Motion To Dismiss, Bridge at Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 11-00414 ACK (July 27, 2011)

Case 1:11-cv-00414-ACK -BMK Document 14 Filed 07/27/11 Page 1 of 2 146
PageID #:
DAVID M. LOUIE 2162 Attorney General of Hawaii WILLIAM J. WYNHOFF 2558 E. DIANE ERICKSON 1975 Deputy Attorneys General Department of the Attorney General, State of Hawaii 465 King Street, Suite 300 Honolulu, Hawaii 96813 Telephone: (808) 587-2993 Facsimile: (808) 587-2999 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII BRIDGE AINA LE'A, LLC, Plaintiff, vs. STATE OF HAWAII LAND USE COMMISSION, VLADIMIR P. DEVENS, in his individual and official capacity, KYLE CHOCK, in his individual and official capacity, THOMAS CONTRADES, in his individual and official capacity, LISA M. JUDGE, in her individual and official capacity, NORMAND R. LEZY, in his individual and official capacity, NICHOLAS W. TEVES, JR., in his individual and official capacity, RONALD I. HELLER, in his individual and official capacity, DUANE KANUHA, in his official capacity, and CHARLES JENCKS, in his official capacity, JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 110, DOE CORPORATIONS 1-10, DOE ENTITIES 2-10 and DOE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11-00414 ACK BMK DEFENDANTS MOTION TO DISMISS COMPLAINT FILED JUNE 7, 2011 MEMORANDUM IN SUPPORT OF MOTION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
Case 1:11-cv-00414-ACK -BMK Document 14 Filed 07/27/11 Page 2 of 2 147
PageID #:
GOVERNMENTAL UNITS 1-10,
) ) Defendants. ) ________________________________ ) DEFENDANTS MOTION TO DISMISS COMPLAINT FILED JUNE 7, 2011 Defendants move this court, through counsel and pursuant to Fed.R.Civ.P. 7 and 12(b)(6), for dismissal of all claims filed herein. This motion is based on the memorandum attached hereto and the records and files herein. DATED: Honolulu, Hawaii, July 27, 2011.
/s/ William J. Wynhoff Deputy Attorney General Attorney for Defendants
Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 148
Filed 07/27/11 Page 1 of 49
PageID
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII BRIDGE AINA LE'A, LLC, ) Civil No. 11-00414 ACK BMK ) Plaintiff, ) MEMORANDUM IN SUPPORT OF ) MOTION vs. ) ) STATE OF HAWAII LAND USE ) COMMISSION, VLADIMIR P. DEVENS, ) in his individual and official ) capacity, KYLE CHOCK, in his ) individual and official ) capacity, THOMAS CONTRADES, in ) his individual and official ) capacity, LISA M. JUDGE, in her ) individual and official ) capacity, NORMAND R. LEZY, in ) his individual and official ) capacity, NICHOLAS W. TEVES, ) JR., in his individual and ) official capacity, RONALD I. ) HELLER, in his individual and ) official capacity, DUANE KANUHA, ) in his official capacity, and ) CHARLES JENCKS, in his official ) capacity, JOHN DOES 1-10, JANE ) DOES 1-10, DOE PARTNERSHIPS 1) 10, DOE CORPORATIONS 1-10, DOE ) ENTITIES 2-10 and DOE ) GOVERNMENTAL UNITS 1-10, ) ) Defendants. ) ________________________________ ) MEMORANDUM IN SUPPORT OF MOTION TABLE OF CONTENTS Page TABLE OF AUTHORITIES I. II. INTRODUCTION FACTS ii 1 1
PageID
III. ANALYSIS OF PLAINTIFFS COMPLAINT A. SUMMARY OF COUNTS I THROUGH XI B. ANALYSIS OF FEDERAL LAW CLAIMS IN THE COMPLAINT C. ANALYSIS OF STATE LAW CLAIMS IN THE COMPLAINT IV. SUMMARY OF ARGUMENT A. B. V. FEDERAL LAW CLAIMS STATE LAW CLAIMS
11 11 13 17 18 18 19 19 19
ARGUMENT A. 1. FEDERAL LAW CLAIMS
The individual capacity defendants are entitled to absolute judicial immunity and qualified immunity as to all claims 20 a. The individual capacity defendants are entitled to absolute judicial immunity as to all claims The individual capacity defendants are entitled to qualified immunity as to all claims
20
b.
33
2.
