of the specific questions of law which they
raised in the Federal Civil Rights lawsuit. If Planned Parenthood
wanted to nullify and reverse the City Council’s Zoning
decision, they were under an obligation to appeal the matter
within the State Court System, as provided by the
11™ Amendment and Iowa State Law.
The fact that Planned Parenthood chose not to seek state
™ -
Ee nye ee
ant saa
saciiiatileee ene a hia ce ee ed Pe a ee ee 2h th hv barr oa RS ATMS
yy.
court review is immaterial. What is key is that: (1) Planned
Parenthood had an opportunity to fully litigate all issues:
(2) immediate state judicial review of said administrative action
was available; and (3) the unreviewed City Council quasi-
judicial fact finding decision and order has now become final and
fully enforceable under Iowa law. Said fact finding decision and
order has a preclusive effect under Iowa law on federal
plaintiff s constitutional claims asserted herein. See Plough v.
West Des Moines Community School District, 70 F.3d 512 at
516-517 (CA 8™ 1995).
Applying Iowa law, Planned Parenthood is barred from
“switching forums” and relitigating the question of the
constitutionality of the regulatory scheme of the Bettendorf
Zoning Code, having raised this specific question before in the
prior state zone change proceeding, Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 95 L.Ed.2d 1, 107 S.Ct. 1519 (1987).
The U.S. Supreme Court has held that judgments in state
proce: dings must be given both issue and claim preclusion effect
to subsequent actions under 42 U.S.C. §1983 by federal courts.
See, Allen v. McCurry, 449 U.S. 90, 104, 60 L.Ed. 2d 308, 101
S.Ct. 441 (1980) at 104: 4
“There is . . . no reason to believe that Congress
intended [section 1983] to provide a person claiming a
federal right an unrestricted opportunity to relitigate an
issue already decided in state court simply because the
issue arose in a state proceeding in which he would
rather not have been engaged at all.” (Our emphasis. )
See, also, Migra v. Warren City School Dist. Bd. of Ed. 465
U.S. 75 at 77 n.1, 79 L.Ed.2d 56, 104 S.Ct. 892 at 894 n1
(1984) (Parties may not raise in federal court §1983 litigation
issues that could have been litigated in an earlier proceeding).
Both the Allen and Migra decisions support the view that
Congress, in enacting the Reconstruction Civil Rights Statutes,
did not intend to create an exception to general rules of
preclusion, and these considerations apply to quasi-judicial
“it
administrative actions where there has been an adequate
opportunity to litigate. See University of Tennessee, supra, at
pages 796-799.
Il
UNDER THE ROOKER-FELDMAN ABSTENTION
DOCTRINE, A FEDERAL DISTRICT COURT IS
WITHOUT AUTHORITY AND HAS _ NO
JURISDICTION TO REVIEW FINAL
DETERMINATIONS OF STATE JUDICIAL
ACTS, BECAUSE SUCH REVIEW CAN ONLY BE
CONDUCTED BY THE SUPREME COURT.
Dist. of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 75 L.Ed.2d 206, 103 S.Ct. 1303 (1983), reinvigorated
the doctrine in Rooker v. Fidelitv Trust Co., 263 U.S. 413
(1923) (in which the Supreme Court established a jurisdictional
rule which bars lower federal courts from reviewing state court
judgments). See, in this regard, Dubinka v. Judges of the
Superior Court, 23 F.3d 218 at 221, 222 (9™ Cir. 1994). The
Rooker- Feldman rationale is consistent with common-law rules
of preclusion which apply to the fact finding decisions of state
administrative bodies (as here) where adequate judicial review
is available (see University of Tennessee v. Elliott, supra, at
page 799). Thus, this Federal District Court’s review of the
final determinations of the Bettendorf City Council zone change
proceeding is barred.
IV
PLANNED PARENTHOOD DID NOT COMPLY WITH
THE DETERMINATION BY THE DIRECTOROF
STATE HEALTH DEPT. THAT ITS PROPOSED
CLINIC CONSTRUCTION IS SUBJECT TO THE
STATE CERTIFICATE OF NEED (C.O.N.)
STATUTE REQUIREMENTS.
In an earlier case, see Planned Parenthood of Greater
«it.
Towa v. Atchison, 126 F.3d 1042 at 1042-1049 (8™ Cir. Sept.
25, 1997), in which Judge Wolle sat as the Trial Judge,
hereinafter referred to as the “Atchison Case”. Planned
Parenthood had been informed by the Director of the State
Health Dept., Christopher Atchison, that it must comply with
the State Certificate of Need Statute, (enacted in 1977 by the
lowa General Assembly. See 1977 lowa Acts, Ch. 75)
requirements, known as the “C._O.N. process’. In the ten years
prior to the Planned Parenthood case, no similarly structured
health care facility which opened in the State was made to apply
for a Certificate Of Need. The Planned Parenthood facility was
the first “similarly structured health care facility” to provide
abortion services.
The State Health Department, in considering this new
subject-matter for the first time, administratively determined
that, as a matter of State public policy, the introduction of this
additional feature provided cause for a reexamination of the
State Health Department’ s interpretation of the C.O.N. Statute
Planned Parenthood filed its lawsuit against the Director
of the State Health Department of Iowa, a Sovereign State,
pursuant to 42 U.S.C. §1983, but in violation of the
11™ Amendment and Watson v. Buck 313 US. 387, 61 S.Ct.
962 (1941), seeking a declaratory judgment that the Defendants’
reviewability determination unconstitutionally burdened
potential patient’s privacy rights because it was made for the
purposes of, and would have the effect of imposing an obstacle
on access to abortion— the same objection which was used in
Planned Parenthood v. City of Bettendorf
Christopher G. Atchison, in his Capacity as the Director
of the Dept. of Health of the State of Iowa in its Sovereign
capacity, moved the U.S. District Court to dismiss and abstain
from exercising subject matter jurisdiction pursuant to Younger
v. Harris (the Younger-Huffman Abstention Doctrine) ,401
U.S. 37, 27 L.Ed.2d 669, 91 S.Ct. 746 (1971). The U.S.
District Court (with Judge Wolle sitting as the Trial Judge)
improperly rejected the State’s “Sovereignty” claim and
dismissed the Motion, and after a one-day court trial, enjoined
oe
the Defendants from requiring the Plaintiff to comply with the
C.O.N. Statute requirements. The Court of Appeals affirmed
Judge Wolle’s erroneous ruling in 126 F.3d 1042 (8™ Cir. Sept.
25, 1997).
Petitioner Murphy contends that the C.O.N. Statute
was subject to two interpretations, and under Watson v. Buck,
313 U.S. 387, 61 S.Ct. 962 (1941) and the Younger-Huffman
Abstention Doctrine, the Federal Court was required to abstain
and permit the lowa State Supreme Court to decide which
interpretation was correct. Because the State of lowa had
interposed what was an 11™ Amendment Challenge (which
required Planned Parenthood to plead and prove irreparable
harm which was great and immediate), the State Sovereignty
defense was not waived nor could it have been waived by merely
going to trial. Santee Sioux Tribe of Nebraska v. Nebraska,
121 F.3d 427 at 431(C.A. 8™ Aug. 13, 1997). See also Steffel
v. Thompson, 415 U.S. 452, 39 L.Ed.2d 505 at p. 521 and 523,
94 S.Ct. 1209 (1974) which holds that such a judgment is not
Res Judicata. Neither the City of Bettendorf nor Petitioner
Murphy is bound by that Federal determination in a State Court.
One possible interpretation, which might be given by the
Iowa Court in the future, is that it might “save” the C.O.N.
