Petition for Writ of Mandamus — In re Murphy

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Supreme Court, U.S.

FiLED

No. 98-9 81449 MAR 101999

IN THE SUPREME COURT OF THE UNITED STATES

OFFICE OF THE ELERK

October Term, 1998

In Re Clarence Murphy, Petitioner, Acting as an Adjoining

Property Owner of a Twelve-plex Apartment Known as 2655 Tech

Drive, Bettendorf, Iowa (Within 200 feet of the Planned

Parenthood Property), Who Made a Successful Statutory Protest

Against the Planned Parenthood Application for a Zone Change to

C-5, Which Was Denied by the Bettendorf City Council in a Quasi-

Judicial Order Which Is Now Final, in Which Petitioner Has a

Vested Property Right (Zoning Interest) under the lowa

Constitution; and Claims a Right to a Rule Nisi , Pursuant to

(1) an 11th Amendment Jurisdictional Bar; (2) Huffman_vy.

Pursue, Ltd. and the Huffman and Rooker-Feldman Abstention

Doctrines; and (3) the Res Judicata and Stare Decisis Doctrines

with Respect to the Issues Raised in Planned Parenthood’s

Subsequent Civil Rights Action in the U.S. District Court under

42 U.S.C. §1983.

On Petition for an Original Writ of Mandamus to the

U.S. District Court, Southern District of lowa, Davenport Division

and the Honorable Charles R. Wolle, Judge of the

U.S. District Court, Southern District of lowa, Davenport Division

PETITION TO INTERVENE

PURSUANT TO F.R.C.P. 24(a)(2), AND

PETITION FOR WRIT OF MANDAMUS,

PURSUANT TO 28 U.S.C. §1651(A).

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.

-l-

QUESTIONS PRESENTED

Whether the Huffman Abstention Doctrine, involving

important state interests, expressed by this Court in Huffman

v. Pursue Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct. 1200

(1975), reh. den., 421 U.S. 971, 44 L.Ed.2d 463, 95 S.Ct. 1969,

and its progeny: Middlesex Ethics Comm. v. Garden State Bar

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

Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 79

L.Ed.2d 56, 104 S.Ct. 892 (1984) and University of Tennessee

v. Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct. 3220

(1986); and by the 8™ Circuit progeny: Plough v. West Des

Moines Community School District, 70 F.3d 512 (CA 8™

1995); is “jurisdictional”; that is, whether its function is to

resolve a conflict involving “concurrent federal jurisdiction” by

determining whether the federal court has federal jurisdiction

under Article 3, §2, or the state court has exclusive jurisdiction

under the 11 Amendment?

Whether Petitioner Clarence Murphy, as an adjoining property

owner of a twelve-plex apartment known as 2655 Tech Drive,

Bettendorf, lowa (within 200 feet of the Planned Parenthood

property), who made a successful statutory protest against the

Planned Parenthood Application for a Zone Change to C-5,

which was denied by the Bettendorf City Council in a quasi-

judicial City Council Order on March 19, 1996, which is now

final and vests in Clarence Murphy important state property

(zoning) interests (rights) under the Iowa State Constitution,

and Nemmers v. City of Dubuque, Iowa, 716 F.2d 1194

(1983); has standing to intervene as of right pursuant to

F.R.C.P. 24(a)(2), where Petitioner Murphy contends that,

because of the successful statutory “protest”, the Doctrines of

Huffman Abstention, Rooker-Feldman Abstention, Res

Judicata and Stare Decisis also apply in favor of Petitioner

Murphy’s cause of action against Planned Parenthood

piles

(independent_of whether they apply as to the City of

Bettendorf); and Petitioner Murphy’s Intervention Motion was

exercised immediately after he learned that the Bettendorf City

Attorney would not appeal the adverse judgment because of the

impending threat of an assessment of substantial attorney’s fees

by U.S. District Judge Wolle under 42 U.S.C. §1988?

Whether the Res Judicata Doctrine applied by the 8 Circuit

Court of Appeals in the Plough case, supra, is controlling

precedent as to Petitioner Clarence Murphy’s cause of action

under the Doctrine of Stare Decisis, and whether the refusal of

the U.S. District Court to apply the Stare Decisis Doctrine to

to Petitioner Murphy’s cause of action constitutes “conduct

prejudicial to the administration of justice that brings the judicial

office into disrepute”, in violation of the Canons on Ethics

which govern and control the performance of federal judges?

Whether this Court will apply Banks v. Chicago Grain

Trimmers Asso., 390 U.S. 459, 20 L.Ed.2d 30, 88 S.Ct. 1140

(1968) as precedent and grant Petitioner Clarence Murphy the

right to intervene under the mandatory provisions of

F.R.C.P. 24(a)(2), for the purpose of obtaining a Wnt of

Mandamus pursuant to this Court’s original jurisdiction and

28 U.S.C. §1651(a), where the record shows, that Petitioner

Murphy, acting in defense of his own property rights, under the

Iowa Constitution and as a private attorney general on behalf of

the general public (the State of Iowa, its cities and the City of

Bettendorf, a Home Rule City) has established that Planned

Parenthood’s filing of a civil rights action in the U.S. District

Court below violates the 11™ Amendment and this Court’s

Huffman Abstention Doctrine and the Res Judicata

Doctrine; and Petitioner Murphy as a non-party has “standing”

to intervene under this Court’s test in Baker v. Carr, 369 US.

186, 7 L.Ed.2d 663, 82 S.Ct. 691 (1962):

anager aleatcabiete- hx _—

- ill -

“. . . Have the appellants alleged such a personal stake

in the outcome of the controversy as to assure that the

concrete adverseness which sharpens the presentation of

issues upon which the Court so largely depends for

illumination of difficult constitutional questions?”,

and has been manifestly deprived of his right to mandatorily

intervene by both the U.S. District Court and the 8™ Circuit

Court of Appeals below, who have refused to address or permit

oral argument on the question of lack of subject matter

jurisdiction under Article 3 §2 of the U.S. Constitution, which

those Courts are required to treat and resolve as their first (in

this case, their only) order of business, pursuant to this Court’s

clear and emphatic instructions in Steel Co. v. Citizens for a

Better Environment, __ U.S. __, 140 LEd2d 210,

___S8.Ct.__ (March 4, 1998)?

Whether, under the 11™ Amendment and Allen vy.

McCurry, 449 U.S. 90, 60 L.Ed. 2d 308, 101 S.Ct. 441 (1980)

and Parratt v. Taylor, 451 U.S. 527,68 L.Ed.2d 420, 101 S.Ct.

1908 (1981), Planned Parenthood can state a Civil Rights cause

of action under 42 U.S.C. §1983 and 42 U.S.C. §1988 to

support Article 3, §2 federal jurisdiction where it has an

equivalent state court remedy by way of an appeal to the Iowa

State Courts from a city council’s denial of a zone change

application, but no right under Iowa law to attorney fees

pursuant to such an appeal, except where a Constitutional injury

is pleaded and proven?

o TV «

TABLE OF CONTENTS

QUE He PIES te ck ce ccetsseciuconsceens i

SA ee Ce a a th nee URS Rec eb eease ss iv

pro gi og iy yt: gh +. a rn reel vii

el POT EEe TT eT CT TLE TT TTT TOR CUTE TT Tre eT vil

FEDERAL RULES, STATUTES, .........cccccecceess x

STATE ets PEE OUR, 665 oo 6a a esac ae eee eaves xi

TEXTS, LAW REVIEWS, MISCELLANEOUS, ........ xi

PETITION TO INTERVENE, PURSUANT TO

F.R.C.P. 24(a)(2), AND PETITION FOR WRIT

OF MANDAMUS, PURSUANT TO 28 U.S.C.

| Sy Ae a Oe, SL ee ee 1

OPINIONS AND ORDERS, .............0cececececees i

STATEMENT OF THE CASE, ............0.0e0eeeeee i

RE INTERVENTION: THIS COURT HAS, ON

SEVERAL OCCASIONS, PERMITTED

INTERVENTION, AND THEREAFTER

GRANTED PLENARY REVIEW TO A

PERSON WHO WAS NOT A PARTY., .......... §

ee Fa ls 5 a ace creek rend eh enbaneeens 5

REASONS FOR GRANTING THE WRIT, ............. 6

I The Writ of Mandamus Will Be in Aid of this

Court’s Appellate Jurisdiction., .............006. 6

SED WON RG i os 55 5-056 40 Os 5 OKO RS EES 6

itl

ere WO CI 5 neon s ceeaeeenceeoe

Weed Se NO (oo awa dvd ebet deen Ge eee,

Sey Pe GMOS 6 cw ass s aos hae acasa

ee Wa GS <n he hess dows tok ee er e

Exceptional Circumstances Warrant the Exercise

of this Court’s Discretionary Powers at this Time.,

TCE OCSCEOSRPSePVPesseeos oH € ECHO 6 FOS 6 OSS 66 6678

Adequate Relief Cannot Be Obtained in Any

Other Forum or from Any Other Court for the

i ETS ne

I1I(A) The Refusal of a Majority of Federal

Courts to Acknowledge the “Jurisdictional”

Aspect of the Huffman Abstention Doctrine

Manifests a Need for Re-Examination of the

Se CNN in co chs ae ee aera

A Re-Examination of the Huffman Cases., .......

IV(A) The Critical Status of the Ohio State

Court’s Jurisdiction and Huffman’s Dilemma., ... .

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

Jurisdiction in Huffman-— Ohio’s Concern re

Moral Depravity, an Important State Interest

under the 10™ and 11™ Amendments.,..........

[V(C) The Prosecuting Attorney’s Interests

Versus This Court’s Interests in Huffman., ......

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

Lost. This Court Can, and must Correct That

oo Ee PETE CT TET OCCT CL CLO er er

- vi -

V The Federal Court’s Fundamental Error:

Ignoring the “Protest” Statute. The Federal

Court Does Not Have and Cannot Acquire

Personal Jurisdiction of the Parties Necessary to

Acquire Article 3, §2 Subject Matter Jurisdiction

(Petitioner Murphy and the Two Other

a, gt PE Pre Tre rer re eT re Tr 16

VI The Importance and Complexity of the

11™ Amendment Challenge.,................45- 18

VII The Wrongful Bias and Pressure Exercised by

Judge Wolle Is a Matter of Public Record., ....... 20

VIII The Huffman Abstention Doctrine Needs to Be

Re-Examined: it Is Singular in Purpose and

Narrow in Scope, Being Specifically Designed to

Resolve the “Lady or the Tiger” Jurisdictional

Dilemma (11™ Amendment or Article 3, §2 [Ex

Parte Young] Subject Matter Jurisdiction?)., ...... 23

VIIN(A) “Apples” (The Younger Abstention

Doctrine and the Huffman Abstention Doctrine)

and “Oranges” (Other General Abstention

Principles) must Be Distinguished. Although the

Younger Abstention Doctrine and the Huffman

Abstention Doctrine Are Solidly “Rooted” in

Watson v. Buck, 313 U.S. 387 (1941), They Are

Distinguishable from Each Other and from Other

Abstention Doctrines. Their Primary Function Is

to Determine Which Court Has “Subject Matter

pI ee ere rye Ape 24

VIIIK(B) Younger Abstention and Huffman

Abstention Are Distinguishable., ................ 24

- Vil -

1X Because it Had an Adequate State Court Remedy (Appeal

from a Zoning Determination), Planned Parenthood Has

Not, and Cannot State a Cause of Action under 42 U.S.C.

