# Petition for Writ of Certiorari — In re Murphy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1226%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1006 ## Text Buprere Court PILED No. 98- —— ®B1222 un29—p IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 CLARENCE MURPHY, Petitioner, VS PLANNED PARENTHOOD OF GREATER IOWA, INC. Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the 8" 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 NY ov 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 US. 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 F.3d 512 at 516-517(CA8™ 1995) (extending the Huffman Abstention Doctrine to State Administrative proceedings in which important generic quasi-judicial interests are vindicated)? QUESTION I Whether Planned Parenthood’s Civil Rights Complaint has pleaded subject matter jurisdiction under Article 3, §2 of the U.S. Constitution and a nght 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 Parenthood’s request for change of Zone from PUD to C-5S, 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™ i i Amendment and without Due Process of Law as guaranteed by lowa and the U.S. Constitution? QUESTION Il 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 nghts 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 t 4 ; - iii - L.Ed. 2° 308, 101 S.Ct. 441 (1980) and Parratt v. Taylor, 451 U.S. 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 Iowa District Court by writ of certiorari pursuant to Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687 at 692 (Iowa Supreme Court 1980), as a part of the zoning procedures available under the Bettendorf Zoning Ordinance; and the Iowa District Court and the lowa Judicial System stood ready to hear Planned Parenthood’s judicial appeal and all legal and constitutional challenges, and the Iowa 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 Iowa 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 III of the recent opinion of the U.S. Supreme Court in Steel Co. v. Citizens for a Better Environment, US. __, 140 LEd.2d210,__ S.Ct. __ (March 4, 1998). ite 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 City Council’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 precedent” to such an order)? QUESTION Vil 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 Vill 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.3d 185 (8™ Cir. 1997) and Meek v. Metropolitan Dade County, 985 F.2d 1471 (11™ Cir. 19935; 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 nights by the Bettendorf City Attorney. See in this regard, the letter delivered to the City Attorney and City Council on Apmril 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 Iowa 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. District Court below is empowered to rezon Planned Paren ro 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 Iowa, 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 - Vil- 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 Iowa 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 will 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); Jowa Department of Natural Resourses v. Shelley, 512 N.W.2d 579 (lowa 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, 894n.2 TD ee | - 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, AA 403-409, v.3) and Memorandum in Support of Motion to Intervene at pages 4 through 6 (#56, AA 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, AA 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 and 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 - viii - 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 lowa 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 cf 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? 2 are tome ath - ix- QUESTION XVI Whether the City of Bettendorf, Iowa deprived Clarence Murphy of procedural due process in failing to advise U.S. 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, .cccccccccscvveccesccccces i TABLE GP CONTE Es ccccccccccccccccnsccecesees ix pp eT OP ys 8 TT TT. PT eee xi CARs 66006 wet eee be Ucd we dnt desues Cen teed uese xi FEDERAL RULES, STATUTES, ......cccccsccsccess xviii STATE RULES, STATUTES, ......ccccsccccsscvcces xViii TEXTS, LAW REVIEWS, MISCELLANEOUS, ........... xix PETITION FOR WRIT OF CERTIORARI, ........22e0- 1 OPINIONS AND ORDERS, RE JURISDICTION, STATEMENT OF THE CASE, REASONS FOR GRANTING THE WRIT, iit IV(A) 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, .... 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, ......... 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, ..... 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.0.N.) STATUTE REQUIREMENTS, .... THE TEST IN WATSON __V. BUCK IS CONTROLLING AND SHOULD HAVE BEEN *oeeeeeeeeeeneeeeeeneeneeeee *o*#enspeoeeeveeweeeeeeeeeeeeneeeeeee eee *enereeneeeneeeeneeneeeeeeee *“eeeeneene ne eeee IV(B) ANUMBER OF IMPORTANTSTATE INTERESTS ARE INVOLVED IN THE PLANNED PARENTHOOD FEDERAL CIVIL RIGHTS LAWSUIT, ..--ceecccecesseececees eccccce 18 1v(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, ....--eereccccececercrrrre® 19 Iv) 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, ...