Claims for prospective injunctive relief cannot be brought against the Commissioners in their individual capacity Plaintiffs constitutional claims cannot be maintained against the Commission or the Commissioners in their official capacity for damages because these defendants are not persons within the meaning of section 1983 Plaintiff has failed adequately to describe and state a claim for prospective injunctive relief against the Commissioners in their official capacity or, in the alternative, this court should abstain from entering such relief
36
3.
37
4.
38
ii
PageID
5.
Plaintiff is not entitled to injunctive relief as to the taking claim This court should abstain from and stay the claim for just compensation STATE LAW CLAIMS The Commissioners in their individual capacity are entitled to absolute judicial immunity and statutory immunity/qualified privilege as to all claims against them for damages, including just compensation Hawaii law does not afford a claim for damages based on deprivation of constitutional rights Plaintiff has not stated a claim based on zoning estoppel Plaintiff has no direct claim for relief under Haw. Rev. Stat. chapters 91, 92, or 205 or HAR chapter 15-15 The court should abstain from considering the state law taking claim or any state law claims not otherwise dismissed
40
6.
41 45
B. 1.
45
2.
47
3.
47
4.
48
5.
49 49
VI. CONCLUSION
iii
PageID
TABLE OF AUTHORITIES Page Federal Cases Allen v. Iranon, 99 F. Supp. 2d 1216 (D.Haw. 1999) 37
Alto Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170 (10th Cir. 2011) 36 Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir.2001) Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) 16, 17
38
Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) 13, 14 Buckles v. King County, 191 F.3d 1127 (9th Cir. 1999) Butz v. Economou, 438 U.S. 478 (1978) Cannon v. US Bank, NA, 2011 WL 1637415 (D.Haw. 2011)
14, 15, 16, 18, 25 16, 17, 18 9 31
Cardenas v. Anzai, 311 F.3d 929 (9th Cir. Cir. 2002)
Center for BioEthical Reform, Inc. v. Los Angeles County Sheriff Dep't, 533 F.3d 780 (9th Cir. 2008) 26 Chavez v. Martinez, 583 U.S. 760 (2003) City of Los Angeles v. Lyons, 461 U.S. 95 (1983) Dolan v. City of Tigard, 512 U.S. 374 (1994) Edelman v. Jordan, 415 U.S. 651 (1974) Ex Parte Young, 209 U.S. 123 (1908) 6 32 7 30 30
iv
PageID
Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (en banc) 35 Green v. Mansour, 474 U.S. 64 (1985) Group LLC v. Hawai'i County Liquor Com'n, 681 F.Supp.2d 1209 (D.Haw. 2009) 30
36
Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056 (D.Haw. 2002) 22 Harlow v. Fitzgerald, 457 U.S. 800 (1982) Hill v. Shelander, 924 F.2d 1370 (7th Cir.1991) 25, 27 28
Kamaole Pointe Development LP v. County of Maui, 573 F.Supp.2d 1354 (D.Haw. 2008) 7, 36 Knox v. Southwest Airlines, 124 F.3d 1103 (9th Cir. 1997) Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) Malley v. Briggs, 475 U.S. 335 (1986) Mier v. Lordsman Inc., 2011 WL 285862 (D.Haw. 2011) Mireles v. Waco, 502 U.S. 9 (1991) Mishler v. Clift, 191 F.3d 998 (9th Cir. 1999) Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996) Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916 (9th Cir. 2004) Pittman v. Oregon, Employment Dept., 509 F.3d 1065 (9th Cir. 2007) Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) Romano v. Bible, 169 F.3d 1182 (9th Cir. 1999) 25 6 32 25 9 14 18, 24 14 7
24
29
32, 33 24, 25
PageID
San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087 (9th Cir. 2008)
35
San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323 (2005) 33 Saucier v. Katz, 533 U.S. 194 (2001) Scott v. Lacy, 811 F.2d 1153 (7th Cir. 1987) 27 28
Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095 (9th Cir. 1994) 26 Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir. 1996) 34 Smith v. Plati, 56 F.Supp.2d 1195 (D.Colo.1999) Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010) Younger v. Harris, 401 U.S. 37 (1971) State Cases Allen v. City and County of Honolulu, 58 Haw. 432, 571 P.2d 328 (1977) 10 Bullen v. Derego, 68 Haw. 587, 724 P.2d 106 (1986) Figueroa v. State, 61 Haw. 369, 604 P.2d 1198 (1979) 37 39 28 29 34 32, 33