§1983, Nor Is it Entitled to Attorney Fees under 42 U.S.C.

SERRE eases oe ere ere rere 26

a A Eee re en ele ANS a.) 30

VE ee ere 30

TABLE OF AUTHORITIES

CASES

Albery v. Redding, 718 F.2d 245 (7™ Cir. 1983), .......... 27

Alleghany Corp. v. Haase.

708 F.Supp. 1507, 1515-1519 (W.D.Wis. 1989), ......... 29

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

60 L.Ed.2d 308, 101 S.Ct. 441 (1980), ............... 4, 26

Banks v. Chicago Grain Trimmers Asso.,

390 U.S. 459, 20 L.Ed.2d 30, 88 S.Ct. 1140 (1968), ......... 5

Brown vy. Brienen, 722 F.2d 360, 369 (7™ Cir. 1983), ...... 27

Chiplin Enterprises v. City of Lebanon.

712 F.2d 1524, 1527 (1°' Cir. 1983), .................... 27

Creative Environments, Inc. v. Estabrook,

680 F.2d 822, 829-834 (1°' Cir. 1982),

cert den., 459 U.S 989, 74 L.Ed.2d 385, 103 S.Ct. 345 (1982) 27

Deakins v. Monaghan, 484 U.S. 193,

98 L.Ed.2d 529, 540 fn.6, 108 S.Ct. 523 (1988), ......... 25-26

Deerfield Medical Center v. City of Deerfield Beach,

ae ee Re a ) 27

- Vill -

Ex Parte Young, 209 US. 123,

$2 L.Ed. 714, 28 S.Ct. 441 (1908), ............. 23-24, 26-27

Hicks v. Miranda, (Hicks v. Miranda Doctrine)

422 U.S. 322, 45 L.Ed.2d 223, 95 S.Ct. 2281 (1975), .... 13, 25

Huffman Abstention Doctrine

(see Huffman v. Pursue, Ltd.), . 1, 3-4, 7,9, 15-16, 23-26, 28-30

Huffman v. Pursue Ltd., No. 73-296

(Huffman Abstention Doctrine)

420 U.S. 592, 694-605, 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,

TTP ET TERT ETT eT eC OTE ee ee 1, 2, 6-7, 9-15, 23-24, 29

Huffman v. U.S. District Court, No. 73-1613 Misc.

Motion, etc., to File Petition and Petition for Writ

of Mandamus, etc., Petition for Writ of Mandamus

and Brief in Support Thereof., ............. 10-11, 14

In Re Clarence Murphy, U.S.S.C.T. No. 1221

Application No. A-612, Application, etc., to File a

Petition to Intervene, etc., and Petition for Writ of

Mandamus, etc., in Excess of Applicable Page

Limit. (Denied Jan. 26, 1999), .......cccecsccces 20

Petition for Writ of Certiorari., ............... 1, 18

In Re State of Iowa, Acting by and through Pottawattamie

County Attorney Richard D. Crowl, Jr., Petitioner..,

No. 98-1565 SIDM, (8™ Cir. Denied: March 11, 1998),

Petition for a Writ of Mandamus, etc., Seeking

Dismissal for Lack of Subject Matter

IG Sa ioc cn bana aes Fakes 19-20

Kerr v. U.S. District Court,

426 U.S. 394, 48 L.Ed.2d 725, 96 §.Ct. 2119 (1976), ........ 5

LaSalle National Bank v. County of Lake,

Se a ree Os PU 8s ses vies > vee ehh ds bees 27

Lewis v. Beddingfield, 20 F.3d 123, at 125 (5™ Cir. 1994),... 26

e iXe

Martinez v. Newport Beach Cit

125 F.3d 777, 781 fn.4&5 (9 oA, Ser 25

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

457 US. 423, 73 L.Ed.2d 116, 102 S.Ct. 2515 (1982)

rr re er ek a i ae

7, 16, 26, 28

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

465 US. 75, 77 n.1, 79 L.Ed.2d 56,

104 S.Ct. 892, 894 n.1 (1984) ...--- eee 7,16

Molgaard v. Town of Caledonia,

(DC Wisc. 1981) 527 F.Supp. 1073, aff'd. 595 Se Se 27

Montgomery v. Bremer County Board of Supervisors,

299 N.W 2d 687 at 692 (lowa Supreme Court | Se 2

Murphy v. Planned Parenthood of Greater Iowa, Inc.,

USS.C.T. No. 98-1222, Petition for Writ of Certiorari, .. 1,18

Nemmers y. City of Dubuque, Iowa,

Taw Bhd ee 2, 6

Ohie Civil Rights Comm'n. v. Dayton Schools, 477 U.S. 619,

9] L.Ed.2d 512, 106 S.Ct. 2718 i Ree 28

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

68 L.Ed.2d 420, 101 S.Ct. 1908 (1981) ......----. 4, 21, 26-27

Pennzoil Co. v. Texaco, Inc., 481 US. 1,

95 L.Ed.2d 1, 107 S.Ct. 1519 fee re 25, 28

Plough v. West Des Moines Community School District

70 F.3d 512, 516-517 (CA g™™ 1995), .....00 eee 2, 7, 16, 21

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), ....------ 5,19

Quackenbush vy. Allstate Ins. Co., (Quackenbush Abstention)

BA: SSRs LEd.2d _, 116S.Ct. 1712 (1996), ..... 25

-X-

Rooker-Feldman Abstention Doctrine

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

and Dist. of Columbia Court of Appeals _v.

Feldman, 460 U.S. 462, 75 L.Ed.2d 206, 103 S.Ct

Fo ea ar She cnr era 7, 9, 16, 29-30

Scott v. Greenville County.

716 F.2d 1409, 1419 (4 Cir. 1983), ... «2... 2.5.00 eee 27

Steel Co. v. Citizens for a Better Environment.

__ US. _, 140 L.Ed.2d 210, 118 S.Ct. 1003,

nN I ar ere ra ia LS oo ace hut a; 7,23

Sun Refining & Marketing Co. v. Brennan,

921 F.2d 635, 639-640, citing World Famous, etc., infra

Po aa Ee ar rr ee a 29

University of Tennessee v. Elliott.

478 U.S. 788, 92 L.Ed.2d 635, 106 S.Ct. 3220 (1986), .... 7, 16

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

FES a ee, Oe es PE on epee beakoes 7,24

Will v. U.S...

389 U.S. 90, 19 L.Ed.2d 305, 88 S.Ct. 269 (1967), .......... 5

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

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

PEG GA ie A er ec is baie eee 5, 19-20

World Famous Drinking Emporium, Inc. v.

City of Tempe, Arizona, 820 F.2d 1079 at 1084

es Rg a eee oe i 24, 29

Younger v. Harris (Younger Abstention Doctrine),

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

Re eg ey tants IEA dy ote atlas aoe ieee 14-15, 24-26, 28

FEDERAL RULES, STATUTES,

Federal Rules of Civil Procedure, Rule 24(a)(2), ...... 1, 6, 30

aes

Judicial Doctrines

Peer eee ee 2-4, 7, 9, 16, 20-21, 30

Te... ook cena ne ees wees 4, 10, 16, 21, 30

9 See ere ey ee ee ee ee 1, 4, 10, 14, 16, 30

United States Codes

Oe a Ba os © vite ences eth 2 1, 4, 10-11

28 U.S.C. §2281 (repealed in 1976),......... 6, 11,17

28 U.S.C. §2283 (Anti-Injunction Act), .........-.. 25

SEUSS CIFGsy ow ci eke eS 2, 4, 8, 10, 23-28

rv ete Cia | Sears oe 3-4, 8, 19-20, 26

United States Constitution,

RE a os se kv cee es 1, 4, 7-10, 16, 18, 23-27

a ee ives eee laes 10, 12-13, 27

11™ Amendment, .... 1-4, 6-10, 12-13, 15-19, 23-27, 30

14™ Amendment, (Due Process Clause), ...... 10, 23-24

United State Supreme Court Rules, Rule 20(1), ........-.-. 1

STATE RULES, STATUTES

Bettendorf “Protest” Zoning Ordinance ...... 2, 4, 6-8, 16-17

Bettendorf Zoning Code

§24.4 (“Protest” 20% Rule [procedural]), ....... 2, 6-8

a a ee ie are uri rire a 2, 6

Ohio Red Light Abatement Statute,

Ohio Revised Codes, Chapter 3767 (re Huffman), . 10-1 2, 29

TEXTS, LAW REVIEWS, MISCELLANEOUS

Criminal Law, Rollin M. Perkins,

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

at pages 445-466, 2... eee eee eee eee tenes 13

- Xil -

“The Lady or the Tiger” (1844), Frank R. Stockton, .. 23

Supreme Court Practice,

§2.14 “Appeal Jurisdiction Over Three-Judge

District Courts— History, Interpretation and Demise”,

EE WUE es es odo es ee Oe re

MPG, 5.5 6escas renee oe 5 6 a

8 Bg fy) ee rere oe es ‘0 Sahat

PETITION TO INTERVENE, PURSUANT

TO F.R.C.P. 24(a)(2), AND PETITION FOR

WRIT OF MANDAMUS, PURSUANT TO

28 U.S.C. §1651(A).

Petitioner Clarence Murphy (hereinafter “Petitioner

Murphy” and “Petitioner”) moves this Court to intervene in

Case No. 1222 ¥, and also moves, pursuant to 28 U.S.C.

§1651(a), and Rule 20(1) of the Supreme Court Rules as

revised in 1997, that an order and Rule Nisi be entered and

issued directing the U.S. District Court, Southern District of

lowa, Davenport Division, and the Honorable Charles R. Wolle,

District Judge of the U.S. District Court, Southern District of

lowa, Davenport Division, to show cause why a writ of

mandamus should not be entered in accordance with the prayer

of this Petition (which alleges that the U.S. District Court lacks

Article 3, §2 subject matter jurisdiction), and why the Petitioner

should not have such other and further relief pursuant to the

11™ Amendment; Huffman v. Pursue Ltd., 420 US. 592

(1975) and the Huffman Abstention Doctrine, as may be just

and proper.