Statute by adopting the interpretation given by the State Health
Department and is binding upon Planned Parenthood in this
case. Petitioner Murphy is justified in relying upon this latter
interpretation in his contention that he has a right to intervene
and correct that erroneous determination of an 11™
Amendment “right” upon appeal. The recent ruling of the
unanimous U.S. Supreme Court in Bogan et al. v. Scott-Harris,
No. 96-1569, _§ U.S. ___, decided March 3, 1998, suggests
that the U.S. District Court was in error in implying an improper
motive on the part of Director Atchison in the Atchison Case,
supra.
eat hi el Tile Ee ei Na ho St
Msi RA eG Sw ES
7
IV(A) THE TEST IN WATSON __V.__BUCK IS
CONTROLLING AND SHOULD HAVE BEEN
APPLIED.
In Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962 (1941),
the U.S. District Court for the Northern District of Florida had
enjoined a Florida State Statute containing a severability clause
which had never been before the Florida Supreme Court for
interpretation. In reversing that judgment and the granting of
the injunction, the U.S. Supreme Court held at pages 401-402
that a state statute which contains a severability clause must be:
“flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence, and
paragraph, and in whatever matter and against
whomever an effort might be made to apply it . . .”
before a federal court _can interfere with the right of the state
court to interpret such legislation.
In such a case it is reversible error for a federal court to
grant an injunction and preempt the state court from its function,
unless the record shows there were “exceptional circumstances
and a clear showing that an injunction is necessary in order to
afford adequate protection of constitutional rights. %
Further, under Watson v. Buck, supra, that “clear showing”
must demonstrate that the danger of irreparable loss “is both
great and immediate.” Otherwise, the defenses must be set up
in the state court even though the validity of the ordinance is
challenged, for there is ample opportunity for ultimate review by
the United States Supreme Court of federal questions. It is
patent upon the face of the record below that the Watson v.
Buck, supra, requirements of “irreparable loss . . . both great
and immediate” have not been established.
= =
IV(B) A NUMBER OF IMPORTANT STATE
INTERESTS ARE INVOLVED IN THE PLANNED
PARENTHOOD FEDERAL CIVIL RIGHTS
LAWSUIT.
This federal case has impaired a number of important
and compelling state interests and mghts of the City of
Bettendorf, Iowa, a Home Rule City.
Unless effective, summary relief is accorded cities
against such unlawful “collateral” attacks in the federal district
court, the City of Bettendorf will sustain the same type of
irreparable harm as that suffered by the State of Ohio in
Huffman v. Pursue Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95
S.Ct. 1200 (1975), and by other cities in similar cases, where
important state laws are prevented from being presented to the
state appeals courts and the U.S. Supreme Court for an
authoritative construction of state law under the federal
Constitution.2/
/ Because of the federal court interference with state appellate
proceedings, in Huffman, the substantive appellate question involving
application of state law (re “closure” of a public nuisance) was never
decided, and could never be presented to the U.S. Supreme Court for
definitive review. Huffman involved the power of a state court to close a
100% continuing public nuisance (obscenity ) (utilizing a remedial approach
acceptable under Red Light Abatement Statutes, where the object is the
reformation of property used to conduct a per se public nuisance
[prostitution]). Because a final state determination on this important legal
issue, regarding the scope of available state remedies, was collaterally
blocked by the federal courts in Huffman. an Ohio appellate determination
on “closure” was unavailable as a precedent for the State of Ohio and for
other state court systems, and the substantive legal issue could not be
reviewed by the U.S. Supreme Court, leaving the “closure” issue, to date,
unsettled across the Nation.
The question of the extent to which the states may exercise the
remedy of “closure” in connection with the exercise of their police power
has arisen in other state cases, with varying results. See State of Idaho ex
rel. Kidwell et al. v. U.S. Marketing, Inc., et al., 102 Idaho 451 (1982),
jur. noted 454 U.S. 1140 (1982), and app. dismissed 455 U.S. 1009 (1982),
in which a unanimous State Supreme Court upheld the constitutionality of
_
IV(C) THE STATE COURT WITH A “DIRECT”
ATTACK ON THE “PENDING” STATE ACTION
PROVIDES A MORE EFFICIENT JUDICIAL
FORUM FOR THE RESOLUTION OF DISPUTES
THAN THE “COLLATERAL” CHALLENGES
BEING ASSERTED IN THE FEDERAL COURT
AGAINST STATE STATUTES AND CITY
ORDINANCES.
The exercise of federal jurisdiction interfering with a
state zoning statute or zoning ordinance is not proper, except
where the challenged law is “flagrantly and patently violative of
express constitutional prohibitions in every clause, sentence, and
paragraph and in whatever manner and against whomever an
effort might be made to apply it.” Watson v. Buck, 393 U.S.
387, 61 S.Ct. 962 (1941).
Without doubt, the U.S. District Court has jurisdiction
in the instant case to decide the question of jurisdiction. U.S. v.
United Mine Workers of America, 330 U.S. 258, 91 L.Ed. 884,
67 S.Ct. 677 (1947). Where, however, a state statute or a city
ordinance involving an “important state interest” is susceptible
of a construction which will render the statute constitutional
one-year closure provision and award of attorney fees against a
pornographic bookstore. Compare. Jurisdictional Question #1 posed in the
Petition for Writ of Certiorari in Cooper v. Mitchell Brothers Santa Ana
Theater et al., No. 81-271, October Term 1980, decided on other grounds
in 454 U.S. 90 (1981), and Jurisdictional Question #1 posed in Cooper v.
Mitchell Bros. Santa Ana Theater et al., No. 82-345. October Term 1982,
denied in 459 U.S. 944 (1982). Because the applicability of “closure” to the
public nuisance abatement process involving pornographic outlets has
never been answered by the U.S. Supreme Court, after a protracted, time-
consuming and expensive abatement procedure in which it was
demonstrated that the defendant Mitchell Brothers had engaged in the
regular, continuous exhibition of obscene films as a course of conduct
continuing over a period of 10 years, the City of Santa Ana was forced to
“throw in the towel” in 1987, and settled the controversy by paying
defendants their attorney’s fees and allowing their pornographic outlet to
continue operations in Santa Ana.
20.
under ‘Middlesex Ethics Comm. v. Garden State Bar Assn.,
457 U.S. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515 (1982), the
federal court must abstain and must allow the matter to be
returned to the state court system for an authoritative
construction by the state court. One of the principle reasons
why this result is mandated is the fact that a federal court lacks
jurisdiction to authontatively construe state legislation, U.S. v.
Thirty-Seven Photographs, 402 U.S. 363, 28 L.Ed.2d 822, 91
S.Ct. 1400 (1971), a task routinely performed by state court.
There is a marked difference in the way in which the
state and federal courts approach the constitutional issue
regarding legislation. In People ex rel. Busch v. Projection
Room Theater, 17 Cal.3d 42 at 56, 130 Cal. Rptr. 328 (1976),
the California Supreme Court noted, at page 336:
Furthermore, the United States Supreme Court
recently emphasized within the foregoing context that
courts have an obligation to construe statutes in such a
way as to avoid serious constitutional doubts .
(Our emphasis. )
and, at page 338:
We are obliged to construe and interpret
legislation in a manner which will uphold its validity.
(Citations). Thus, the courts have held that provision
for a prior adversary hearing may be implied by law in
otherwise silent statutory provisions.”
Additionally, the question as to whether defective federal
and state legislation may be “saved” by statutory construction or
by severance of the defective portion presents important public
policy matters for federal and state governments. See Tilton y.