--eeecceseersrserereres 21 Vv 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, ..----seeeeeererrreres 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, ...------ ecccccces 23 - Xii - Vil STANDARD FOR GRANTING INTERVENTION AS OF RIGHT, ..ccccccccccsccvecccesesees 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, .....ccccscccccccece 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, Dek hf, Serre rer ene 27 ~ xiii - Arkansas Elec. Energy Consumers ¥. Middle S. Energy, Inc., 772 F.2d 401, 404 (8th Cir. 1985)... 0-2 eee eee 25 Bd. of Superv. Carroll Cty. v. Chicago & N.W. Transp. Co.., 260 N.W.2d 813 (Iowa 1977), ....- 66 sere on 9 Bogan et al. v. Scott-Harris, No. 96-1569, US.__., decided March 3, 1998, ..... 12, 16 Boomhower v. Cerro Gordo County Bd. of Adjustment, 163 N.W.2d 75, at 77 (lowa 1968), ...------- eee 00> eye 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 Se 9 City of Grimes v. Polk County Board of Supervisors, 495 N.W.2d 751 (lowa 1993), -..---- 6-2 5002 a 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), ..... 19 Cooper v. Mitchell Bros. Santa Ana Theater et al, No. 82-345, October Term 1982, denied in 459 U.S. 944 (1982), .....----- Peet. 19 Curtis v. Board of Supervisors, 270 N.W.2d 447 (lowa 1978), ...---- +. ae x Day v. City of Los Angeles, 11 Cal.Rptr. 325, 189 Cal.App.2d 415 (1961), ....------ 12 Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 L.Ed.2d 206, 103 S.Ct. 1303 (1983) (see Rooker-Feldman Abstention),........-------:: 3, 6,14 - xiv - Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221, 222 (9™ Cir. 1994) ............. ... 14 Goodell, at al. v. Humboldt County, Iowa, et al.. 1998 1A.36 ,.......... eee Huffman Abstention Doctrine (see Huffman v. Pursue, Ltd.), L¢hdr ote. eee ae 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, Sah, inode Spe se Ai Ae ep teg tie my 3-4, 6, 10, 18, 21 In Re Clarence Murphy, U.S.C.A. 8™ No. 98-2825, Petition for Writ of Mandamus, ........................ 7 lowa Department of Natural Resourses v. Shelley. PAZ IN. A SUD FD, BGPSR, oo ii vst ccvevesccuse 9 Jenkins v. State of Missouri, 967 F.2d 1245, 1248 (CA8™ 1992), 6.000... 29 Juncker v. Tinney IIT, 549 F Supp. 574, .......... te Oe 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), ................. 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, 894 n.1 (1984) .............¢...... 4, ID, 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 (lowa 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. “es © ;Ais @ LT), :) 24, 27 Nemmers v. City of Dubuque, Iowa, ph OE errr rr Tere re Cre ere 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 US. 1, 95 L.Ed.2d 1, 107 S.Ct. IS19 (1967), .....--- eee eee eee 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, US.C.A. 8™ No. 98-2496SID (Direct Appeal), ........... 6,7 - XVI - Plough v. West Des Moines Community School District, 70 F.3d 512, 516-517 (CA 8™ 1995), ........ 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), ....0 0.00... 6 Bax v, Cork, 3 Gave FOR CITE EA, oo os a oe ch anes 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), 2.000.002.0222. 25 Sierra Club v. Robertson, 960 F.2d 83, 86 (8™ Cir. 1992) ... 24 Southern Pacific Transportation Co. v. City of Los Angeles. 922 F.24 6 O°" Ce. FD... 5 ee 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, ot Polat TE Gee 6, SS0ee «os cave eee eee 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 lhe ie RN - XVii - United Airlines, Inc. v. McDonald, 432 US. 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 ged ed) 24 U.S. v. United Mine Workers of America, 330 U.S. 258, 91 L.Ed. 884, 67 S.Ct. 677 (1947), .......... 19 University of Tennessee v. Elliott, 478 U.S. 788, 796-799, 92 L.Ed.2d 635, ne cv beacceseetpecsess 11-12, 14 Vickory v. Walton, 721 F.2d 1062 (6™ Cir. 1983), cert. denied, No. 83-2111, 53 L.W. 3237 (1984), ........... 22 Watson v. Buck, (Watson v. Buck Abstention) 313 US. 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, }) die Se) se) ) 6 Yniguez v. State of Arizona, 939 F.2d 727, at 734-738 (9™ Cir. 1991), ......... o. Bea Younger-Huffman Abstention Doctrine (see Younger and Huffman, etc.) ...........---0-+++05 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 ae See pears Aten Gg rpage ons A 3-7, 9, 11, 29 ro Sha aids. Woes oe fF) nes Sooo ot oct e be as eeaee ase es 6 United States Codes a ee een en me 5-7 28 U.S.C. §2281 (repealed in 1976), ............. 3,5 Oe RI shoe tuea ao ees 4, 12-13, 15, 21-22 United States Constitution, SE ook eb and secure Te 6-7, 10, 25 11™ Amendment, ...... 3-6, 9-10, 12, 15-16, 24, 26-28 United State Supreme Court EO os ise ae ee R ERR CREE eee ai 2 SN een ee S Le ee ry. 2 ee ARAL Dy gat! MB DC ice ht ae 7 Bettendorf “Protest” Zoning Ordinance ........ 3, 5, 12-13, 30 PUIG SI I dc ooo cece cece veer teneses 13 NS er Olas s aus esse 0d ae oe eee 4 . kA ter Ey Te 25, 30 §24.4 (20% Rule [procedural]), ........... 3-4, 25, 30 Iowa Certificate of Need Statute (C.O.N.), eg ey. any en 14-16, 26 SOU CI, voi cccccccriecsteaeteseeanes wen ewes 8 Iowa Constitution, Article 1, §9 and §18 (“Vested Rights claim”), . 