OPINIONS AND ORDERS

git

A copy of the Orders of the U.S. District Court, the

Circuit Court of Appeals below, and the U.S. Supreme Court

appears at Appendix A to this Petition for Writ of Mandamus.

STATEMENT OF THE CASE

Planned Parenthood wishes to construct an abortion

V This Petition for Writ of Mandamus is ancillary to the Petition

for Writ of Certiorari in In Re Clarence Murphy, No. 98-1221 and

Clarence Murphy v. Planned Parenthood of Greater Iowa, Inc., No. 98-

1222. Petitioner Murphy requests this Court to take Judicial Notice of both

Petitions and consider the merits of the three cases in tandem.

clinic in Bettendorf, lowa. The Bettendorf Zoning Ordinance

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

Had Planned Parenthood purchased a C-5 Zoned

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

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

relatively new residential apartment complexes and submitted an

application for approval of a C-5 Zoning Ordinance.

Petitioner Murphy and two other adjacent apartment

owners within 200 feet of the Planned Parenthood property

made a successful statutory protest (20% Rule) against the

zone change, pursuant to Bettendorf Zoning Code, §24.2 and

§24.4 (see copy at Appendix C), which precluded the

Bettendorf City Council from adopting a C-5 Zoning Ordinance

unless the City Council voted 6-1 in favor of the Zoning

Ordinance. The City Council aligned itself with the protesters

and on March 19, 1996 voted 5-1 to reject the C-5 Zoning

Ordinance. That quasi-judicial order was not appealed and is

now final and Res Judicata under Iowa Law.

Zoning Rights are “Vested Rights” under lowa Law and

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

so held in its decision in Nemmers v. City of Dubuque, Towa,

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 (Iowa Supreme Court

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

actions become final, in which case, under the The

Amendment and Huffman v. Pursue Ltd., 420 US. 592 at

606, fn. 18 and 19 and the progeny of Huffman, 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

is both final and Res Judicata.

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

City Council’s rejection of the C-5 Zoning Ordinance, Planned

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

oe teed SHR

eka

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

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

Council which considered essentially the same issues and facts

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

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

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

adjacent apartment owners who made the successful statutory

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

42 U.S.C. §1988.

The City of Bettendorf filed a Summary Judgment

Motion, pursuant to the Huffman Abstention Doctrine and the

Res Judicata Doctrine which Judge Wolle denied.

Upon conclusion of the federal trial, Judge Wolle

entered a judgment which purported to rezone the property

from P.U.D. to C-5 Zoning and awarded attorney’s fees to

Planned Parenthood under 42 U.S.C. §1988 which would not

have been available had an appeal been taken to the lowa

District Court following the denial of the C-5 Zoning Ordinance.

Petitioner Murphy moved to intervene in the U.S.

District Court immediately after the City of Bettendorf (“parens

patriae”) announced its decision not to appeal, for the purpose

of appealing U.S. District Judge Wolle’s Judgement on 11

Amendment, the Huffman Abstention Doctrine and other

jurisdictional grounds, including his denial of the City’s

Summary Judgment Motion on its plea of Res Judicata.

Judge Wolle: (1) ruled “cursorily” on Petitioner

Murphy’s “extensive” pleadings that the Intervention Motion

was “untimely”; (2) refused to address the merits of Petitioner’ s

right to mandatory intervention; and the 1 1™ Amendment; Res

Judicata, and other Jurisdictional claims raised at the time of

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

argument on the intervention and jurisdictional claims.

In the Court of Appeals below, Petitioner Murphy

sought judicial relief from Judge Wolle’s arrogation of Federal

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

the filing of an original action (a verified complaint pursuant to

a Petition for Writ of Mandamus) in the 8™ Circuit Court of

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

In a highly unorthodox ruling, the Court treated the

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

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

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

for Wnt of Mandamus without an Opinion, and summarily

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

Court of Appeals also denied a petition for rehearing and

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

Petitioner Murphy contends in this Petition for Writ of

Mandamus, pursuant to this Court’s original jurisdiction:

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

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

remedy under lowa procedure of judicial review by the lowa

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

[1980] and Parratt v. Taylor, 451 U.S. 527 [1981] at Point IX,

page 26, infra), and (2) that it is not entitled to attorney’s fees

under 42 U.S.C. §1988 because Iowa and other state courts do

not customarily award attorney’s fees in litigation involving an

appeal from a denial of a C-5 zoning ordinance and application

of the Bettendorf “Protest” Ordinance: and (3) where, as

here, a separate 42 U.S.C. §1983 cause of action is pleaded and

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

of the 11 Amendment bar, which has been pleaded; and

(4) in any event, Judge Wolle’s Judgment must be reversed

because, at this state of the proceedings, the 11™ Amendment.

the Huffman Abstention Doctrine and the Doctrines of Res

Judicata and Stare Decisis control the disposition of this case

and mandate that the Federal Judgment must be vacated for lack

of Article 3, §2 subject matter jurisdiction.

Petitioner Murphy contends he is entitled to a Rule Nisi

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

of both Courts to address the issue of “lack of Article 3, §2

subject matter jurisdiction” under his 11™ Amendment claim.

See Steel Co. v. Citizens for a Better Environment 140

L.Ed.2d 210 (March 4, 1998) (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., 121 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, No. 97-461 (June 22, 1998) (Associate Justice Kennedy’s

concurring opinion re the issue of “lack of subject matter

jurisdiction”). See Kerr v. U.S. Dist. Ct., 426 U.S. 394 (1976);

Will _v. U.S., 389 U.S. 90 (1967); and Supreme Court

page 495.

RE INTERVENTION: THIS COURT HAS, ON

SEVERAL OCCASIONS, PERMITTED

INTERVENTION, AND THEREAFTER

GRANTED PLENARY REVIEW TO A PERSON

WHO WAS NOT A PARTY.

In circumstances identical to the instant case, in Banks

v. Chicago Grain Trimmers Asso., 390 U.S. 459 (1968), this

Court granted plenary review to a person who was not a party

and who had been denied intervention in the Courts below. See,

generally, Supreme Court Practice, 7” Ed, by Stern,

RE JURISDICTION

Petitioner Murphy alleges and contends: (1) that the

writ of mandamus will be in aid of the Court’s appellate

jurisdiction; (2) that exceptional circumstances warrant the

exercise of the Court’s discretionary powers at this time; and

(3) that adequate relief cannot be obtained in any other forum or

from any other court for the following reasons:

_ o

REASONS FOR GRANTING THE WRIT

I The Writ of Mandamus Will Be in Aid of this

Court’s Appellate Jurisdiction.

(A) First Claim: US. District Judge Charles R.

Wolle has egregiously (knowingly and without judicial

explanation) refused to acknowledge the finality of the quasi-

judicial order of the Bettendorf City Council which, in acting in

a quasi-judicial capacity, denied the Planned Parenthood Zone

Change Application; and has egregiously (knowingly and

without judicial explanation) refused to acknowledge Petitioner

Murphy’s vested property interest arising out of the City

Council’s quasi-judicial order and “protest” statute, as a zoning

property right under the Iowa State Constitution and Nemmers

v. City of Dubuque, lowa, 716 F.2d 1194 (1983). Petitioner

Murphy’s real property interests entitle Petitioner to intervene

pursuant to the mandatory provisions of F.R.C.P. 24(a)(2) for

the purpose of appealing Judge Wolle’s wrongful assumption of

subject matter jurisdiction and denial of Petitioner’s lawful right

under Iowa law to “protest” and prevent the zone change

needed to allow an abortion clinic within 200 feet of his

residential apartment complex. Heretofore, such wrongful

federal interference with the implementation of Bettendorf

Zoning Ordinance §24.2 and §24.4 and 11™ Amendment

rights and state judicial orders and their equivalent, have evoked

this Court’s mandatory “appellate” jurisdiction to correct federal

interference by a single U.S. District Judge in important state

interests which are of a constitutional dimension and raise a

substantial federal question. See the three-judge requirements

of 28 U.S.C. §2281 (repealed in 1976) as applied in Huffman

v. Pursue Ltd., supra, which is discussed in this Petition at

Point IV on page 10, et seq..

I(B) Second Claim: Both US. District Judge

Charles R. Wolle and the panel of Judges for the 8™ Circuit

have, egregiously (knowingly and without judicial explanation)

i #

refused to apply the Huffman Abstention Doctrine and the

jurisdictional rules re the 11™ Amendment rights of the State

of lowa and the Doctrine of Res Judicata as established by this

Court in Huffman v. Pursue Ltd., supra, and clarified in the

following Huffman v. Pursue Ltd. progeny: Middlesex Ethics

Comm. v. Garden State Bar Assn., 457 U.S. 423 (1982);

Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75

(1984); University of Tennessee v. Elliott, 478 U.S. 788

(1986); and as applied by the U.S. Court of Appeals for the 8™

Circuit after such clarification in Plough v. West Des Moines

Community School District, 70 F.3d 512 (CA 8™ 1995).

1(C) Third Claim: Both the U.S. District Court and

the U.S. Court of Appeals for the 8™ Circuit have, egregiously

(knowingly and without judicial explanation) refused to apply

this Court’s recent decision in Steel Co. v. Citizens for a Better

Environment, 140 L.Ed.2d 210 (March 4, 1998), which

required that a federal court examine and address, as its first

order of business, whether or not that court has jurisdiction of

the subject matter which is before them.

1(D) Fourth Claim: Petitioner Murphy’s cause of

action presents a simple zoning case involving Petitioner’s

lawful right arising out Bettendorf Zoning “Protest”

Ordinance, §24.2 and §24.4, which allows adjacent property

owners within 200 feet of a proposed zoning change to protest

any zone change application.

The abortion facility cannot be constructed on the

Planned Parenthood property without considering the underlying

lowa State “Protest” Statute which authorizes such protests and

creates such property interests. Under the 11™ Amendment

and the Huffman, Watson v. Buck, and Rooker-Feldman

Abstention Doctrines, a federal court does not have Article 3,

§2 subject matter jurisdiction of such claims.

Both federal courts know and realize that to address

Petitioner Murphy’s timely Petition to Intervene and lawful

claims will require that all of Judge Wolle’s Judgments be

~ o

reviewed and reversed.

The wrongful actions of the Federal Courts will permit

an abortion facility to be constructed within 200 feet of his

residential apartments, notwithstanding Petitioner’s successful

“protest” and 11™ Amendment rights under the Bettendorf

Zoning Ordinance, §24.2 and §24.4, which now prohibit such

construction under Iowa law (the City Council's quasi-judicial

Order, dated March 19,1996, which was not appealed).