Richardson, 403 U.S. 672 at 684, 29 L.Ed.2d 790, 91 S.Ct.
2091 (1971), where Chief Justice Burger noted: “ The
cardinal principle of statutory construction is to save and not
destroy.”
bad Vira den
le
The question as to whether a state statute is severable is
more properly a matter for the state court. In a statement
confirming the importance of the “statutory construction” factor
and the right of state courts to interpret city ordinances, this
Court in Metromedia, Inc. v. San Die 0, 453 U.S. 490 at
521 fn.6, 69 L.Ed.2d 800, 101 S.Ct. 2882 (1981) (involving a
direct appeal of a city ordinance after a state court decision by
the California Supreme Court upholding the ordinance as being
constitutional on its face) remanded the case back to the
California Supreme Court for further statuto construction b
the state court, notwithstanding the fact that the U S. Supreme
Court held the ordinance to be unconstitutional on its face.
IV(D) PLANNED PARENTHOOD HAS FAILED TO
STATE A CAUSE OF ACTION UNDER 42 U.S.C.
§1983 IN THAT IT HAS FAILED TO PLEAD AND
PROVE WHY THE PRINCIPLES ESPOUSED IN
WATSON V. BUCK AND HUFFMAN V. PURSUE,
LTD. DO NOT CONTROL SO AS TO REQUIREA
DISMISSAL FOR LACK OF FEDERAL
JURISDICTION.
Under the rationale expressed in Allen v. McCurry, 449
U.S. 90, 60 L.Ed. 2d 308, 101 S.Ct. 44] (1980), and Parratt v.
Taylor, 451 U.S. 527, 68 L.Ed.2d 420, 101 S.Ct. 1908 (1981),
Congress intended to establish federal jurisdiction under
42 U.S.C. §1983 where one of the following three
circumstances is shown to exist: (1) the State substantive law
is facially and totally unconstitutional; (2) the State procedural
law is inadequate to allow full litigation of a constitutional clairn:
or (3) the State procedural law, though adequate in theory is
inadequate in practice.
Here, none of the foregoing apply. As noted by District
Judge Young’s analysis of Parratt supra, in Juncker v. Tinney
IT, 549 F.Supp. 574, the Constitutional question may be
interpreted as neither “abstention” nor “whether the plaintiff has
exhausted his state judicial remedies”, but rather whether the
7
plaintiff has stated a claim upon which relief can be based.
In Vickory v. Walton, 72\ F.2d 1062 (6™ Cir. 1983),
cert. denied in Vickory v. Walton, Sheriff, Butler County, No.
83-2111, 53 L.W. 3237 (1984), a majority of the Justices on a
panel of the Sixth Circuit held that, under Parratt, supra, the
plaintiff must attack the state corrective procedure as well as the
substantive wrong and held that the plaintiff had neither alleged
nor shown any significant deficiency of the state remedy.
Applying the analysis and pleading requirement of the Sixth
Circuit in Vickory v. Walton, supra, to the Statement of Facts
herein, including the impact of the governing rule of law as
expressed in Watson v. Buck, supra, on such facts, it is clear
that Planned Parenthood has neither alleged nor proven a cause
of action under 42 U.S.C. §1983, and the City of Bettendorf
was entitled to a judgment of dismissal for failure to state a
claim upon which federal relief could be granted.
Parratt, supra, bars Federal Plaintiffs from maintaining
their federal civil rights action, because Federal Plaintiffs have
been afforded adequate state remedies: both an appeal of the
City Council action within the state court system and an
opportunity for construction of relevant state laws in the related
state declaratory judgment action Thus they cannot show the
requisite constitutional deprivation.
y
THE PRIVATE RIGHT TO AN ABORTION DOES NOT
JUSTIFY A FEDERALLY MANDATED ZONE
CHANGE AND A FEDERALLY MANDATED
ABORTION FACILITY IN BETTENDORF.
BOTH ISSUES PRESENT “IMPORTANT STATE
INTERESTS” INVOLVING “PUBLIC MORALS”
FOR A DETERMINATION BY A STATE COURT.
The private right to an abortion does not justify the
mandating of a zone change by a federal judge and the
mandating of an abortion facility in Bettendorf, lowa. The City
of Bettendorf is a Home Rule City endowed with all of the
i
7
H
ons
Sovereign Rights of the State of lowa. If an abortion facility is
to be constructed in Bettendorf, Iowa, that matter is for the
State of Iowa acting by and through its State Legislature and
State Judiciary. See the discussion of Home Rule in Goodell, et
al. _v. Humboldt County, Towa, et al, 1998 1A 36
<http://www.versuslaw.com> and the Iowa Constitution,
Article II, §38A and §39A.
VI
“PRIVATE MORALITY” AND “PUBLIC MORALITY”
ARE “CONCEPTS” WHICH ARE WORLDS
APART. THE LEGAL DISTINCTION BETWEEN
A “PRIVATE” RIGHT TO AN ABORTION AND
A “PUBLIC” RIGHT TO AN “ABORTION
CLINIC” IN EVERY NEIGHBORHOOD [S
CLEAR AND MUST BE STRICTLY ADHERED
TO.
See, by analogy, the public policy restraints imposed
upon pornography, Rex v. Curl, 2 Strange 789 (1727); Louis B.
Schwartz, co-reporter of the Model Penal Code, explaining the
“public morals” function (obscenity proscription) in 63
Columbia Law Review, “Morals Offenses and The Model
Penal Code” at pages 671, 672 and 681. Concerning the power
of government to regulate matters relating to “public morals”
and power to say what is offensive to public morality, the
members of the U.S. Supreme Court, sitting in Mugler y.
Kansas, 123 U.S. 623 (1887) said:
“The power to determine such questions (what is
offensive to public morality) so as to bind all, must exist
somewhere; else society will be at the mercy of the few,
who, regarding their own appetites or passions, may be
willing to imperil the peace and security of many,
provided only they are permitted to do as they please.
Under our system, that power is lodged in the legislative
branch of government. It belongs to that department to
-24-
exert what are known as police powers of the state, and
to determine primarily, what measures are appropriate
or needful for the protection of the public morals, the
public health, or the public safety). . .” (Qur
emphasis. )
How can parents instruct their offspring that “abortion” is an
“abomination” and “socially abhorrent” when “society” in the
form of a federal court is permitted to “mandate” a zone change
to_ accommodate the creation of an abortion clinic in a local
neighborhood so that a private “sinner” may not be subjected to
the inconvenience of a 50 mile trip to an existing facility! At the
very least, the State of lowa has an 11™ Amendment right to
keep an abortion clinic out of a residential neighborhood!
Vil
STANDARD FOR GRANTING INTERVENTION AS OF
RIGHT.
Intervention as of right pursuant to Federal Rule of
Civil Procedure 24(a)(2) requires a showing of the following
four elements: (1) the proposed intervener possesses a
cognizable interest in the subject matter of the litigation; (2) the
cognizable interest may be impaired as a result of the litigation;
(3) the cognizable interest may not be adequately protected by
the existing parties to the litigation; and (4) the motion to
intervene must be timely under the circumstances of the case.
See, Chiglo v. City of Preston, 104 F.3d 185, 187 (8™ Cir
1997): U.S. v. Union Elec. Co., 64 F.3d 1152, 1157-1158 (8"™
Cir.1995); Nash v. Blunt, 104 F.R.D. 400, 403-404 (W.D. Mo.
1992), affirmed in African American Voting Rights Legal
Defense Fund, Inc. v. Blunt, 507 U.S. 1015 (1993).
When evaluating the four elements for intervention,
courts resolve all doubts in favor of the proposed intervener.