25, 29, 30 Article 3, §38A and §39A (“Home Rule Authority”), Pa eee chee ieee ote re 18, 22-23 Iowa Rules of Civil Procedure. ce neg OD ES rene nae AME eeu 8 WIN iii Sok races ee eee 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, 1979, So46,....... 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 _ No. 98- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 CLARENCE MURPHY, Petitioner, LAS PLANNED PARENTHOOD OF GREATER IOWA, INC. Respondent. 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 U‘S. 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, AA 370, v.2) in part and denying the rest of Defendant’ s Motion to Reconsider Findings of Fact and Injunction (#43, AA 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 AA 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, AA 392, v.3) and all other motions as moot: [ntervener’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, AA 386, v.3), and Motion to Dismiss for Lack of Subject Matter Jurisdiction (#53, AA 447, v.3) of Clarence Murphy. See #57 AA 490, V.3. (Our emphasis. ) May 11, 1998: Order of U.S District Judge Charles R. Wolle, June 1, 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 512 (CA 8™ 1995), by Clarence Murphy. See #65 AA 542, V.3. (Our emphasis. ) 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, AA 548, v.3) by Clarence Murphy. See #70 AA $59, 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 Rew iis A ninatertbetia bes 2 iZe Court of Appeals: (1) has so far departed from the accepted and usual course of judicial proceedings; to wit, ignoring an 117 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, Iowa, 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-5. 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), | | © a 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 lowa Constitution. The 8™ Circuit Court of Appeals has so held in its decision in Nemmers v. City of Dubuque, Iowa, 716 F.2d 1194 (1983). Under Iowa case law, a city council’s action on a zone change request is broadly defined to be a “judicial function” which can be appealed by writ of certiorari to the lowa District Courts, see Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687 at 692 (lowa Supreme Court 1980). If such an appeal is not filed within 30 days, the city council’s actions become final, 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 U.S. District Court (#1, AA 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 lowa Ordinance being attacked. The City of Bettendorf filed a Motion for a Partial Summary Judgment, pursuant to the 11™ Amendment and the Res Judicata Doctrine (#21, AA 119, v.1). U.S. District Judge Charles R. Wolle (erroneously) denied the City’s Res a Judicata Plea (#32, AA 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, AA 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 hot tO pursue an appeal), for the purpose of appealing U.S. District 'udge Wolle’s Judgement on 11™ Amendment jurisc: uonal 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 Writ of Mandamus without an opinion, and summarily affirmed Judge Wolle’s Judgment, also without opinion. The Court of Appeals thereafter also denied a petition for rehearing and suggestion of a hearing en banc in each of the two cases. "+ 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 III (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., \21 L.Ed.2d 605 at 610, $06 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. U.S... 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 ~ P 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 v. Clarence Murphy, and (2) ina 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. vy. Citizens for a Better Environment, __—siU SS. __, 140 L.Ed.2d 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 Iowa 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 vy. West Des Moines Community School District, 70 F 3d $12 at 517 (CA 8™ 1995). Y 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. —— al . x? lowa 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, /esta/, 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 lowa 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 \.W.2d 751 (lowa 1993); Montgomery v. 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 writ 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, pnor to the City Council’s rejection of the Zone Change Application of Planned Parenthood (Vision). The action of the City Councu on a zone change is clearly a judicial sO. functicn under lowa 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 [Iowa 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, 5\2 N.W.2d 579 (Iowa App. 1993). See, also, Plough v. West Des Moines Community School District, 70 F.3d 512 at 517 (CA 8™# 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 City of Fairfield v. Superior Court, \4 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 lowa 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, AA 115, v.1), and on February 12, 1998, Judge Wolle filed his Judgment in this Civil Rights case (see #41 and #42, AA 335- 363, v.2) 2 ¥ The Docket entry for February 12, 1998 (see #1, AA 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 lowa, Inc., and against the Defendant, City of Bettendorf, [A, 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 a a 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, AA 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, AA 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 (th) [Entry date 02/13/98]” (Our emphasis.) and the lowa 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 IS CLEAR AND MUST BE STRICTLY ADHERED TO. See, by analogy, the public policy restraints imposed upon pornography, Rex v. Curl, 2 Strange 789 (1 727), Louis B. Schwartz, co-reporter of the Model Penal C ode, 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 vy. 