Counsel of Record respectfully submits that such “in

your face” decisions re “subject matter jurisdiction” by a single

US. District Court Judge and by a U.S. Court of Appeals,

without an explanatory judicial opinion, require the “equivalent”

of mandatory review by writ of mandamus (rather than writ of

certiorari) because such judicial decisions violate this Court’s

precedential decisions which require the lower federal courts to

address the issue of “subject matter jurisdiction” in an

explanatory opinion whenever and wherever that issue is raised.

1(E) Fifth Claim: Because it had an adequate state

court remedy (appeal by Writ of Certiorari to the lowa District

Court) Planned Parenthood has not, and cannot state a cause of

action under 42 U.S.C. §1983, nor is it entitled to attorney fees

under 42 U.S.C. §1988.

I Exceptional Circumstances Warrant the Exercise of

this Court’s Discretionary Powers at this Time.

Counsel of Record filed a timely Notice of Appeal and

Appellant’s Opening Brief in support of an appeal from such

wrongful trial court ruling, together with an original Petition for

Writ of Mandamus alleging lack of Article 3, §2 subject

matter jurisdiction under the 11™ Amendment of the Federal

Constitution as a second and independent case in the U.S.

Court of Appeals for the 8™ Circuit.

In a highly unorthodox procedural ruling, the U.S. Court

of Appeals, without an explanatory judicial opinion, treated

Appellant’s Opening Brief and original Petition for a Writ of

‘Oe

Mandamus, alleging lack of Article 3, §2 subject matter

jurisdiction under the 11™ Amendment, as if that appellate

case and original writ proceeding had been consolidated and,

without _an explanatory judicial opinion, summarily dismissed

Petitioner Murphy’s appeal and concomitantly denied Petitioner

Murphy’s original Petition for Writ of Mandamus.

i Adequate Relief Cannot Be Obtained in Any Other

Forum or from Any Other Court for the Following

Reasons:

“Adequate Relief” in the above context means “giving

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

Appeals in the 11 Circuits, that the Huffman Abstention

Doctrine is “Jurisdictional” and that the Planned Parenthood

Civil Rights Action must be dismissed on those grounds where

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

reexamination of this Court’s opinion and decision in Huffman

v. Pursue, Ltd., supra.

I1l(A) The Refusal of a Majority of Federal Courts

to Acknowledge the “Jurisdictional” Aspect of the

Huffman Abstention Doctrine Manifests a Need for

Re-Examination of the Huffman Cases.

Petitioner Murphy contends that the rule of law re lack

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

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

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

federal courts consider themselves bound thereby.

When faced with Petitioner’s lawful nght to intervene as

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

actions (requiring the construction of an abortion clinic within

200 feet of his apartment complex) pursuant to Petitioner's

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

the 11™ Amendment, the Huffman and Rooker-Feldman

Abstention Doctrines, the Res Judicata Doctrine and the

-10-

Stare Decisis Doctrine, both the U.S. District Court and the

U.S. Court of Appeals for the 8™ Circuit dismissed such claims

without an explanatory judicial opinion, in utter disregard of this

Court’s repeated admonitions that a federal court must rule on

the jurisdictional issue as its first order of business.

Petitioner Murphy submits that, in the light of what is

said hereafter at Point IV about the background of the rule of

law expressed in Huffman v. Pursue, Ltd., supra, and the great

harm which has resulted from this Court’s having refused to

“squarely” address the 11™ Amendment jurisdictional aspect

of the Huffman case, this Court should use this Petition to

clarify the rule of law on “lack of Article 3, §2 subject matter

jurisdiction” in Huffman by making explicit that which is

implicit (i.e., said by indirection and inference) by either a Rule

Nisi, or by noting jurisdiction on the Questions Presented and

setting those issues for oral argument and decision by the Court.

IV A Re-Examination of the Huffman Cases.

25 years ago (May 1973), the substantial federal

question which controls this case, namely, the conflict between

the subject matter jurisdiction of federal courts under the 14™

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

Constitution: and the subject matter jurisdiction of state courts

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

Constitution, was squarely before this Court in two forms:

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

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

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

Mandamus and Petition for a Writ of Mandamus as to this

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

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

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

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

the constitutionality of the Ohio Public Nuisance Statute as then

required by this Court’s mandatory appellate jurisdiction under

sis

28 U.S.C. §2281 (repealed in 1976) ”.

Counsel of Record for Petitioner Murphy in this Petition

for Writ of Mandamus was also the Counsel of Record for

Allen County, Ohio Prosecutor Huffman (hereinafter

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

of the Jurisdictional Statement and the Petition for Rehearing in

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

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

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

1613 Misc. is being filed with this Court as Exhibits

1A, 1B and 1C to this Petition with a request that this Court

take Judicial Notice of such pleadings.

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

Jurisdiction and Huffman’s Dilemma.

The final judgment which closed the Cinema I Theater

in the Ohio public nuisance case was filed on November 30,

1972. The attorneys for the theater transferred the ownership

to a newly formed Corporation and on the next day filed a civil

rights action in the U.S. District Court attacking the

constitutionality of the Ohio Public Nuisance Statutes (which

required review by a three judge federal court).

On the date the action was filed, the Common Pleas

Court in Lima Ohio still had statutory jurisdiction for 30 days

for the purpose of considering post trial motions, the filing of a

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

Court did not consider this critical fact in its opinion.

In the two Huffman cases which were before this Court,

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

on “Subject Matter Jurisdiction” which, according to this

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

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

140 L.Ed.2d 210 [March 4, 1998]) and properly belonged in the

¥ 28 U.S.C. §1615(a) and 28 U.S.C. §2281 are set forth at

Appendix C to this Petition.

ie.

Ohio State Court System. This tactic was absolutely essential

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

appellate ruling on the “closure” procedure by the Ohio

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

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

Abatement cases which were then being developed using the

civil abatement process, and the Time and Motion Study and

Film Continuity Study as real evidence for the prosecution, and

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

abatement and closure of a moral public nuisance).

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

Jurisdiction in Huffman- Ohio’s Concern re Moral

Depravity, an Important State Interest under the

10™ and 11™ Amendments.

Unfortunately, this Court avoided answering the “subject

matter jurisdiction” question which was squarely raised in the

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

of Mandamus after Solicitor General Robert Bork informed the

Court that the “Jurisdictional Statement” on the mandatory

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

question “could” (not “would”) be addressed in that case when

this Court heard that appeal pursuant to its mandatory appellate

jurisdiction of the three Judge Court Judgment.

In 1973, the National need for a decision upholding the

subject matter jurisdiction of a state court on important state

matters such as the abatement of moral public nuisances

pursuant to Chapter 3767 of the Ohio Revised Codes and the

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

depravity” which then was being exhibited by the escalating

pornography industry and porn industry films, such as the film

“Deep Throat”, (which “glorified” sodomy per 0.5. [oral

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

Theater in Lima, Ohio (see Exhibits 1A, and 1B to this

Petition) and on motion picture screens in each of the 50 States.

The federal courts were wrongfully being employed by the

sigs

porno industry to interfere with the 10™ and 11‘ Amendment

efforts of law enforcement to produce real evidence of such

hard-core films in the state courtrooms using the search warrant

process and the subpoena duces tecum process. See, for

example, Hicks v. Miranda, 422 U.S. 322 (1975) as an example

of the intrusive litigation faced by law enforcement.

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

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

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

“Natural Law’ and Judaeo Christian moral standards, and

acknowledged as such by an overwhelming majority of the legal

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

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

Emeritus, University of Hastings College of Law had instructed

Counsel of Record herein (as a first year law student in Prof.

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

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

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

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

IV(C) The Prosecuting Attorney’s Interests Versus

This Court’s Interests in Huffman.

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

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

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

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

Foundation Law Press, 3° Ed., (first published in 1955) at Appendix B to

this Petition, which reads in part:

e The ancient city of Sodom, reputedly destroyed because

of its unspeakable vices, is the source from which the word

‘sodomy’ is derived. The offense was regarded with such

abhorrence in the early days that Blackstone literally refused to

name it, referring to it only as ‘the infamous crime against

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

achieved). *

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

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

1613 Misc. was purposely comprehensive * and tailored to the

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

who later undertook a study of those documents would

immediately recognize the jurisdictional issue being raised and

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

This Court was thinking of the Federal Judiciary’s own

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

practical aspects of the case in relation to the State of Ohio.

At Oral Argument, Justice Stewart asked if Ohio would

be satisfied if the Younger Rule in criminal cases were extended

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

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

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

was properly before the Court- realizing that the State of Ohio

had a very real need for an Ohio Appellate Ruling by the Ohio

Supreme Court, and the U.S. District Court had interfered with

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

important State Interest.

Counsel of Record recalls that, during oral argument,

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

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

procedural decisions in their attempts to introduce the “prints”

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

before the State Courts on the merits) this Counsel stated, as his

opinion, that the federal courts’ ruling in the Huffman case was

underwriting “cocksucking and whore mongering”— language

4 The prayers in the appeal in Huffman v. Pursue, Ltd., No. 72-296

and in the Petition for a Writ of Mandamus in No. 72-1613 Misc. are set

forth at Appendix D to this Petition.

See, in particular, Petitioner Murphy’s Exhibit 1C to this Petition

(at “Appendix C”, pages C-7 through C-10) the pleading by reference of

the time/motion studies of the films named, at paragraph 7(j) and 10(c) of

the Complaint to abate the Cinema I Theater as a public nuisance.

never before used by this Counsel in his professional career, or

in conversation. This Counsel had determined that he would

make the statement if such a statement became necessary. It

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

Court was determined to extend the Younger Rule to civil

cases, and would say or do no more.

Unfortunately, the fractured nature of the Court in 1975

prevented the Justices from coming together on the 11"

Amendment issue. Instead of remanding the case to the Ohio

Judicial System for further proceedings, the majority of Justices

complied with their duty by addressing the jurisdictional issue

obliquely in a technical sense and formulated the “Huffman

Abstention Doctrine” (as a proper response to the rudimentary

rule of law that a federal court has jurisdiction to determine

jurisdiction). Proof of the correctness of this “jurisdictional”

analysis can be found in the last paragraph of the Court’s

Opinion in Huffman v. Pursue, Ltd, supra, reading:

7 We therefore think that this case is appropriate

for remand so that the District Court may consider

whether irreparable injury can be shown in light of

‘Without a Stitch,’ and if so, whether that injury is of

such a nature that the District Court _may assume

jurisdiction under _an exception to the policy against

federal judicial interference with state court proceedings

of this kind. The judgment of the District Court is

vacated and the cause is remanded for further

proceedings consistent with this opinion. (Our

emphasis. )

The opinion failed to instruct that the real issue before the High

Court was “which of the two courts had subject matter

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

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

This Court Can, and must Correct That Defect.