See Sierra Club v. Robertson, 960 F.2d 83, 86 (8™ Cir. 1992).
This serves the underlying purpose of Intervention which is to
liberally construe circumstances to permit intervention so that
EE EE
x.
disputes can be resolved in a single proceeding rather than
risking prolonged, or piecemeal, litigation. See, Arkansas Elec.
Energy Consumers v. Middle S. Energy, Inc., 772 F.2d 491,
404 (8th Cir. 1985) (liberally construed); Nuesse v. Camp, 385
F.2d 694, 700 (D.C. Cir. 1967) (avoid lengthy and piecemeal
litigation). As shown below, Petitioner Murphy amply satisfies
the above four elements.
Vill
PETITIONER MURPHY, BY VIRTUE OF HIS STATUS,
AS AN OWNER OF REAL PROPERTY WITHIN
200 FEET OF THE PLANNED PARENTHOOD
PROPERTY, POSSESSES A COGNIZABLE
INTEREST IN THE DENIAL OF THE
APPLICATION FOR A ZONE CHANGE BY THE
BETTENDORF CITY COUNCIL.
“The court should be mindful that ‘[t]he “interest” test
is primarily a practical guide to disposing of lawsuits by
involving as many apparently concerned persons as is
compatible with efficiency and due process.” Id, at 1163,
quoting, S.E.C. v. Flight Transp. Corp., 699 F.2d, 943, 948
(8th Cir. 1983).
The interest of Petitioner Murphy is four fold:
First: Under his “vested rights” under the Iowa
Constitution, Petitioner has a legally protectable, direct and
substantial interest in defending the legality and constitutionality
of the Bettendorf City Council’s denial of the Planned
Parenthood zone change application under Iowa State Law
pursuant to the successful “protest” exercised by 20% of the
adjacent property owners under their “vested rights” set forth in
§24.3 and §24.4 of the Bettendorf Zoning Ordinance. Under
§24.4, six members of the Bettendorf City Council have not
voted for the Zoning Amendment. Therefore, under Iowa law,
such amendment cannot become effective.
Because Petitioner’s Interest is a vested property nght,
protected by the Iowa Constitution, he also has Article 3
7 es
“standing” to sue and defend this “states” right in the absence of
the Defendant City of Bettendorf, where the City of Bettendorf
does not appeal, Nemmers v. City of Dubuque. Iowa, 716 F.2d
1194 (1983).
Second: Planned Parenthood has not complied with the
State of lowa C.O.N. Statute enacted in 1977 by the lowa
General Assembly. See 1977 Iowa Acts, Ch. 75. Petitioner
Murphy contends that neither he nor the City of Bettendorf is
bound by the erroneous decision in Planned Parenthood of
Greater _lowa_v. Atchison, supra, and that the City of
Bettendorf should have raised that error and the 11"
Amendment defense. Petitioner Murphy has raised both
defenses in this appeal. The 11‘ Amendment defense was not
waived by going to trial, nor could it be. Santee Sioux Tribe of
Nebraska v. Nebraska, 121 F.3d 427 at 431 (C.A.8™ Aug. 13,
1997) (Hansen and Gibson, with McMillian dissenting).
Third: Petitioner has an economic and environmental
interest in the adjacent real estate within 200 feet of the Planned
Parenthood parcel which will suffer a potential loss in the Fair
Market Value of such property by virtue of the proposed
abortion clinic and damage to the environment (public morals)
by virtue of the “scandal-giving” presence in the neighborhood
of a clinic that performs abortions, which suggests to children
and those living in Petitioner Clarence Murphy’s Rental
Apartments that, in the Judeo-Christian culture, there is nothing
immoral in undergoing an abortion, and that an abortion is not
forbidden by the Natural Law as codified in the Commandments
given to Moses.
Finally: When it is shown, as here. that the City of
Bettendorf, the governmental party to the litigation is not
protecting the interests of the citizens by failing to take the
jurisdictional issue which is raised by the 11™ Amendment, to
the U.S. Supreme Court, then intervention by those citizens is
proper. See Chiglo v. City of Preston, 104 F 3d 185, 187 (8™
Cir. 1997). Id. at 188.
As a specific example of a situation where citizens could
intervene to protect the public interest, the 8™ Circuit cited
ee
NYANUE’S! “HH
e273 @
Yniguez v. State of Arizona, 939 F.2d 727 (CA 9, 1991) with
approval in Chiglo v. City of Preston, 104 F.3d 185 at 189 (8™
Cir. 1997). In Yniguez, the Court granted intervention to
vindicate the public interest in seeing the state’s law defended
when the “governor failed to appeal from {a] judgment
invalidating [an] initiative measure [where the]; governor had
previously expressed political opposition to the measure.” Id.
at 189, citing, Yniguez, 939 F.2d at 737. On March 3, 1997, a
unanimous U.S. Supreme Court reversed Yniguez in Arizonans
for Official English and Robert D. Park, Petitioners y.
Arizona,520U.S.___ (March3, 1997), and on March 4, 1998,
cited with approval its decision in Yniguez, supra, at Point II]
of the majority opinion of the U.S. Supreme Court in Steel Co.
v. Citizens for a Better Environment. om * See
140 L.Ed.2d 210, = S.Ct. (March 4, 1998), reaffirming
the rule of law that, “on every . . . appeal, the first and
fundamental question is that of jurisdiction . . . of the court
from which the record comes.” See also, Nash v. Blunt. supra,
and Mille Lacs Band of Chippewa Indians v. Minnesota. 989
F.2d 994, 1001 (8™ Cir. 1993)
IX
PETITIONER’S MOTION IS TIMELY UNDER THE
CIRCUMSTANCES.
The “general rule [is] that a post-judgment motion to
intervene is timely if filed within the time allowed for filing an
appeal” (Our emphasis). Yniguez, supra, 939 F.2d at 734.
Given the circumstances of this case, that rule must be applied
here:
First, Petitioner Murphy had a right to believe that the
City of Bettendorf would discharge its duty to defend the laws
of the State of Iowa. That duty is grounded on the 11™
Amendment claim that the U.S. District Court does not have
subject matter jurisdiction of this very important State interest.
Second, Petitioner Murphy had no way of determining
that a defense on Appeal would not be offered by the City of
USSSSSSS TIS
~.
Bettendorf, until after the February 12, 1998 Order —
Judge Wolle improperly used his power: to assess
attorney's fees. His conduct in this case (failure to abstain,
resisting Petitioner’s valid claims, refusing to hold oral
argument) and the other two Planned Parenthood cases (failure
to abstain; refusing to recuse himself) is evidence of an improper
bias and the very reason for the adoption of the 11™
Amendment See Appendix B to this Petition.
X
MEEK V. METROPOLITAN DADE COUNTY, THE SOLE
AUTHORITY CITED BY JUDGE WOLLE IN
DENYING PETITIONER’S MOTION TO
INTERVENE, DOES NOT SUPPORT HIS
FINDING ON “TIMELINESS”. MEEK
CONCLUDED THAT SUCH A DENIAL ON
“TIMELINESS” GROUNDS WOULD BE AN
ABUSE OF DISCRETION.