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 «26 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). . © (Our 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 Iowa has an 11™ Amendment right to keep an abortion clinic out of a residential neighborhood! Vu 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 4 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 2 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 401, 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 right, protected by the Iowa Constitution, he also has Article 3 wees “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, 7\6 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 lowa 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 Iowa _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 5 i ¢ 5 «Zi @ 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.___ (March 3, 1997), and on March 4, 1998. cited with approval its decision in Yniguez, supra, at Point III of the majority opinion of the U.S. Supreme Court in Steel Co. v._ Citizens for _a Better Environment. US. 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 lowa. 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 ' - 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, AA 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, oh vor ovation -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, AA 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, AA 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. McDonald, 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 an 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 lowa - 30 - 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 en train. See footnote 3 at page 18, supra. Dated: January 28, 1999 espectfully submitted, James J. Clay , Attorney ifornia S af Bar No. ont 055 La Tuna Canyon Roa 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. 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). Clarence Murphy’s loss of a “vested nght” 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). Clarence Murphy has both pleaded and established standing. 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. Planned Parenthood, by not naming Clarence Murphy in its Federal Civil Rights lawsuit, has violated the Equitable Clean Hands Doctrine. 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] AA 498-501) has endangered Clarence Murphy’s cognizable interest, which requires that he now intervene and appeal. APPENDIX A: ORDERS ORDER OF THE U.S. DISTRICT COURT IN PLANNED PARENTHOOD, ETC., V. CITY OF BE TTENDORF, IOWA, NO. 3-97- CV-80056, DATED DECEMBER 8, 1997., A-1 ORDER OF THE U.S. DISTRICT COURT IN PLANNED PARENTHOOD, ETC, V. CITY OF BETT ENDORF, IOWA, NO. 3-97- CV-80056, DATED MARCH 17, 1998, A-3 ORDER OF THE U.S. DISTRICT COURT IN PLANNED PARENTHOOD, ETC., V. CITY OF BETTENDORF, IOWA, NO. 3-97- CV-80056, DATED APRIL 21, 1998., A-6 ORDER OF THE U.S. DISTRICT COURT IN PLANNED PARENTHOOD, ETC.) V. CITY OF BETTENDORF, IOWA, NO. 3-97- CV-80056, DATED MAY 11, 1998., A-9 ORDER OF THE U.S. DISTRICT COURT IN PLANNED PARENTHOOD, ETC., V. CITY OF BETTENDORF, IOWA, NO. 3-97- CV-80056, DATED JUNE RA ae See A-l1 ORDER OF THE U.S. COURT OF APPEALS FOR THE 8™ CIRCUIT IN BOTH PLANNED PARENTHOOD ETC, APPELLEE V. CITY OF BETTENDORF, IOWA, DEFENDANT CLARENCE MURPHY, ETC. APPELLANT., NO. 98-2496SID, AND IN RE CLARENCE MURPHY, ETC., NO. 98-2825SID, DATED JULY se dasa s ate ee A-12 ORDER OF THE U.S. COURT OF APPEALS FOR THE 8™ CIRCUIT IN IN RE CLARENCE MURPHY ETC, NO. 98-2825SID, DATED Re nf ae Ee cree wien beset hy Se aia A-14 ORDER OF THE U.S. COURT OF APPEALS FOR THE 8™ CIRCUIT IN PLANNED PARENTHOOD, ETC APPELLEE V. CITY OF BETTENDORF, IOWA, DEFENDANT. CLARENCE MURPHY, ETC. APPELLANT., NO. 98 ‘496SID, DATED OCTOBER 7, 1998., A-15 NOTICE OF ORDER ENTERED BY U.S. SUPREME COURT ASSOCIATE JUSTICE CLARENCE THOMAS, IN JIN RE CLARENCE MURPHY, ETC, APPLICATION NO. A-501, DATED DECEMBER 21, 1998, .. 66.2... oe eee eeccc ceed. A-16 NOTICE OF ORDER ENTERED BY U.S. SUPREME COURT ASSOCIATE JUSTICE CLARENCE THOMAS, IN CLARENCE MURPHY, PETITIONER V. PLANNED PARENTHOOD, ETC, APPLICATION NO. A-502, DATED DECEMBER 31, 1998.,. A-18 A-] 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 plaintiffs 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-2 isnotrequiredtoexhauststatecourtremediesbeforebringing 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. /s/ 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 ) Plaintiff. SOUVEERN burTueCt Or sows ) 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 F indings of Fact and Conclusions of Law, filed on February 12, 1998, that granted the plaintiff Planned Parenthood of Greater, lowa. 