Hawaii Ventures, LLC v. Otaka, Inc., 114 Haw. 438, 164 P.3d 696 (2007) 37 Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 647 P.2d 713 (1982) 37, 38 In re Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000) Kaniakapupu v. Land Use Com'n, 111 Haw. 124, 139 P.3d 712 (2006) Lanai Co., Inc. v. Land Use Com'n, 105 Haw. 296, 97 P.3d 372 (2004)
22
27
13
vi
PageID
Life of the Land, Inc. v. City Council of City and County of Honolulu, 61 Haw. 390, 453, 606 P.2d 866, 902 (1980)
39
Maunalua Bay Beach Ohana 28 v. State, 122 Haw. 34, 222 P.3d 441 (Haw.App. 2009) 10 Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974) Poe v. Hawai'i Labor Relations Bd., 105 Haw. 97, 94 P.3d 652 (2004) Punohu v. Sunn, 66 Haw. 485, 666 P.2d 1133 (1983) Seibel v. Kemble, 63 Haw. 516, 631 P.2d 173 (1981) State v. Taylor, 49 Haw. 624, 425 P.2d 1014 (1967) Towse v. State, 64 Haw. 624, 647 P.2d 696 (1982) Federal Statutes 42 U.S.C. 1983 42 U.S.C. 1988 State Statutes Haw. Rev. Stat. 26-34 (2009) Haw. Rev. Stat. 26-35.5 (2009) Haw. Rev. Stat. 91-9 (Cum. Supp. 2010) Haw. Rev. Stat. 91-10 (Cum. Supp. 2010) Haw. Rev. Stat. 91-11 (1993) Haw. Rev. Stat. 91-12 (1993) Haw. Rev. Stat. 91-13 (1993) Haw. Rev. Stat. 91-14 (1993 and Cum. Supp. 2010) Haw. Rev. Stat. 92-6 (1993 and Cum. Supp. 2010) Haw. Rev. Stat. 92-11 (Cum. Supp. 2010) 12, 22 38 19 19 20 20 20 20, 32 19, 21 41 passim 5, 6 38
20 40 37 37 38
vii
PageID
Haw. Rev. Stat. 205-1 (Cum. Supp. 2010) Haw. Rev. Stat. 205-2 (2009) Haw. Rev. Stat. 205-3 (2009) Haw. Rev. Stat. 205-4 (2009) Haw. Rev. Stat. 205-6 Haw. Rev. Stat. 632-1 Federal Rules FRCP 25(d)
12, 22 12 12 12, 13, 19 22, 23, 24 5
28
viii
PageID
I.
INTRODUCTION More than twenty-two years ago the State Land Use
Commission conditionally changed the land use district boundary of a 1060 acre parcel of land from agricultural to urban. A
succession of developers failed to meet the conditions, failed to fulfill their promises to the Commission and to the community, and failed to complete the development. In response to various developers requests, the Commission modified and extended the conditions on several occasions. The
developers, including plaintiff, did not fulfill the conditions and had no plan or schedule to do so. In 2011, the Commission
voted (after a Haw. Rev. Stat. chapter 91 contested case proceeding) to revert the land to its original land use district classification. Plaintiff challenged the Commissions action in a state court administrative appeal, ECF No. 10 (statement of related cases), and simultaneously brought this action seeking damages and injunctive relief. II. FACTS On November 25, 1987, Signal Puako Corporation (SPC) filed a petition to reclassify approximately 1060 acres of land in Waikoloa on the Big Island (the Property) from the agricultural district into the urban district. 9. Compl. 8 and
Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 10 of 49 #: 157
PageID
The Commission approved the petition on January 17, 1989, subject to various conditions. At the time, the proposed Among other things,
development involved 2760 housing units.
the Commission required that 60% of these housing units (i.e. 1656 units) be affordable. Compl. 11.
SPC transferred the Property to Puako Hawaii Properties (PHP) which filed a motion to amend the Commissions original order and reduce the number of housing units to 1550. Commission approved the motion on July 9, 1991. The
Among other
conditions, the Commission required that the development include at least 1000 affordable units. Compl. 12 and 13.
The project basically went nowhere for a decade or more. At some point PHP transferred the Property to plaintiff. On
September 1, 2005, plaintiff filed a motion to amend the 1991 order, seeking to again reduce the affordable housing component. Compl. 23. The Commission granted the motion and filed its The order was specifically
amended order on November 25, 2005.
conditioned on plaintiff submitting certificates of occupancy for at least 385 new (that is, not including 107 affordable units built off-site by a predecessor) affordable units no later than November 17, 2010. Compl. 26-29.