Instead of granting one of the alternative motions (with
respect to time), U.S. District Judge Wolle declined both of the
proposed Orders which were submitted and, instead, filed his
own Order (see #57, PA 490, v.3) which, in a cursory fashion,
denied Clarence Murphy’s Motion to Intervene as being
“untimely”, citing Meek v. Metropolitan Dade County, 985
F.2d 1471, 1478-79 (11™ Cir. 1993) as Judge Wolle’s sole
authority. The facts in the Meek case do not support the
Court’s finding on “timeliness”. In that case, the Meek Court
concluded that such a finding would be improper:
“Therefore, based on our review of the totality of
circumstances in this case, we conclude that the denial
of intervention on timeliness grounds would have been
an abuse of discretion”. (Our emphasis. )
Clarence Murphy’s “Memorandum in Support of
Motion to Intervene” at page 4 cited Chiglo v. City of Preston,
- 29.
104 F.3d 185 at 189 (8™ Cir. 1997) as being the controlling
precedent. Chiglo, in turn, cites the Meek case and Yniguez v.
State of Arizona, 939 F.2d 727 (CA 9 1991) as being apposite.
XI
THAT PART OF JUDGE WOLLE’S ORDER OF APRIL
21, 1998, READING, “MOREOVER, MURPHY
HAS CITED NO CONTROLLING
CONSTITUTIONAL PROVISION, STATUTE OR
CASE LAW SUPPORTING HIS MOTION TO
ENTER THE LAWSUIT AFTER JUDGMENT
WAS ENTERED” IS PATENTLY FALSE.
In the light of the pleadings heretofore filed in this case,
(see Exhibits 1 through Exhibit 10 to Clarence Murphy’s
Renewed Request for Oral Argument Pursuant to Local Rule
14[{c] and Good Cause Shown on Issues of Intervention, Res
Judicata and Lack of Subject Matter Jurisdiction [see #68,
PA 548-551] in support of Clarence Murphy’s Motion to
Intervene), and the U.S. District Court’s repeated refusal to
grant oral argument without further explanation, Judge Wolle’s
May 11, 1998 Order is incomprehensible. See, also, the “Issues
on Appeal” at paragraph 19 of the Complaint in Intervention (at
#52, PA 403-408, v.3). All of the facts of record support the
Opposite conclusion #
1. The U.S. Supreme Court has held to the contrary in United
Airlines, Inc. v. McDovald, 432 U.S. 385, 396, 53 L_E.2d 423, 97
S.Ct. 2464 (1977), (holding a motion to intervene for purposes of
taking an appeal was timely because it was filed within the period
in which the parties could have taken ar appeal), cited with
approval by the 8™ Circuit in Jenkins v. State of Missouri, 967
F.2d 1245, 1248 (CA 8™ 1992).
2. The 8™ Circuit has endorsed the procedure employed by Clarence
Murphy. See Jenkins v. State of Missouri, supra.
3. If this Court’s Judgment is permitted to stand, Clarence Murphy
will have been divested of his state “vested rights” under the Iowa
8.
Judge Wolle’s injunction is a clear example of an
unauthorized collateral federal appeal which substantially
disrupts and interferes with the state appellate procedures which
are entrain. See footnote 3 at page 18, supra.
Dated: January 28, 1999
Respectfully submitted,
i ne waa
James J. Clangy, Attorney ¢t\Law
C3Hfornia State Bar No. 24946
055 La Tuna Canyon Road
La Tuna Canyon, California 91352-2221
(818) 352-2069 Fax (818) 352-6549
for Petitioner Clarence Murphy.
Constitution to “protest” under Bettendorf Zoning Ordinance
§24.3 and §24.4.
4. Clarence Murphy’s loss of a “vested right” fulfills all of the
requirements for “standing”, see Lujan v. Defenders of Wildlife,
—_US.__, 119 L-E.2d 331, 112 S.Ct. 2130, 2144 (1992).
5. Clarence Murphy's loss of a “vested right” fulfills all of the
requirements for Intervention. see Meek v. Metropolitan Dade
County, 985 F.2d 1471 at 1488 (11™ Cir. 1993) (a complainant
in intervention who shows standing is deemed to have a
sufficiently substantial interest to intervene).
6. Clarence Murphy has both pleaded and established standing.
7. As a matter of Law, Planned Parenthood would not be prejudiced
by the granting of the motion to intervene. Clarence Murphy
merely stands in the stead of the City of Bettendorf on Appeal.
8. Planned Parenthood, by not naming Clarence Murphy in its
Federal Civil Rights lawsuit. has violated the Equitable Clean
Hands Doctrine.
9. By its decision not to appeal, the City of Bettendorf, which
heretofore has been acting on Murphy’s behalf as the parens patria
(see Clarence Murphy’s Confidential letter to the Bettendorf City
Council, dated April 3, 1998 at [#58] PA 498-501) has
endangered Clarence Murphy’s cognizable interest, which
requires that he now intervene and appeal.
CC SE'"=“ ll ZS
APPENDIX A: ORDERS
ORDER OF THE US. DISTRICT COURT IN PLANNED
PARENTHOOD, ETC., V. CITY OF BETTENDORF. IOWA, NO. 3-97-
CV-80056, DATED DECEMBER 8, 1997.,.................. A-1
ORDER OF THE US. DISTRICT COURT IN PLANNED
PARENTHOOD, ETC, V. CITY OF BETTENDORF, IOWA, NO. 3-97-
CV-80056, DATED MARCH WOU hebrkenescccsoe. co” A-3
ORDER OF THE US. DISTRICT COURT IN PLANNED
PARENTHOOD, ETC, V. CITY OF BETTENDORF, IOWA, NO. 3-97-
CV-80056, DATED APRIL PON 6a es 040 ob O6as eden... A-6
ORDER OF THE US. DISTRICT COURT IN PLANNED
PARENTHOOD, ETC, V. CITY OF BETTENDORF, IOWA, NO. 3-97-
CV-80056, DATED MAY 11, 1998., A-9
eae, eR Oe BRR NE aie gira wo
ORDER OF THE US. DISTRICT COURT IN PLANNED
PARENTHOOD, ETC,, V. CITY OF BETTENDORF, IOWA, NO. 3-97-
CV-80056, DATED JUNE 1, 1998., A-I1
ne SS ee ee ye Be oa ee
ETC., NO. 98-2825SID, DATED JULY ia A-12
ORDER OF THE U.S. COURT OF APPEALS FOR THE 8™ CIRCUIT
IN IN RE CLARENCE MURPHY, ETC,, NO. 98-2825SID, DATED
i aise: ee i ee Seni A-14
NOTICE OF ORDER ENTERED BY U.S. SUPREME COURT
ASSOCIATE JUSTICE CLARENCE THOMAS, IN JN RE
CLARENCE MURPHY, ETC, APPLICATION NO. A-501, DATED
DECEMBER 21, FR i once Weneedey sy Say eee A-16
NOTICE OF ORDER ENTERED BY U.S. SUPREME COURT
ASSOCIATE JUSTICE CLARENCE THOMAS, IN CLARENCE j
MURPHY, PETITIONER Y. PLANNED PARENTHOOD ETC,
APPLICATION NO. A-502, DATED DECEMBER 31, 1998.,. A-18
A-|l
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
DES MOINES, IOWA
PLANNED PARENTHOOD
) 97DEC-8 PM2:11
OF GREATER IOWA, INC..
CLERK, U.S. DISTRICT COURT
) SOUTHERN DISTRICT OF IOWA
Plaintiff,
)
VS.
) NO. 3-97-CV-80056
THE CITY OF BETTENDORF.
IOWA, ) ORDER
Defendant. )
On February 6, 1996, Vision Development, Inc.
petitioned defendant to rezone property owned by plaintiff. On
March 19, 1996, defendant rejected the petition. In this action
brought pursuant to 42 U.S.C. section 1983, plaintiff seeks
declaratory and injunctive relief. It contends defendant’s actions
concerning the zoning of the property violate plaintiff s property
rights and the privacy rights of its patients. Before the court for
ruling are defendant’s two motions for partial summary
judgment, motions that the court heard during a telephone
conference hearing on November 26, 1997.