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 plainuff 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 such a 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 Snerner resi cern aa came ee 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, ) VS. ) NO. 3-97-CV-80056 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 April 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 Pe A» ot: 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 rights 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 vy. 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, cr 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 lowa 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 Iowa. 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 PLANNED PARENTHOOD _ ee OF GREATER IOWA, INC., peneay si fepae ) Pisin, Serta ac or VS. ) 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 presefits 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 rejected 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. is/ 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, ) ) NO. 3-97-CV-80056 VS. 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. /s/ 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 Appellee, ,. United States District . Court for the Southern V. ° District of lowa . City of Bettendorf, IA; os * 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 7 In Re: Clarence Murphy, * Moving Party is an adjoining * property owner of a twelve- plex apartment known as . 2655 Tech Drive, ° Bettendorf, IA, * 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. 98-2825SID 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, LA, “ Pet} ner > The suggestion for rehearing en banc is denied. The n for rehearing by the panel is also denied October 2, 1998 ay » | (mae ] Loe rots . Lo 11 raer Ente ji at the Direction of the Court Michael I . Gans A-15 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 98-2496SID * Planned Parenthood, of Greater Iowa, Inc.. . ‘ Order Denying Petition Appellee, : for Rehearing and . Suggestion for V. Rehearing En Banc 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 /s/ 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 Re: In Re Clarence Murphy Application No. A-50] 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 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 LIST Mr. James J. Clancy 9055 La Tuna Canyon Road La Tuna Canyon, CA 91352-222] Mr. Willian 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 for 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. Sute:, 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 91352-2221 Mr. William R. Stengel Jr. 305 First National Bank 100 17th Street Rock Island, IL 61201-8751 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 a 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 BE TTENDORF, ETC, NO. 3-96-CV-80184 (RE 90 DAY MORATORIUM PERIOD), FILED DECEMBER 6, 1996., ............0ccccccecucecee. 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 BE TTENDORF, ETC., NO. 3-96-CV-80184 (RE 90 DAY MORATORIUM PERIOD)., ESSE F OREPUUPETCEGOOREN COSC EHUR COOK Oren cco bo eeeceeawecee 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 HUTCHINSON, MAYOR OF BETTENDORF, ETC., NO. 3-96-CV-80184 (RE 90 DAY MORATORIUM PERIOD), FILED DECEMBER 9, 1996.,.. B-I B-] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION FILED DAVENPORT, IOWA Planned Parenthood of Greater ) %6DEC-6 PM 2:27 lowa, Inc. ) CLERK, U.S. DISTRICT COURT Plaintiff ) SOUTHERN DISTRICT OF IOWA vs. ) ) The City of Bettendorf ) No. 3-96-CV-80184 Anu 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: l. 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. 3. 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. tO WHEREFORE, it is prayed that Judge Wolle be recused. and the matters of this litigation be heard by another Judge of the District B-2 Respectfully submitted, City of Bettendorf Ann Hutchinson, Mayor __Is/ Gregory S. Jager City Attorney 1609 State Street Bettendorf, lowa 52722 319/344-4000 /s/ Paul L. Macek Assistant City Attorney 111 E Third Street Davenport, lowa 52801 319/324-1971 Attomeys for Defendants 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, Iowa ) ) ) ) ) ) ) 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). 2. 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. Ss 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 a reasonable basis for questioning his impartiality when the university is a party before the court. Lunde 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 ) — PESMOINEs, IOWA GREATER IOWA, INC., | 96DECS PM as 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 plaintiffs 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 plaintiffs 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1226%3A1. Public record. Not legal advice.