Plaintiff did not comply with and informed the Commission it would not comply with the conditions. On December 9, 2008,
the Commission issued an order directing plaintiff to show cause
10
PageID
why the Property should not revert to its former land use classification for failure to comply with conditions. 37-40. After extensive hearings, motions practice, and meetings, Compl. 44 and 45, the Commission orally adopted the OSC at its April 30, 2009, meeting. Compl. 50. But, before entering Compl.
a written order the Commission conditionally rescinded the OSC by order dated September 28, 2009. Compl. 60 and 61.
On July 1, 2010, the Commission voted to keep the OSC in place and hold additional hearings with respect to it. 75. Compl.
After months of additional filings, motions, meetings,
hearings, testimony, and evidence (Compl. 81-124), the Commission adopted its Apri1 25, 2011, order reverting the Property to its original agricultural classification for violation of conditions. Compl. 125.
III. ANALYSIS OF PLAINTIFFS COMPLAINT A. SUMMARY OF COUNTS I THROUGH XI
Plaintiff filed its complaint on June 7, 2011, in the Circuit Court of the First Circuit, State of Hawaii. Defendants removed the case to this court on June 27, 2011. The complaint is 61 pages long. supporting into eleven counts. It contains 225 paragraphs
Each count purports to state
claims against both the Commission and the individual Commissioners in their individual and official capacities. Each
11
PageID
count requests both injunctive and declaratory relief and damages. Count I ( 137-146) claims that all defendants violated plaintiffs due process rights under the United States and Hawaii Constitutions. Count I also claims that defendants
actions constitute a regulatory taking without payment of just compensation. Count II ( 147-159) repeats the claim that defendants action constitute a regulatory taking without payment of just compensation under both the United States and Hawaii Constitutions. Count III ( 160-169) claims that all defendants violated plaintiffs equal protection rights under the United States and Hawaii Constitutions by treating plaintiff differently than other similarly situated projects. claim. 163. This is a class of one
Count IV ( 170-177) claims that defendants actions constituted a (state) common law deprivation of plaintiffs vested rights to develop and continue developing the project. Count V ( 178-186) claims that defendants actions are or should be equitably estopped under state law. Count VI ( 187-194) claims defendants deprived plaintiff of its rights under the United States Constitution and that the deprivation is actionable pursuant to 42 U.S.C. 1983.
12
PageID
Plaintiff does not identify the specific constitutional rights at issue, but presumably it means equal protection and due process as described in counts I and II. Count VII ( 195-207) alleges that defendants violated state laws specifically Haw. Rev. Stat. chapters 91, 92, and 205 and HAR chapter 15-15 by failing to follow those laws and rules at various hearings and proceedings. Count VIII ( 208-214) claims that defendants attached unconstitutional conditions to plaintiffs development in violation of both the United States and Hawaii Constitutions. Count IX ( 215-216) details the injunctive and declaratory relief that plaintiff seeks under its various theories. Count X ( 217-221) repeats the injunctive and declaratory relief that plaintiff seeks, this time specifying that it seeks these rulings pursuant to Haw. Rev. Stat. 632-1 and HRCP 57. Count XI ( 222-225) seeks an award of attorneys fees pursuant to 42 U.S.C. 1988. B. ANALYSIS OF FEDERAL LAW CLAIMS IN THE COMPLAINT
Shorn of its repetitive and overlapping elements, the complaint alleges two federal law claims. First, plaintiff claims that defendants deprived it of constitutional rights, specifically its right to equal
13
PageID
protection, procedural due process, and substantive due process. Counts I, III, and VI. To the extent plaintiff refers to the Fifth Amendment in making this claim (e.g. 141 and 142), that is not quite right. [T]echnically [this] is a Fourteenth Amendment claim,
since it is only through the Fourteenth Amendment that the Fifth is made applicable to the States. Chavez v. Martinez, 583
U.S. 760, 780 fn. 1 (2003) (Scalia J. concurring) (emphasis in original; citation omitted). See Lee v. City of Los Angeles,
250 F.3d 668, 687 (9th Cir. 2001) (The Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government-not to those of state or local governments.) Moreover, plaintiff has no cause of action directly under the United States Constitution. The Ninth Circuit has
repeatedly held that a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. 1983. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d For that reason, Count VI is not an
912, 925 (9th Cir. 2001).
independent claim but overlaps with the deprivation claims in Counts I and III. Similarly, 42 U.S.C. 1988 provides that the
prevailing party in a section 1983 claim is entitled to an award
14
PageID
of attorneys fees. action.