Defendant contends in one motion that plaintiff's suit is
barred because plaintiff did not timely file a petition for writ of
certiori in the Iowa State District Court.
Defendant asks the court in its second motion to
conclude as a matter of law that when considering an application
for approval of a PUD preliminary site plan, it is appropriate for
defendant to consider the economic impact on property values
of adjacent properties and the neighborhood.
Defendant’s first motion has no merit because plaintiff
a,
Le ee
A-2
isnotrequiredtoexhauststatecourtremediesbefore bringing
asuitunder42 U.S.C. §1983 in federal court. See Edwards v.
Balisock, 117 S.Ct. 1584, 1589 (1997).
The court denies defendant's second motion because the
Federal Rules of Civil Procedure do not authorize the court to
issue advisory opinion of the kind defendant here seeks. The
court will make findings of fact and conclusions of law only
after both parties have presented their evidence at trial, now
scheduled to be held in Davenport on January 14, 1998.
Defendant’s motions for partial summary judgment are
denied.
IT IS SO ORDERED.
Dated this 8" day of December, 1997.
Cc
“
CHARLES R. WOLLE. JUDGE
UNITED STATES DISTRICT COURT
A-3
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
DES MOINES, IOWA
PLANNED PARENTHOOD )
OF GREATER IOWA, INC.. 98 MAR 17 PM 4:40
)
P laintiff. cree pauuncr er toe A
)
VS.
) NO. 3-97-CV-80056
THE CITY OF BETTENDORF,
IOWA, ) ORDER
Defendant. _)
The City of Bettendorf, Iowa (City) filed on February
19, 1998, a motion asking this court to reconsider its Findings
of Fact and Conclusions of Law, filed on February 12, 1998,
that granted the plaintiff Planned Parenthood of Greater, Iowa.
Inc. (plaintiff) injunctive relief it had sought. On March 13,
1998, the court held a hearing by telephone conference call with
counsel and allowed the attorneys to present oral argument and
to file after the hearing further written support for their positions
on each issue the motion to reconsider presents.
On several issues, the parties are in agreement. Of most
importance, plaintiff does not object to having the court modify
the injunction to allow the City to enforce its zoning laws
against the plaintiff neutrally and to the same extent as they are
legitimately enforced against other medical clinics operating or
being operated in C-5 zones. Specifically, the plaintiff does not
object to having this court modify the injunction to require the
plaintiff to develop its planned clinic consistent with the site plan
that plaintiff submitted on December 17, 1996, as part of its
PUD application. The plaintiff also states it does not object to
the modification of conditions of the site plan that is explained
A-4
in a letter from the City’s attorney to plaintiff's counsel dated
March 11, 1998 (attached to plaintiff's response and now
attached to this order as Addendum A). Consequently, this
court’s declaratory judgment and decree filed on February 12,
1998, is modified to substitute for paragraph 3, page 28, the
following paragraph:
3. The court now permanently enjoins the
defendant City of Bettendorf, lowa, from enforcing its
zoning ordinances on the site where the plaintiff
proposes to construct a medical clinic, in any manner
that prevents the clinic from being constructed and
operated. That site is now declared to be zoned C-5, a
classification appropriate for the clinic plaintiff plans to
operate. The City may enforce its zoning laws against
the plaintiff neutrally and to the same extent as they are
legitimately enforced against other medical clinics
operating or being developed in C-5 zones. The City
may require the plaintiff to develop its clinic consistent
with the December 17, 1996, site plan that the plaintiff
submitted to the City as part of its PUD application.
The City may enforce a modified set of conditions set
forth on Addendum A attached to this order.
The city also seeks to impose on the plaintiff the
condition that a six foot high wrought-iron fence be constructed
around the entire perimeter of the property. The plaintiff
objects, and the court will not modify its injunction and decree
to require such a fence. Nothing in this case suggests that other
medical clinics within C-5 zones are required to have such
fences; requiring sucha fence treats the plaintiff differently than
other persons operating medical clinics. The City has made no
evidentiary showing of a legitimate governmental interest in
requiring such a fence around this facility. Requiring such a
wrought-iron perimeter fence is not a neutral application of the
City’s zoning laws.
The City’s motion also asks the court to make different
A-5
and expanded Findings of Fact. The court agrees that City
Administrator Ploehn did not testify and the former City
employee Salem was not then “acting director in the
development department.” The declaratory judgment and
decree filed on February 12, 1998, is modified to reflect those
corrections. The court does not agree with the other findings of
fact the City asks this court to make upon reconsideration. The
court may expand its Findings of Fact at the time it rules on the
plaintiff's application for attorney’s fees, now scheduled to be
heard by telephone conference call the court will place to
counsel of record at 8:00 a.m. on Tuesday, March 24, 1998.
IT IS SO ORDERED.
Dated this 17™ day of March, 1998.
/S/
CHARLES R. WOLLE, JUDGE
UNITED STATES DISTRICT COURT
A-6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
DES MOINES, IOWA
PLANNED PARENTHOOD
) 98APR21 PM 2:05
OF GREATER IOWA, INC.,
CLERK, U.S. DISTRICT COURT
) SOUTHERN DISTRICT OF IOWA
Plaintiff,
)
) NO. 3-97-CV-80056
VS.
THE CITY OF BETTENDORF,
IOWA, ) ORDER
Defendant. _)
Trial in this case was held on January 20 and 21, 1998.
On February 12, 1998, this court filed its declaratory judgment
and decree in this case, captioned Findings of Fact and
Conclusions of Law. The next day the clerk of court entered
judgment in favor of plaintiff and against defendant. On March
17, 1998, on motion of the defendant, the court modified several
provisions of the February 12 decision and scheduled a hearing
on the issue of attorney fees. Counsel then informed the court
they had resolved the fee issue, so the hearing was canceled. No
party has requested additional rulings.
On Apri! 13, 1998, Clarence Murphy filed a series of
motions, including a motion to intervene, a motion to dismiss
this case for lack of subject matter jurisdiction, and a motion for
leave to file a brief in excess of fifteen pages.
The court allows the motion to file an overlength brief.
The court denies the motion to intervene.
The court denies other motions Clarence Murphy has
filed; they are moot.
Federal Rule of Civil Procedure 24 allows a party to
ener mma
A-7
intervene upon “timely application” when the applicant claims an
interest relating to the suit and the suit’s disposition may impair
the applicant’s ability to protect that interest. Courts generally
disfavor intervention after entry of judgment because it “tends
to foster delay and to prejudice adjudication of the ri ghts of the
original parties.” 6 Moore’s Federal Practice, §24.24/[3]
(Matthew Bender 3d edition). The United States Court of
Appeals for the Eleventh Circuit has articulated a “timeliness
analysis” in considering motions to intervene. See Meek y.
Metropolitan Dade Co., 985 F.2d 1471, 1478-79 (11™ Cir.
1993) (factors to be considered include the length of time the
applicant knew of his interest in the case before petitioning to
intervene and the Prejudice intervention would cause Parties).
The court has applied those factors to applicant
Murphy’s application and concludes he did not timely file his
motion to intervene.
In his lengthy motion and supporting memorandum.
Murphy has not provided good cause why he waited until after
judgment to move to intervene. He plainly had notice of the
lawsuit; indeed he testified before the defendant’s City Council
as an owner of the property adjacent to the building site where
the plaintiff Planned Parenthood intends to construct its clinic.