That Huffman had prevailed on his appeal was no great

victory. The “battle” was won, but the war was lost. Huffman

acknowledged that reality by filing a Petition for Rehearing (see

Exhibit 1B to this Petition), which was summanily denied. The

case was not remanded back to the Ohio Appellate Courts for

their consideration, as requested by the State of Ohio in its

Appeal, and the “closure” issue was never resolved. Pursue,

Ltd. refused to litigate further and disappeared.

Counsel of Record respectfully submits that, in view of

the above history, the Huffman Abstention Doctrine as it is

presently being administered is wrong-headed. It was

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

jurisdiction from 11™ Amendment jurisdiction, and should

have been applied by the U.S. District Court. However, during

the past 24 years this Court has never come together and stated

that background fact clearly (as a fiat) in any of the many

opinions on Abstention.

This Court can and should correct that defect in this case

upon the facts set forth in this Petition by issuing a Rule Nisi,

ordering U.S. District Judge Charles R. Wolle to vacate his

judgment in the trial court for lack of subject matter jurisdiction

under the 11™ Amendment, the Huffman Abstention

Doctrine and its progeny: Middlesex, supra, Migra, supra,

University of Tennessee, supra, and Plough, supra; and under

the Rooker-Feldman Abstention Doctrine, the Res Judicata

Doctrine and the Stare Decisis Doctrine of this Court.

V The Federal Court’s Fundamental Error: Ignoring

the “Protest” Statute. The Federal Court Does Not

Have and Cannot Acquire Personal Jurisdiction of

the Parties Necessary to Acquire Article 3, §2

Subject Matter Jurisdiction (Petitioner Murphy and

the Two Other “Protesters”)

In Petitioner Murphy’s case, both the U.S. District Court

and the Court of Appeals for the 8™ Circuit resolved the

problem by simply ignoring the Iowa “Protest” Statute which

gave Petitioner the right as a real property owner to oppose a

change of zoning within 200 feet of his residential apartment

complex, and thus oppose the building of Planned Parenthood’s

Abortion facility. The deliberate silence and refusal of both the

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

8™ Circuit to address that issue is plainly wrong. It is

tantamount to striking the Iowa “Protest” Statute and is a

denial of due process of law, where this is done by refusing to

hear oral argument or write an explanatory judicial opinion to

explain what it has done °.

Planned Parenthood would prefer to have its alleged

cause of action heard as a civil rights action in the U.S. District

Court by Judge Charles R. Wolle, and not as a civil zoning case

in the lowa District Court by an Iowa District Judge. However,

Planned Parenthood does not, perforce, have that option.

First of all, Petitioner Murphy does not want to have the

incidents of his “Iowa” real property (zoning) rights heard as a

federal matter in a civil rights action in the U.S. District Court,

nor does he want to hire an attorney to perform services in the

federal court which are the responsibility of the City of

Bettendorf in its role as “parens patriae”. Rightfully or

wrongfully, he is satisfied from the objective facts as

summarized hereinafter at Points VI and VII, that Judge Wolle

has a mind-set which favors Planned Parenthood. Petitioner

therefore relies upon his personal right as a citizen of lowa to

demand that the incidents of his Iowa citizenship and real

property ownership be adjudicated in the Iowa District Court as

required by the 11™ Amendment, and that they not be

adjudicated in the U.S. District Court.

£ Although this Court’s mandatory appellate jurisdiction pursuant

to 28 U.S.C. §2281 was repealed in 1976, its moral responsibility to grant

relief in cases like this remains, pursuant to Chief Justice Burger’s promise

to the U.S. Congress to hear such cases under its certiorari jurisdiction, if

such a case did arise. See 28 U.S.C. §2281 at Appendix C to this Petition

§2.14 “Appeal Jurisdiction Over Three-Judge District Courts— History,

Interpretation and Demise”, pages 98-111.

ihe

In other words, Petitioner Murphy wants the red letter

of the law (11™ Amendment) to be enforced against Planned

Parenthood. Since Murphy is bound by the 11™ Amendment,

and cannot file a zoning lawsuit in the federal court against the

City of Bettendorf, lowa, a Home Rule City, which acts in the

stead of the State, then Planned Parenthood should not be

allowed to do so either.

Petitioner Murphy cannot be made a defendant in a

federal civil nghts action because he is not a state “actor ’.

Murphy’s appearance in Clarence Murphy _v. Planned

Parenthood of Greater Iowa, Inc., No. 98-1222 and In Re

Clarence Murphy, No. 98-1221, was a special appearance for

the purpose of objecting to the Article 3, §2 subject matter

jurisdiction of the Federal Civil Rights action.

The record discloses that the Federal District Court lacks

personal jurisdiction over Petitioner Murphy, who is known to

possess a lawful property right with respect to the C-5 Zoning

disposition and who therefore would be a necessary party in any

federal action involving a zoning classification of the Planned

Parenthood property.

VI The Importance and Complexity of the

11™ Amendment Challenge.

Because the City Council’s determination of fact is a

quasi-judicial act, per se, the 11™ Amendment challenge is a

critical factor. Under the 11™ Amendment, judicial and quasi-

judicial decisions on important state matters are to be tried in the

state courts and are excluded from the Article 3, §2 subject

matter jurisdiction of the Federal Courts (“The Judicial Power

of the United States shall not be construed to extendto . . .”).

Although the 11™ Amendment right is jurisdictional and is

never “waived”; realistically speaking, it may be lost if the

“claim is not persistently pursued to its ultimate conclusion.

A lawsuit involving an important state matter and an

11™ Amendment issue will be within the concurrent subject

matter jurisdiction of the federal district courts if the onan

-19-

Amendment privilege is not claimed and persistently pursued.

See Wisconsin Dept. of Corrections v. Schacht, supra. One

must use the privilege (pursue the claim) or lose it y

A federal trial judge with an inflexible mindset and the

“power” to assess substantial attorney’s fees under 42 U.S.C.

§1988 which are not available in Iowa courts in an appeal from

the determination of a city council on a C-5 zoning ordinance

involving a zoning “protest”, can defeat a litigant by ignoring the

11™ Amendment challenge with the expectation that the laws

of probability will prevail and the 11™ Amendment claim will

eventually “evaporate”. It is this facet of the 11™ Amendment

issue which makes the solution to this jurisdictional problem so

elusive and so necessary at this time.

If the constitutional issue as to subject matter jurisdiction

cannot be resolved at the outset, incalculable harm to the

Y In this regard, Counsel of Record requests this Court to take

judicial notice of one historical account of this problem as described in his

Petition for a Writ of Mandamus and/or Prohibition, etc., in In Re State

—

of Iowa, acting by and through Pottawattamie County Attorney Richard

D. Crowl, Jr., No. 98-1565 SIDM, in the U.S. Court of Appeal for the 8™

Circuit. A copy of the Pottawattamie County petition is attached as

“Exhibit A” to Exhibit 2 to this Petition. That petition was filed in the 8™

Circuit on February 26, 1998 and similarly was denied without opinion on

March 11, 1998. Unfortunately, a political decision prevented the efforts

of the Counsel of Record to take an appeal to the U.S. Supreme Court of the

8™ Circuit’s refusal to act on the Petition and render a decision on the

Jurisdictional question. See the concurring opinion of Associate Justice

Kennedy in Wisconsin Dept. of Corrections v. Schacht, on writ of

certiorari to the U.S. Court of Appeals for the 7™ Circuit, No. 97-461, 524

U.S. __, 141 L.Ed.2d 364 at 375-378 (June 22, 1998). Associate Justice

Kennedy’s concurring opinion points out the advantage of focusing on the

“lack of subject matter jurisdiction” approach to the 11™ Amendment

problem. Petitioner submits that if this Court grants the Writ in this case

and adopts a “use it (the peremptory writ) or lose it (11™ Amendment

defense)” rule and izes the use of an original writ of mandamus to

ect_a plea of lack of subject matter jurisdicti an 11™

Amendment claim, as it appears to have done in Puerto Rico Aqueduct

and Sewer Authority v. Metcalf & Inc., 506 U.S. 139 (1993), a good

part of the problem on subject matter jurisdiction will be solved.

- 20 -

individual states may result. That “state” right may never be

addressed, and may be forever lost

In this case, there is also a need for a remedy as to the

appellate rights of Petitioner Murphy which were abandoned by

the “parens patria” City of Bettendorf, under pressure from the

U.S. District Court in relation to the attorney’s fees which were

wrongfully being assessed under 42 U.S.C. §1988 in as much as

the State court does not authorize attorney’s fees in an ordinary

zoning case. See Point IX at page 26, infra.

VII The Wrongful Bias and Pressure Exercised by

Judge Wolle Is a Matter of Public Record.

The wrongful bias of U.S. District Judge Woile is

evidenced in his contradictory pre-trial and post-trial rulings,

which have placed him in a “bear trap”.

In his pre-trial Order of December 8, 1997, denying the

application of the Doctrine of Res Judicata which Bettendorf

See, in this regard the problem involved in In Re State of Iowa,

acting by and through Pottawattamie County Attorney Richard D. Crowl,

Jr., etc., supta, at footnote 7 on page 19 of this Petition for Writ of

Mandamus.

See, also, the copy of the Pottawattamie County Petition for Writ

of Mandamus which is attached as “Exhibit A” to Exhibit 2 to this

Petition at pages 22 and 24 (at #16, PA 174-177, v.1, #20 PA 222, 232-

241, v.1 and #21 PA 244-245, v.1). Copies of the pleadings referred to as

Docket Nos. 16, 20 and 21 are filed with this Court at Appendix A to

Petitioner Murphy’s Application for Leave of Court to File Petition to

Intervene and Petition for Writ of Mandamus in Excess of Applicable

Page Limits filed with this Court on January 22, 1999 in In Re Clarence

Murphy, Application No. A-612.

Petitioner contends that the 8™ Circuit denial of the Pottawattamie

County Petition would have been reversed by this Court (had a petition for

writ of certiorari been filed) as addressed by Associate Justice Breyer in that

part of his majority opinion reading, “We repeat our conclusion: a state’s

proper assertion of an Eleventh Amendment bar after removal means that

the federal court cannot hear the barred claim.”, in its June 22, 1998

decision in Wisconsin Dept. of Corrections v. Schacht, 524U.S.___, 141

L.Ed.2d 364 at 375-378, No. 97-461.

had pleaded (see Exhibit 2 (#32, PA 182, v.1] to this Petition),

Judge Wolle, in_his “overriding” desire to retain personal

jurisdiction of the case for “trial”, ruled (incorrectly) that

Planned Parenthood need not pursue its state court remedies:

_ Defendant’s first motion has no merit because

plaintiff is not required to exhaust state court remedies

before bringing a suit under 42 U.S.C. §1983 in federal

court. See Edwards y. Balisock, 117 S.Ct. 1584, 1589

(1997).” (Our emphasis.)