Count XI is not an independent cause of
Second, plaintiff claims that defendants actions constitute a regulatory taking. Counts I, II, and VIII.
Plaintiff styles Count VIII as an unconstitutional conditions claim based on Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). However, Judge David Ezra recently considered this
exact issue and claim and after an extensive discussion concluded: [I]t is clear that Plaintiffs' unconstitutional conditions argument, relying as it does on Nollan/Dolan, can only be classified as a takings challenge. Kamaole Pointe Development LP v. County of Maui, 573 F.Supp.2d 1354, 1366 (D.Haw. 2008). Each of these (effectively) two claims is brought against 1) individual Commissioners in their individual capacity; 2) the Commission, i.e., the State; and 3) individual Commissioners in their official capacity. Each claim requests both 1) money Under federal This
damages and 2) prospective injunctive relief.
law, each of these permutations has significance.
memorandum will therefore address 12 different combinations of claims, defendants, and relief claimed, grouped and summarized in the following table:
15
PageID
Group1 CLAIM 1. Deprivation of constitutional rights Taking
DEFENDANT Commissioners in their individual capacity Commissioners in their individual capacity Commissioners in their individual capacity Commissioners in their individual capacity Commissioners in their official capacity The Commission (i.e. the State) The Commission (i.e. the State)
RELIEF CLAIMED Damages
Damages
2.
Deprivation of constitutional rights Taking
Prospective injunctive relief Prospective injunctive relief
3.
Deprivation of constitutional rights Deprivation of constitutional rights Deprivation of constitutional rights
Damages
Damages
Prospective injunctive relief
4.
Deprivation of constitutional rights Taking
Commissioners in their official capacity Commissioners in their official capacity The Commission (i.e., the State)
Prospective injunctive relief
5.
Prospective injunctive relief Prospective injunctive relief
Taking
We group the federal claims into six categories. Arguments specific to each group are summarized in section IV.A. - Summary of Argument Federal Law Claims. The arguments are then fully stated in sections V.B. 1 through 6. The arguments correspond to the groups in this table. 16
PageID
6.
Taking
Commissioners in their official capacity The Commission (i.e., the State)
Damages (just compensation)
Taking
Damages (just compensation)
As to plaintiffs requests for declaratory relief (all counts and specifically Count IX), those requests overlap with its other federal law claims. Cannon v. US Bank, NA, 2011 WL
1637415, 3-4 (D.Haw. 2011) (Gilmor, J.) (The Declaratory Relief Act, however, is not an appropriate remedy here since any declaration of the rights of the parties would essentially duplicate Plaintiffs' other causes of action); Mier v.
Lordsman Inc., 2011 WL 285862, 3 (D.Haw. 2011) (Seabright, J.) (holding that declaratory relief is a remedy, not an independent cause of action.). C. ANALYSIS OF STATE LAW CLAIMS IN THE COMPLAINT
First, plaintiff claims that defendants deprived it of State constitutional rights, specifically its right to equal protection, procedural due process, and substantive due process. Counts I, III, and VI. Second, plaintiff claims that defendants should be equitably estopped from taking the actions they took. Count V.
Third, plaintiff claims that defendants actions constitute a regulatory taking. Counts I, II, IV, and VIII. For the
17
PageID
reasons stated above, this taking claim includes plaintiffs Nollan/Dolan claim as allegedly applicable under Hawaii law. The taking claim also includes plaintiffs claim of vested rights, because vested rights are just a form of property. Maunalua Bay Beach Ohana 28 v. State, 122 Haw. 34, 52, 222 P.3d 441, 459 (Haw.App. 2009). See Allen v. City and County of
Honolulu, 58 Haw. 432, 435, 571 P.2d 328, 329 (1977) (vested rights [focuses] upon whether the owner acquired real property rights which cannot be taken away by governmental regulation). IV. SUMMARY OF ARGUMENT A. FEDERAL LAW CLAIMS
First, the Commissioners in their individual capacity are entitled to absolute quasi judicial immunity and qualified immunity as to all claims against them for damages, including just compensation. Second, claims for prospective injunctive relief cannot be brought against the Commissioners in their individual capacity. Third, claims for damages for deprivation of constitutional rights against the Commission itself and against Commissioners in their official capacity must be dismissed because these defendants are not persons within the meaning of section 1983. Fourth, plaintiff has failed adequately to describe and state a claim for prospective injunctive relief against the
18
PageID
Commissioners in their official capacity or, in the alternative, this court should abstain from entering such relief. Fifth, in no event are plaintiffs entitled to injunctive relief as to their taking claim. Sixth, this court should abstain from and stay the taking claim for just compensation pending resolution of the state court administrative appeal(s). B. STATE LAW CLAIMS
First, the Commissioners in their individual capacity are entitled to absolute judicial immunity and statutory immunity/qualified privilege as to all claims against them for damages, including just compensation. Second, Hawaii law does not afford a claim for damages based on deprivation of constitutional rights. Third, plaintiff has not stated a claim based on zoning estoppel. Fourth, plaintiff has no direct claim for relief under Haw. Rev. Stat. chapters 91, 92, or 205 or HAR chapter 15-15. Fifth, the court should abstain from considering the state law taking claim or any state law claims not otherwise dismissed. V. ARGUMENT A. FEDERAL LAW CLAIMS
19
PageID
1.