Murphy really offers no tenable reason why he waited until after
final judgment to seek to intervene in this case. Moreover,
Murphy has not demonstrated that his interests would be
adversely affected if his motion to intervene is denied. He has
not demonstrated that the defendant failed to protect his
interests satisfactorily, nor that this court lacked jurisdiction to
hear and decide the issues in this lawsuit. He has cited no
controlling constitutional Provision, statute, or case law
supporting his motion to enter this lawsuit after judgment was
entered. |
This motion to intervene should be viewed against the
backdrop of an earlier lawsuit this plaintiff filed against the
Director of the Iowa Health Department. Planned Parenthood
of Greater Iowa v. Atchison, 126 F.3d 1042 (8™ Cir. 1997).
Murphy here even contends that the Court of Appeals
A-8
“wrongfully decided” that case, arguing the case should have
been decided by Iowa and not federal courts. The United States
Court of Appeals for the Eighth Circuit affirmed this court’s
decision that defendant Atchison, acting on behalf of the State
of lowa, had violated the United State Constitution in requiring
the plaintiff to seek a certificate of need before constructing its
medical facility in eastern lowa. The plaintiff has already fought
successfully to prevent the State and City of Bettendorf from
preventing its construction and operation of a medical clinic.
Unfair prejudice to the plaintiff would result from the late
intervention and continued litigation Clarence Murphy proposes
in his motion.
The motion to intervene is denied.
All other motions are denied as moot.
IT IS SO ORDERED.
Dated this 21°" day of April, 1998.
/s/
CHARLES R. WOLLE, JUDGE
UNITED STATES DISTRICT COURT
A-9
iN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
DES MOINES, IOWA
PLANNED PARENTHOOD )
OF GREATER IOWA, INC., oe RAY 11 Pee3-s7
)
Plaintiff, SOUTHERN DISTRICT OF 1OWA
)
Vo.
) NO. 3-97-CV-80056
THE CITY OF BETTENDORF,
IOWA, ) ORDER
Defendant. )
On April 30, 1998 Clarence Murphy filed a motion to
dismiss, a motion to reconsider findings of fact and order filed
April 21, 1998, and supporting documents.
The court has considered the filings. The motions are
denied for several reasons.
First, Clarence Murphy is not a party. His motion to
intervene was much too late, filed after this case had been tried
and concluded. Murphy presents no excuse for his tardy
request.
Secondly, this court had jurisdiction of the parties and
subject matter. Plough v. West Des Moines Community
School Distr., 70 F.3d 512 (8™ Cir. 1995), relied on by
Murphy, is inapposite. Here, unlike the Plough case, no agency
like the Iowa State Board of Education made factfindings while
acting in a judicial capacity. The plaintiff here had no full and
fair opportunity to present its issues to a judicial body before
filing its complaint in this court.
Finally, I find no merit in Murphy’s request that the
| court apply an abstention doctrine. I previously ejected
defendant’s request that I abstain from hearing and deciding
A-10
issues framed by the pleadings.
Murphy’s motions are denied.
IT IS SO ORDERED.
Dated this 11 day of May, 1998.
'S
CHARLES R. WOLLE. JUDGE
UNITED STATES DISTRICT COURT
A-1]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
DES MOINES, IOWA
PLANNED PARENTHOOD
) 98 JUN-1 PM 4:45
OF GREATER IOWA, INC..
CLERK, U.S. DISTRICT COURT
) SOUTHERN DISTRICT OF IOWA
Plaintiff,
)
VS.
) NO. 3-97-CV-80056
THE CITY OF BETTENDORF.,
IOWA, ) ORDER
Defendant )
On May 22, 1998, Clarence Murphy filed a document
captioned “renewed request for oral argument pursuant to Local
Rule 14(c) and good cause shown on issues of intervention, res
judicata and lack of subject matter jurisdiction”.
The request is denied.
IT IS SO ORDERED.
Dated this 1°" day of June, 1998.
Is
CHARLES R. WOLLE, JUDGE
UNITED STATES DISTRICT COURT
A-12
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 98-2496SID
*
Planned Parenthood, of
Greater Iowa, Inc.,
. Appeal from the
United States District
Court for the Southern
District of lowa
+
7 Appellee,
ie
+ + & ©
City of Bettendorf, IA;
Defendant,
Clarence Murphy, Moving
Party is an adjoining property
owner of a twelve-plex
apartment known as 2655
Tech Drive, Bettendorf, IA,
Appellant
No. 98-2825
In Re: Clarence Murphy,
Moving Party is an adjoining
property owner of a twelve-
plex apartment known as
2655 Tech Drive,
Bettendorf, 1A,
+ Fe £¢ *&* Fe ee He He hUehUC HhUC(C HhC HhC HhC<C<C H—C<—CNH!—~C~S
+ + &
Petitioner.
JUDGMENT
The petition for writ of mandamus in No. 98-2825 is
A-13
denied. The judgment of the district court in No. 98-2496 is
summarily affirmed.
July 23, 1998
Order Entered at the Direction of the Court
/s/
Michael E. Gans
Clerk, U.S. Court of Appeals, Eighth Circuit
A-14
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 98-2825S1D
In re:
Clarence Murphy, Moving *
Party is an adjoining . Order Denying Petition
property owner of a twelve- * for Rehearing and
plex apartment know as . Suggestion for
2655 Tech Drive, ° Rehearing En Banc
Bettendorf, IA, °
Petitioner. a
The suggestion for rehearing en banc is denied. The
petition for rehearing by the panel is also denied.
October 2, 1998
Order Entered at the Direction of the Court
S
Michael E. Gans
Clerk, U.S. Court of
Appeals, Eighth Circuit
A-15
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 98-2496SID
Planned Parenthood, of .
Greater Iowa, Inc.,
‘ Order Denying Petition
for Rehearing and
Suggestion for
\ Rehearing En Banc
+
Appellee,
*
Clarence Murphy,
Appellant.
The suggestion for rehearing en banc is denied. The
petition for rehearing by the panel is also denied.
October 7, 1998
Order Entered at the Direction of the Court
</
Michael E. Gans
Clerk. U.S. Court of Appeals, Eighth Circuit
A-16
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543
WILLIAM K. SUTER AREA CODE 202
CLERK OF THE COURT 479-3011
December 21, 1998
Mr. James J. Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, CA 91352-2221
In Re Clarence Murphy
Application No. A-50]
fd
lal
Dear Mr. Clancy:
[he application for an extension of time within which to
file a petition for a writ of certiorari in the above entitled case
has been presented to Justice Thomas, who on December 21,
1998, extended the time to and including January 28, 1999.
This letter has been sent to those designated on the
attached notification list.
Sincerely,
William K. Suter, Clerk
By /s
Loretta S. Ruffin
Assistant Clerk
A-17
SUPREME COURT OF THE UNiTED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543
WILLIAM K. SUTER AREA CODE 202
CLERK OF THE COURT 479-3011
NOTIFICATION LIS1
Mr. James J. Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, CA 91352-222!
Mr. William R. Stengel Jr.
305 First National Bank
100 Seventeenth Street
Rock Island, IL 61201-8751
Mr. Alan S. Gilbert
8000 Sears Tower
Chicago, IL 60606-6406
Mr. Roger K. Evans
Planned Parenthood Fed. of Am
810 Seventh Avenue
New York, NY 10019
Clerk
United States Court of Appeals fo:
the Eighth Circuit
511 U.S. Court & Customs House
1114 Market Street
St. Louis, MO 63101
A-18
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543
WILLIAM K. SUTER AREA CODE 202
CLERK OF THE COURT 479-3011
December 31, 1998
Mr. James J. Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, CA 91352-2221
Re: Clarence Murphy
v. Planned Parenthood of Greater lowa, Inc.