However, in his final Order five (5) months later, dated May 11,

1998 (see Exhibit 5 to this Petition [at #66, PA 542, v.3]), in

his “overriding” desire to avoid the Stare Decisis Doctrine that

was posed by his own decision in Plough v. West Des Moines

Community School District, 70 F.3d 512(CA8™ 1995), Judge

Wolle ruled the exact opposite, that is, that Planned Parenthood

had no state court remedies:

“ . . The plaintiff here had no full and fair opportunity

to present its issues to a judicial body before filing its

complaint in this court.” “ (Our emphasis.)

Further, the wrongful pressure (threat) of substantial

attorney’s fees being placed upon the City of Bettendorf by

Judge Wolle is reflected in his ruling on March 17, 1998, when

he refused to make the defendant’s different and expanded

% Judge Wolle’s Order flies in the face of the Res Judicata Doctrine

enunciated in the Plough, supra, decision, in which Judge Wolle was the

Trial Judge. See, also, Parratt v. Taylor, supra, at Point IX, page 26, et

seq., infra. Having abandoned its State Court remedies, Planned

Parenthood now has no remaining cause of action.

1 This “Finding of Fact”, on May 11, 1998 by U.S. District Court

Judge Wolle, read in conjuncture with his December 8™ Order, is an

improper reflection upon the Iowa State Judicial system and its Courts, and

is not supported by the facts or the law as expressed by this Court. The

State Courts are presumed to be qualified to act fairly in relation to

Constitutional questions.

findings of fact and ruled (threatened) instead:

“The court may expand its findings of fact at the

time it rules on the plaintiff's application for attorney

fees, now scheduled to be heard by telephone conference

call on Tuesday, May 24, 1998.” (Our emphasis. );

see Exhibit 4 to this Petition (at #47, PA 377, v.2).

Judge Wolle’s refusal to recuse himself iv his contrary

(erroneous) rulings, his power as a Federal Judge to assess

attorney fees, where attorney fees are not available in an lowa

state court proceeding, and his statement on the record that he

might “reconsider” his “findings of fact” at the next scheduled

hearing where he would be considering Planned Parenthood’s

application for attorney fees, pressured the City of Bettendorf

into settling the attorney fees issue with Planned Parenthood

before the date set by the U.S. District Court. Judge Wolle’s

Order, dated March 23, 1998, in its entirety reads:

. The hearing on attorney fees scheduled to be

held at 8:00 a.m. on Tuesday, March 24, 1998 is

canceled. Counsel have informed the court that the

issue is likely to be settled without a hearing.

By April 8, 1998, counsel shall report to the

court whether or not a hearing will be needed.”

see Exhibit 4 to this Petition (at #47, PA 378, v.2).

Judge Wolle also refused to grant a Renewed Petition

for oral argument, after Counsel of Record had developed an

extensive trial court Brief on the Issues and Facts before Judge

Wolle. See Petitioner Murphy’s Renewed Request for Oral

Argument Pursuant to Local Rule 14(c) and Good Cause

Shown on Issue of Intervention, Res Judicata, and Lack of

Subject Matter Jurisdiction which was filed May 22, 1998 at

Exhibit 5 to this Petition (at #68, PA 548-551, v.3)

1Y A copy of the Motion to Recuse and Order Thereon is attached

at Appendix E.

Vill The Huffman Abstention Doctrine Needs to Be

Re-Examined: it Is Singular in Purpose and Narrow

in Scope, Being Specifically Designed to Resolve the

“Lady or the Tiger” Jurisdictional Dilemma (11™

Amendment or Article 3, §2 [Ex Parte Young]

Subject Matter Jurisdiction?).

Petitioner contends that Chief Justice Rehnquist’s

Opinion for the Court in Huffman v. Pursue, Ltd, 420 U.S.

592 (1975), is quite clear. The Huffman Abstention Doctrine

is: (1) narrow in scope, and (2) was designed to treat a specific

problem; that is, its function as an ““Abstention Doctrine” is to

determine which court has “subject matter jurisdiction”. It was

crafted by the U.S. Supreme Court in 1975 as_a doctrinal

solution to resolve the “Lady or the Tiger” jurisdictional

dilemma a federal court faces in 42 U.S.C. §1983 cases with

respect to the 14™ Amendment claim and the conflicting 11™

Amendment claim of Ohio Prosecuting Attorney Huffman in

Huffman v. Pursue, Ltd., supta,, See Frank R. Stockton’s

“The Lady or the Tiger” (1844):

ss He could open either door he pleased. . . . If

he opened the one, there came out of it a hungry tiger,

the fiercest and most cruel that could be procured,

which immediately sprang upon him, and tore him to

pieces, as a punishment for his guilt. . . . But if the

accused person opened the other door, there came forth

from it a lady, the most suitable to his years and station

that his Majesty could select from his fair subjects. . . .

So I leave it with all of you: Which came out of the

door— the lady or the tiger?”

See also, the theoretical analysis set forth in the first full

paragraph on page 27.

~ 24.

VIII(A) “Apples” (The Younger Abstention

Doctrine and the Huffman Abstention Doctrine) and

“Oranges” (Other General Abstention Principles)

must Be Distinguished. Although the Younger

Abstention Doctrine and the Huffman Abstention

Doctrine Are Solidly “Rooted” in Watson v. Buck,

313 U.S. 387 (1941), They Are Distinguishable from

Each Other and from Other Abstention Doctrines.

Their Primary Function Is to Determine Which

Court Has “Subject Matter Jurisdiction”.

The conflict between Article 3, §2 (Ex Parte Young)

and the 11™ Amendment subject matter jurisdiction is

unrelated to other general principles of abstention. See Chief

Justice Rehnquist’s remarks in this regard in Huffman, supra,

at 420 U.S. 604-605 and the distinction drawn in the concurring

opinion of the then Circuit Judge Anthony Kennedy in his

argument on the bench in World Famous Drinking Emporium,

Inc. v. City of Tempe, Arizona, 820 F.2d 1079 at 1084

(C.A. 9™ 1987).

It is important to note that, although both the Younger

Abstention Doctrine, Younger v. Harris, 401 U.S. 37 (1971),

and the Huffman Abstention Doctrine, Huffman v. Pursue

Ltd., 420 U.S. 592 (1975) are “rooted” in Watson v. Buck, 313

U.S. 387 (1941), they are separate “narrow” Rules of Law and

each has its own “distinct” attributes. As such, they are different

kinds of “apples”.

VITI(B) Younger Abstention and Huffman

Abstention Are Distinguishable.

The Younger Abstention Doctrine resolved a conflict

between two sovereigns (Federal Judiciary and State Judiciary)

in which the federal plaintiff sought to enjoin the State

Sovereign pursuant to the 14™ Amendment and 42 U.S.C.

§1983 from prosecuting the plaintiff in the State Court under an

allegedly unconstitutional State Statute. If the Younger

Abstention (procedural) elements exist 2/, the Federal Court

must: (1) abstain, and (2) dismiss, unless the Court can find

and determine the existence of either: (a) “extraordinary

circumstances”, or (b) that “the danger of irreparable injury is

great and immediate”, with the Burden of Proof resting on the

party urging Article 3, §2 federal jurisdiction. See Pennzoil

Co. v. Texaco, Inc. , 481 U.S. 1 (1987)

In the case of the Huffman Abstention Doctrine, the

relevant elements are different. In addition to the conflict of

Sovereign Powers, the relevant elements in the Huffman

Abstention Doctrine are: State Court “Subject Matter

Jurisdiction” re civil litigation under the 11™ Amendment

(Judicial Powers) and other “substantial” State Interests (Rights)

(Legislative, Judicial, and Administrative) with the 11™

Amendment being asserted as a State “Right” and defense to

defeat Article 3, §2 Federal “subject matter jurisdiction” by the

existence of either: (a) a pending state judicial action, or (b) the

filing of a Declaratory Judgment in the State Court which places

in issue all of the state and federal constitutional issues raised in

the U.S. District Court “civil nghts action”, under the aegis of

the Hicks v. Miranda Doctrine, 422 U.S. 322 (1975) where:

(1) the 42 U.S.C. §1983 “Civil Rights Action” which has been

pleaded in the Federal Court (including money damages)

can also be pleaded and heard in the pending civil action in the

State Court (not available in Younger Abstention in criminal

litigation), and (2) the additional issues as to the applicability of

the anti-injunction statute, 28 U.S.C. §2283 in the light of the

12/ In the case of Younger Abstention, at best, Quackenbush v.

AllState Ins. Co., __:;U'S. ___, 116 S.Ct. 1710 (1996) presents a

substantial Federal Question. See, for example, Martinez v. Newport

Beach City, 125 F.3d 777 at 781, fn. 4 and 5 (9™ Cir. 1997) and Deakins

v. Monaghan, 484 U.S. 193 (1988).

1 In the case of Huffman Abstention, Quackenbush, supra, is

irrelevant. All constitutional issues, including money damages can be

heard in the State Court.

- 26 -

asserted trial facts, where the State has challenged both the

concurrent (Article 3, §2) federal jurisdiction and the Ex parte

Young, supra, “fiction” and requires that all issues (including all

federal constitutional issues and the Ex parte Young “fiction”

and “damages”) be resolved in the State Court system. See

Point IX and Parratt v. Taylor, supra, hereinafter at page 26.

If the Huffman Abstention elements exist (plus an

insistent State demand that the 11‘? Amendment is not and

cannot be waived and that the “substantial” state interest must

be tried in the State Court) and the three part Huffman-

Middlesex (457 U:S. 423 [1982]) test is satisfied, the Court

must abstain and dismiss the federal action, unless the Federal

District Court finds and determines: (1) the existence of

“extraordinary circumstances”, or (2) that “the danger of

irreparable harm is great and immediate”. In such a case,

Article 3, §2 federal jurisdiction does not exist in the absence of

proof of extraordinary circumstances, or the dangers of

irreparable harm which is great or immediate.

It must be observed and emphasized that the three part

“Middlesex” test, in Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423 (1982), applies to

Huffman (civil) Abstention cases, and is not a part of the

Younger (criminal) Abstention doctrine (where the issue of

“damages” cannot be litigated, see Deakins v. Monaghan, 484

U.S. 193, 98 L.Ed.2d 529 at 540, fn. 6 [1988] and Lewis v.

Beddingfield, 20 F.3d 123 at 125 [C.A. 5, 1994]) although

federal reported decisions often do not note this distinction.