Application No. A-502
Dear Mr. Clancy:
The application for an extension of time within which to
file a petition for a writ of certiorari in the above-entitled case
has been presented to Justice Thomas, who on December 31,
1998, extended the time to and including January 29, 1999.
This letter has been sent to those designated on the
attached notification list.
Sincerely,
William K. Suter, Clerk
By /s/
Loretta S. Ruffin
Assistant Clerk
A-19
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543
WILLIAM K. SUTER AREA CODE 202
CLERK OF THE COURT 479-3011
NOTIFICATION LIST
Mr. James J. Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, CA 91352-222]
Mr. William R. Stengel Jr.
305 First National Bank
100 17th Street
Rock Island, IL 61201-875]
Mr. Alan S. Gilbert
8000 Sears Tower
Chicago, IL 60606-6406
Mr. Roger K. Evans
810 Seventh Avenue
New York, NY 10019
Clerk
United States Court of Appeals for
the Eighth Circuit
511 U.S. Court & Customs House
1114 Market Street
St. Louis, MO 63101
APPENDIX B
RE MOTION TO RECUSE JUDGE WOLLE
(Reference: Petition for Writ of Mandamus at
page 4)
MOTION OF THE CITY OF BETTENDORF TO RECUSE JUDGE
WOLLE IN PLANNED PARENTHOOD, ETC. V. CITY OF
BETTENDORF, ANN HUTCHINSON, MAYOR OF BETTENDORF.
ETC., NO. 3-96-CV-80184 (RE 90 DAY MORATORIUM PERIOD),
FILED DECEMBER 6, 1996., ............ccccceecces..,.. B-1
RESPONSE OF PLAINTIFF PLANNED PARENTHOOD TO
MOTION OF THE CITY OF BETTENDORF TO RECUSE JUDGE
WOLLE IN PLANNED PARENTHOOD, ETC. V. CITY OF
BETTENDORF, ANN HUTCHINSON, MAYOR OF BETTENDORF.
ETC., NO. 3-96-CV-80184 (RE 90 DAY MORATORIUM PERIOD).,
RP EC PT ee PONEOUUICEhs WO HOSES 06 bE06 5 p06 6046666 ob oenkees B-3
ORDER OF U.S. DISTRICT JUDGE CHARLES R. WOLLE,
DENYING THE MOTION OF THE CITY OF BETTENDORF TO
RECUSE JUDGE WOLLE IN PLANNED PARENTHOOD, ETC. V.
CITY OF BETTENDORF, ANN HUTC HINSON, MAYOR OF
BETTENDORF, ETC., NO. 3-96-CV-80184 (RE 90 DAY
MORATORIUM PERIOD), FILED DECEMBER 9, 1996., .. B-1
EE
B-]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
DAVENPORT, IOWA
Planned Parenthood of Greater ) 96 DEC-6 PM2:27
Iowa, Inc. )
Plaintiff ) SOUTHERN DISTRICT OF IOWA
vs. )
)
The City of Bettendorf ) No. 3-96-CV-80184
Ann Hutchinson, Mayor of ) Motion to Recuse
Bettendorf )
Defendants )
COMES NOW the Defendants and move to recuse
Judge Wolle from the pending lawsuit and in support whereof
states:
; That Judge Wolle forthrightly and of his own volition
voluntarily disclosed to the parties that his wife had in
the past made a donation to Planned Parenthood
($50.00).
That Judge Wolle forthrightly and of his own volition
voluntarily disclosed to the parties that he had purchased
books at a Planned Parenthood used book sale.
That in this case, involving as it does constitutional
issues of women’s rights and protection of the public is
being extensively reported in the media.
4. That under such circumstances it behooves the parties
and the Court not to have even the shadow of a doubt
about impartiality of the Court.
N
os)
WHEREFORE, it is prayed that Judge Wolle be recused,
and the matters of this litigation be heard by another Judge of
Respectfully submitted,
City of Bettendorf
Ann Hutchinson, Mayor
/s/ _
Gregory S. Jager
City Attorney
1609 State Street
Bettendorf, lowa 5:
319/344-4000
/s/
Paul L. Macek
Assistant City Attorn
111 E Third Street
Davenport, lowa 5280]
319/324-1971]
B-3
UNITED STATE DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
PLANNED PARENTHOOD OF
GREATER IOWA, INC.,
Plaintiff
against No. 3-96-CV-80184
IOWA, and ANN HUTCHINSON,
in her capacity as the Mayor of the
City of Bettendorf, lowa
)
)
)
)
)
)
)
THE CITY OF BETTENDORF, )
)
)
)
)
Defendants)
)
PLAINTIFF’S RESPONSE TO
DEFENDANTS’ MOTION TO RECUSE
Plaintiff responds to defendant’s motion to recuse as follows:
l. Chief Justice Rhenquist has admonished that the
duty of a federal judge to preside where there is no basis for
disqualification is “equally as strong,” as the duty to recuse
where there is a basis for disqualification. Laird v. Tatum, 93
S.Ct. 7, 15 (1972).
y J Plaintiff’ s counsel are aware of no authority, and
defendants have cited none, for the proposition that a judge’s
patronage of a business/fund-raising event sponsored by a party
forms a reasonable basis for questioning a judge’s impartiality.
3. Nor are plaintiffs counsel award of authority for
the proposition that spouse’s charitable donations form a
reasonable basis for questioning a judge’s impartiality. Again,
defendants cite none.
B-4
4. There is, however, authority that a judge’s
charitable donations to a university are not areasonable basis for
questioning his impartiality when the university is a party before
the court. Lundé v. Helms, 29 F.3d 367 (8™ Cir. 1994), Wu
v. Thomas, 996 F.2d 271 (11™ Cir. 1993).
5. Accordingly, plaintiff submits that defendants’
motion should be denied.
Respectfully Submitted,
William Stengel
Michele R. McCann
Coyle, Gilman, and Stengel
305 First of America Bank Bld’g.
Rock Island, Illinois 61201
(309) 788-0471
Roger K. Evans
Dara Klassel
Legal Action for Reproductive Rights
Planned Parenthood Federation of America
810 Seventh Ave.
New York, New York 10019
(212) 541-7800
Alan S. Gilbert
David E. Lieberman
Sonnenchein Nath & Rosenthal
: 8000 Sears Tower
Chicago, Illinois 60606-6404
(312) 876-8000
Attorneys for Plaintiff
B-5
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION
FILED
PLANNED PARENTHOOD OF ) PES MOINES, IOWA
GREATER IOWA, INC., | S6DECS PM 49
Plaintiff, CLERK, U.S. DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
VS.
) NO. 3-96-CV-80184
THE CITY OF BETTENDORF,
IOWA, and ANN HUTCHINSON, ) ORDER
in her capacity as the Mayor of the
Mayor of the City of Bettendorf, )
Iowa,
)
)
Defendants.
On this date the court held a hearing on the plaintiff's
request for preliminary injunctive relief.
At the outset of the hearing, I received arguments on
defendants’ resisted motion to have me recuse. | denied the
motion for the reasons stated on the record.
At 11:50 a.m. on Tuesday, December 10, 1996, I will
hold a telephone conference with counsel to discuss scheduling
of trial on the plaintiff's request for permanent injunctive relief.
I will place the call to counsel.
IT IS SO ORDERED.
Dated this 9™ day of December, 1996.
/s/
CHARLES R. WOLLE, JUDGE
UNITED STATES DISTRICT COURT
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.