IX Because it Had an Adequate State Court Remedy

(Appeal from a Zoning Determination), Planned

Parenthood Has Not, and Cannot State a Cause of

Action under 42 U.S.C. §1983, Nor Is it Entitled to

Attorney Fees under 42 U.S.C. §1988.

Here, Allen v. McCurry, 449 U.S. 90 at 100 (1980) and

Parratt v. Taylor, 451 U.S. 527 (1981) act as a bar. Because

there is an adequate state remedy, the federal forum is barred

es a

from entertaining an action.

In a 42 U.S.C. §1983 civil rights action such as this,

because Article 3, §2 federal jurisdiction is dependent upon the

“fiction” created in Ex Parte Young, 209 U.S. 123 (1908), the

jurisdiction of the federal court is terminated upon a

determination that the assertion of the Huffman Abstention

Doctrine is applicable, because the “fiction” of Ex Parte Young

is dispelled by the assertion of a valid 11™ Amendment claim

that the state action is lawful. At that point, the federal court is

under the constraint imposed by the 10™ and 11™

Amendments and is required to dismiss the lawsuit and the civil

rights claim must be pleaded and proved in the state action.

This Court should not allow enforcement of “Home

Rule” 11™ Amendment rights under state zoning laws to

become obfuscated by Planned Parenthood’s spurious

constitutional claims.

The focus of Parratt is not whether there has been an

exhaustion of state remedies in order to establish the

jurisdictional prerequisite; rather, Parratt deals with the

definition of a constitutional deprivation !/. No cause of action

1/ Parratt dealt with a tortuous loss of property as a result of a

random and unauthorized act by a state employee, which was not the result

of some established state procedure. Note that in the area of land use

planning, several federal court have considered the possibility that denials

of zoning permits, especially at the initial state before administrative

appeals, do not work constitutional deprivations, because until the state

process is final (state administrative and appeals process completed),

unsuccessful applicants possess at most a “unilateral expectation,” which

does not constitute a constitutionally protected property interest. These

cases recognize that a State’s interest in land use planning is considerable.

See Albery v. Redding, 718 F.2d 245 (7™ Cir. 1983); Scott v. Greenville

County, 716 F.24 1409, 1419 (4™ Cir. 1983); Creative Environments, Inc.

v. Estabrook, 680 F.2d 822, 829-834 (1% Cir. 1982), cert denied, 459 U.S.

989 (1982); LaSalle National Bank v. County of Lake, 579 F.Supp. 8 (ND

Ill. 1984); Brown v. Brienen, 722 F.2d 360, 369 (7™ Cir. 1983) (Plaum,

J. concurring); Chiplin Enterprises v. City of Lebanon, 712 F.2d 1524,

1527 (1 Cir. 1983); Deerfield Medical Center v. City of Deerfield Beach,

661 F.2d 328, 331, n. 4 (5™ Cir. 1981). See also Molgaard v. Town of

under 42 U.S.C. §1983 has or can be stated where there is an

adequate state court remedy.

The ordinances in question are constitutional on their

face in that they are capable of being constitutionally construed

by both state administrative and judicial officials, had they been

given that opportunity. While Planned Parenthood seeks to

challenge the constitutionality of certain zoning ordinances, as

applied, these questions could have been adequately addressed

(assuming they were relevant) by the state court in reviewing the

City Council’s zoning denial.

Huffman Abstention requires that federal courts refrain

from interfering with state court review of administrative

application of state law, where the state has enforced its laws or

has begun to enforce them. See, also, Ohio Civil Rights

Comm’n. v. Dayton Schools, 477 U.S. 619 (1986) (the Court

applied the articulation found in Middlesex Ethics Comm. vy.

Garden State Bar Assn., 457 U.S. 423 [1982] of Younger

Abstention to ongoing state administrative proceedings, judicial

or otherwise, in which important state interests are vindicated

and in which the federal plaintiff would have a full and fair

opportunity to litigate constitutional claims); and Pennzoil Co.

v. Texaco, Inc., 481 U.S. 1 (1987) (Texaco [state defendant]

did not seek available state remedies, but filed an injunctive

action in federal court which sought to enjoin Pennzoil [state

plaintiff] from taking action to enforce a multibillion dollar

judgment that a Texas state court rendered against Texaco. The

Court found that the existence of an available state forum in

which Texaco could have raised its claims [which forum the

court held would be considered adequate until proved

otherwise] barred Texaco’s federal action.)

State proceedings (not tainted by bias, bad faith or

harassment) for which the state offers statutory appellate review

through its courts, or otherwise, are pending for Huffman

Abstention purposes from the time it is initiated, until it has

completed the review process. The City of Bettendorf began

Caledonia, (DC Wisc. 1981) 527 F.Supp. 1073, aff'd. 595 F.2d 58.

- 29.

the adjudicative process of enforcing its laws when it initiated

the quasi-judicial administrative zoning proceeding, which

resulted in a determination by the City Council that the zone

change should not be granted. The availability of state judicial

review created an adjudicative continuum which existed at the

time Planned Parenthood filed its federal complaint. Alleghany

Corp. v. Haase, 708 F.Supp. 1507 (W.D.Wis. 1989) at 1515-

1519. The same Huffman Abstention concerns that apply to

ongoing administrative proceedings apply to ended

administrative proceedings, where state court review is

available. Alleghany Corp. v. Haase, supra, at 1515. See also

Sun Refining & Marketing Co. v. Brennan, 921 F.2d 635 (6™

Cir. 1990) at 639-640, citing World Famous Drinking

Emporium, etc., 820 F.2d 1079 (9th Cir. 1987) (Court found

federal plaintiff clearly had unexhausted state appellate remedies

where it had an opportunity to appeal decision of Board of

Building appeals through state judicial system, holding “there

was therefore an on-going state proceeding in this case” at the

time the federal complaint was filed and that the Huffman

Abstention Doctrine was applicable).

In this case, Planned Parenthood’s filing of a civil rights

action in the U.S. District Court is a clear example of an

unauthorized collateral federal appeal in violation of the Rooker-

Feldman Abstention Doctrine which substantially disrupts and

interferes with state appellate procedures which are en train 1*/

1’ The same jurisdictional issue was before the United States

Supreme Court in Huffman, supra. There the Lucas County Common

Pleas Court had entered a final injunction of “closure” on a hard-core

pornographic theater, after holding that the autoptical evidence (film and

time and motion studies) established that a public nuisance existed at that

theater under the Ohio Red Light Abatement Statute. The entry of that

final injunction started the running of the statutory time for filing an appeal

to the Court of Appeal and Ohio Supreme Court. Because the federal trial

court wrongfully assumed jurisdiction and granted injunctive relief, the

important adjudication of “closure” was prevented from being adjudicated

by the Appellate Courts in the Ohio Judicial System.

230%

CONCLUSION

Accordingly, this Court should grant the relief as

requested hereinabove, and by Rule Nisi order that the Petition

to Intervene pursuant to F.R.C.P. 24(a)(2) be granted, and that

the Petition for Writ of Mandamus, requiring that Judge

Wolle’s Judgment be vacated for lack of subject matter

jurisdiction, pursuant to the 11™ Amendment, the Huffman

Abstention Doctrine, the Rooker-Feldman Abstention

Doctrine, the Res Judicata Doctrine and the Stare Decisis

Doctrine, be granted or that the U.S. District Court show cause

why such relief should not be granted.

March 4, 1999 at Vou. 5

Gx: J. Cladcy, Attorney = hag

ifornia State Bar No. 26946

9055 La Tuna Canyon Road

La Tuna Canyon, California 91352-2221

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

for Petitioner Clarence Murphy.

DECLARATION

I, James J. Clancy, declare that I have read the above

Petition for Writ of Mandamus, that | am familiar with the

contents thereof and that the same are true and correct as I

verily believe.

I declare under penalty of perjury under the laws of the

State of California that the foregoing is true and correct and that

this Declaration was executed on March 4, 1999 at 9055 La

Tuna Canyon Road, La Tuna Canyon, California 91352-2221.

SSree AC inte”

ames J. Cling ()

Aftorney fotPetitioner

APPENDIX A

ORDERS

ORDER OF THE U.S. DISTRICT COURT IN PLANNED

PARENTHOOD, ETC., V. CITY OF BETTENDORF, IOWA, NO. 3-97-

CV-80056, DATED DECEMBER 8, 1997., .......-+eeeeeees A-1

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., 2.0.0... cece eee eeeeees A-3

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., ... 2.2... 6... eee eee eee A-6

ORDER OF THE U.S. DISTRICT COURT IN PLANNED

PARENTHOOD, ETC., V. CITY OF BETTENDORF, IOWA, NO. 3-97-

CV-80056, DATED JUNE 1, 1998.,.. 0... 2... eee ee eee eee A-8

ORDER OF THE U.S. COURT OF APPEALS FOR THE8™ 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. 98-282S5SID, DATED JULY 23, 1998., ............ A-9

ORDER OF THE U.S. COURT OF APPEALS FOR THE 8™ CIRCUIT

IN IN RE CLARENCE MURPHY, ETC., NO. 98-2825SID, DATED

tity. a ee ee ee ae A-11

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. 98-2496SID, DATED OCTOBER 7, 1998., A-12

NOTICE OF ORDER ENTERED BY U.S. SUPREME COURT

ASSOCIATE JUSTICE CLARENCE THOMAS, IN JIN_RE

CLARENCE MURPHY, ETC., APPLICATION NO. A-S01, DATED

DECEMBER 21, 199B., .. 2... ccc crete cee cere ee cees A-13

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-15

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, US. DISTRICT COURT

) SOUTHERN DISTRICT OF IOWA

Plaintiff,

)

) 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.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

coun 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

lenied

IT IS SO ORDERED

. yee : P ‘ 4

Dated this 8'" day of December, 199

UNITED STATES DISTRICT COUR]

A-3

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 BETTENDORTF,

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

A-4

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 v.

Metropolitan Dade Co., 985 F.2d 1471, 1478-79 (I = te.

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 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-5

“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 Iowa, 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

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

PLANNED PARENTHOOD eee

OF GREATER IOWA, INC.. 08 MAY 11 PM 3:57

)

Plaintiff. CLERK, U.S. DISTRICT COURT

’ ) SOUTHERN DISTRICT OF IOWA

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 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 lowa 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. | previously rejected

defendant’s request that I abstain from hearing and deciding

A = /

d j

issues framed by the pleadings

Murphy’s motions are denied

IT IS SO ORDERED

Dated this 11 day of May, 1998

CHARLES R. WOLLE, JUDGE

UNITED STATES DISTRICT COURT

A-8

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. US. DISTRICT COURT

) SOUTHERN DISTRICT OF IOWA

Plaintiff,

) 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

CHARLES R. WOLLE, JUDGE

UNITED STATES DISTRICT COURT

A-9

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; .

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, IA, 7

Petitioner. °

JUDGMENT

The petition for writ of mandamus in No 98-2825 is

A-10

denied. The judgment of the district court In No. 98-2496 1s

nmarily affirmed

1998

July 23

1 at the Direction of the Court

Michael E. Gans

iohth Circuit

U.S. Court of Appeals, Eig

A-11

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, IA, =

Petitioner. ’

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-12

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 98-2496SID

Planned Parenthood, of :

Greater Iowa, Inc. e

' Order Denying Petition

Appellee ’ for Rehearing and

: Suggestion for

Rehearing En Banc

Clarence Murphy

. ] +

Appellan ,

The suggestion for rehearing en banc is denied. Ihe

ion IOT I¢ hearing DY » pane! IS aiSO denied

October |

[ ed at the Dire he Court

. if .

1ichaei KE. Gans

| ~\ ( rt ' Ant f htt (

A-13

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-501

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-14

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 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

$11 U.S. Court & Customs House

114 Market Street

St. Louis. MO 63101

A-15

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 Iowa, 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-16

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

WILLLAM K. SUTER AREA CODE 202

CLERK OF THE COl RT 479-3011

NOTIFICATION LIS]

Mr. James J. Clancy

9055 La Tuna Canyon Road

La Tuna Canyon, CA 9} 352-222

Mr. William R. Stengel Ji

305 First National Bank

100 17th Street

Rock Island, IL 61201-8751

Mr. Alan S. Gilbert

8000 Sears Tower

Chicago IL 60606-640¢

Mr. Roger K. Evans

810 Seventh Avenue

New York, NY 10019

Clerk

United States Court of Appeals fo1

the Eighth Circuit

511 U.S. Court & Customs House

1114 Market Street

St Louis, MO 63101

APPENDIX B

PAGES 465-468 OF THE TEXT OF PROFESSOR

ROLLIN M. PERKINS ON CRIMINAL LAW, THE

FOUNDATION PRESS, 3*®” EDITION (FIRST

COPYRIGHTED IN 1955).

(Reference: Petition for Writ of Mandamus at

page 13)

B-1

See Perkins on Criminal Law, the Foundation Law

Press, 3" Ed., (first published in 1955) at pages 465-468, as

follows:

The ancient city of Sodom, reputedly destroyed

because of its unspeakable vices, is the source from

which the word ‘sodomy’ is derived. The offense was

regarded with such abhorrence in the early days that

Blackstone literally refused to name it, referring to it

only as ‘the infamous crime against nature’ **” (Our

Emphasis. )

2s. 4 Bl.Comm. *215.

“This lead has frequently been followed in the statutes

many of which have been used some designation in lieu

of a name, *°

" 26. Ariz.Rev.Stat. §13-1411 (1978); Idaho

Code §18-6605 (1979); Tenn.Code Ann. §39-707

(1975).

“and it has been held that in an indictment the offense

may be charged as ‘the abominable and detestable crime

against nature.’ ?’

27. Phillips v. State, 248 Ind. 150, 222 N.E.2d

821 (1967).

: In Stone v. Wainwright, 414 U.S. 21, 94 S.Ct.

190 (1973), the United States Supreme Court upheld the

constitutionality ofa Florida statute, couched in terms of

an abominable crime against nature, against a claim of

invalidity because of vagueness.

e “Willett was convicted of three counts of an

Infamous Crime Against Nature.’ Simpson v. State, 94

Nev. 760, 587 P.2d 1319 (1978).”

B-2

‘There is almost complete accord among many

text writers that at common law commission of the

crime required penetration per anum and that

penetration per os did not constitute the offense.’

. 38. State v. Morrison, 25 NJ.Super. 534, 96

A.2d 723 (1958). Accord, Koontz v. People. 82 Colo

589, 263 P.2d 19 (1927) citing many cases, People v.

Dexter, 6 Mich.App. 247, 148 N.W.2d 915 (1967).

“

This is the logical position since sodomy was not

an offense under the common law of England and is an

offense under American common law because of the

early English statute which did not apply where the act

is in the mouth. 2?” (Our emphasis.)

3 >. Rex v. Jacobs, 1 Russ.&Ry. 331, 168

Eng Rep. 830(1817). Fora discussion see Spence, The

Law Against Nature, 32 N.C.L Rev. 312 (1954).

“It has not been uncommon, however, for this to be

added to the offense, either by express provision of the

statute *°

. 30. E.g., Ark.Stats. §41-1813 (1977),

Colo. Rev.Stat. 1973, 18-3-401(6) contained in

definition of ‘sexual penetration.’ And see State v

Putman, 78 N.M. 552, 434 P.2d 77 (App 1967).

“or by interpretation, *

. 31. State v. Altwater, 29 Idaho 107, 157 P. 256

(1916); Herring v. State, 119 Ga. 709, 46 S.E. 876

(1904);-State v. Dietz, 135 Mont. 496, 343 P.2d 539

(1959); State v. Fenner, 166 N.C. 247, 80 S.E. 970

(1914); Berryman v. State 283 ).2d 558 (Ok1.Cr. 1955);

Blankenship v. State, 289 S.W.2d 240 (Tex.Cr.1956).

And see State v. Phillips, 102 Ariz. 377, 430 P.2d 139

(1967); Hogan v. State, 84 Nev. 372, 441 P.2d 620

(1968).

B-3

“until ‘nearly all states punish fellatio (oral stimulus of

the male sex organ [and] cunnilingus (oral stimulus of

the female sex organ)’ ”

32. Model Penal Code 279 (Tent. Draft No. 4,

195S).”

“in addition to anal intercourse and bestiality. Some

states have gone even further,” . . .”

33. The District of Columbia statute adds

who shall be convicted of having carnal

copulation in an opening of the body except sexual parts

with another person. ’ D.C. Code 1973 §22-

3502.” (REPEALED May 23, 1995, two years after

President William Jefferson Clinton was sworn in as

President of the United States of America.)

ITED STATES CODE:

(REPEALED IN 1976),

PVF i of) Se (

Reference: Petition for Writ of Mandamus at

pages 6, 10-11, and 17.)

NDORFEF ZONING CODI

i 4 5

$24.4 ("PROTEST STATUTI

Petition for Writ of Mand

es 4, 6-8, and 16-18.)

<i}

;

C-]

In 1973, 28 U.S.C. §2281 (repealed in 1976) read as

follows

“$2281. Injunction against enforcement of State

statute; three judge court required

An interlocutory or permanent injunction

restraining the enforcement, operation or execution of

any State statute by restraining the action of any officer

of such State in the enforcement or execution of such

statute or of an order made by an administrative board

or commission acting under State statutes, shall not be

granted by any district court or judge thereof upon the

ground of the unconstitutionality of such statute unless

the application therefor is heard and determined by a

district court of three judges under section 2284 of this

title.”

28 U.S.C. §1651(a) and (b) reads, then and now, as foll:

“$1651. Writs

(a) The Supreme Court and all c

established by Act of Congress may issue all writ:

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principle

of law.

(b) An alternative writ or rule nisi may be issued

by a justice or judge of a court which has jurisdictio!

HIO PRAYER IN

FFMAN V. PURSUI

es*e@eeeeeee

LITION FOR WRIT OF MANDAM

NO. 72-1613 MISC.,

D-]

In the appellate case in Huffman vy. Pursue, Ltd

t~ |

2-296, supra, the State’s prayer read as follows

CONCLUSION

that the order of judgment entered on April 7

1973 in Pursue Ltd. v. Lawrence S. Huffman

CIV No. 72-432 be reversed and that said actio1

be dismissed for failure to state a claim up

which federal relief can be based

That_ State of Ohio ex rel. Lawrence §

Huffman v. William H. Dakota, et al., 72 C1\

0326 be ordered remanded back to the Court of

Common Pleas of Allen County, Ohio to permit

appellants to execute the final judgment of sa

court, entered on Nov. 3

emphasis )

T> ~

cespecti

~ |

CS J \

S La Tu

Smith, 73 CR 093 (Removed by Smith

v. State of Ohio, 73 C 180) back to the

Court _of Common Pleas of Al

County, Ohio.” (Qur emphasis )

petitioners have such additional re

hea n sccam A sate it

pe necesSaly and appr } biGLY |

R aay ee

Respectfully submitted

James J. Clancy

SS La Tuna Cany

\ ley (- The

APPENDIX E

RE MOTION TO RECUSE JUDGE WOLLE

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., .......5 ee ceee cence eeeeeees E-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).,

E-3

pea beeeceesesbeevesese ee deeeseeeseoeuaueecsceee SBeeaeecressrerr 2"

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 _O!

BETTENDORF, ETC., NO. 3-96-CV-80184 (RE 90 DAY

MORATORIUM PERIOD), FILED DECEMBER 9, 1996., .. E-S

(Reference: Petition for Writ of Mandamus at

page 22.)

Planned Parenthood of Greater

lowa, Inc.

The City of Bettendorf

Ann Hutchinson, Mayor of

Bettendorf

E-]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

FILED

DAVENPORT, IOWA

96 DEC 6 PM 2:27

CLERK. U.S. DISTRICT COURT

SOUTHERN DISTRICT OF LOWA

Plaintiff

Vs.

No. 3-96-CV-80184

Motion to Recuse

el —— a

Defendants

COMES NOW the Defendants and move to recuse

Judge Wolle from the pending lawsuit and in support whereo!

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)

Phat Judge Wolle forthrightly and of his own ¥ olition

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 1s

being extensively reported in the media

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

WHEREFORE, it is prayed that Judge Wolle be recused,

and the matters of this litigation be heard by another Judge of

the District.

Respectfully submitted,

City of Bettendorf

Ann Hutchinson, Mayor

/s/

Gregory S. Jager

City Attorney

1609 State Street

Bettendorf, lowa §2722

319/344-4000

Is/

Paul L. Macek

Assistant City Attorney

111 E Third Street

Davenport, lowa 52801

319/324-1971

Attorneys for Defendants

E-3

UNITED STATE DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

PLANNED PARENTHOOD OF

GREATER IOWA, INC.,

Plaintiff

against No. 3-96-CV-80184

THE CITY OF BETTENDORF,

IOWA, and ANN HUTCHINSON,

in her capacity as the Mayor of the

City of Bettendorf, lowa

)

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 4 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.

2. Nor are plaintiff s 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.

—_ —

_ Sf

1 BS he

.- a

- Y

)

E-5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

FILED

PLANNED PARENTHOOD OF ) DESMOINES. TOA

GREATER IOWA, INC., 96 DEC-9 PM 4:59

Plaintiff. CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

) 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, )

lowa,

)

Defendants

)

On this date the court held a hearing on the plaintiff's

request for preliminary injunctive relief.

At the outset of the hearing, | 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.