The individual capacity defendants are entitled to absolute judicial immunity and qualified immunity as to all claims The individual capacity defendants are entitled to absolute judicial immunity as to all claims
a.
The State of Hawaii Land Use Commission is an agency of the State, created by state statute. (Cum. Supp. 2010). Haw. Rev. Stat. 205-1
Commissioners are nominated and, by and
with the advice and consent of the senate, appointed by the governor for a term of four years. (2009). Haw. Rev. Stat. 26-34(a)
The governor has no power to remove commissioners or
shorten their term of office except for cause . . . after due notice and public hearing. Haw. Rev. Stat. 26-34(d) (2009). It was
The Commission was originally created in 1963.
tasked with setting the boundaries of the four major land use districts in which all lands in the State [are] placed: urban, rural, agricultural, and conservation. 2(a) (2009). Haw. Rev. Stat. 205See e.g. Haw.
That task was completed long ago.
Rev. Stat. 205-3 (2009).
Since then the Commissions most
important job is to decide petitions for a change in the boundary of a district. Haw. Rev. Stat. 205-4 (2009).
In considering petitions for a boundary change, the Commission is authorized to: approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of this chapter or the policies
20
PageID
and criteria established pursuant to section 205-17 or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. Haw. Rev. Stat. 205-4(g) (1993). Section 205-4(g) also provides: . . . absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. Such conditions, if any, shall run with the land and be recorded in the bureau of conveyances. Cf. Lanai Co., Inc. v. Land Use Com'n, 105 Haw. 296, 318, 97 P.3d 372, 394 (2004): But the legislature granted the LUC the authority to impose conditions and to downzone land for the violation of such conditions for the purpose of uphold[ing] the intent and spirit of HRS chapter 205, and for assur[ing] substantial compliance with representations made by petitioners. HRS 205-4(g) . . . Consequently, the LUC must necessarily be able to order that a condition it imposed be complied with, and that violation of a condition cease. The Commission instituted and decided the proceedings described in the complaint and subject of this suit pursuant to this statute and case. The Commissioners are entitled to quasi
judicial immunity for their role in doing so.2
Judicial immunity applies no matter how erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. Ashelman v. Pope, 793 F.2d 1072, 1075 21
PageID
The leading Ninth Circuit case discussing judicial immunity for agency officials when they perform functions analogous to those performed by judges is Buckles v. King County, 191 F.3d 1127 (9th Cir. 1999). Buckles owned a 10 acre property in King County, Washington. A 1990 state law required each county to adopt a In 1994, Buckles received notice
comprehensive land use plan.
that King County was adopting a comprehensive plan of new zoning in compliance with the 1990 law. Buckles property would be
zoned residential, specifically rural area with a 5-acres (9th Cir. 1986) (en banc) (citing Cleavinger v. Saxner, 474 U.S. 193, 199200 (1985) (quotations omitted)). Judicial immunity is not affected by the motives with which their judicial acts are performed. Id. at 107778. Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11 (1991), Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Id. Judicial immunity is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief. Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996), superseded by statute on other grounds. The public policy that underlies judicial immunity is the furtherance of independent and disinterested judicial decision making. Ashelman, 793 F.2d at 1078. To effectuate this policy, the Ninth Circuit broadly construes the scope of judicial immunity, which applies even if there are allegations that a judicial decision resulted from a bribe or a conspiracy. Id.
22
PageID
minimum lot size.
Buckles petitioned the King County Council Ultimately the comprehensive plan
(Council) for a change.
designated the Buckles property as rural neighborhood which allowed for limited retail and commercial use. 1131. Various groups appealed the comprehensive plan to the Washington Growth Management Hearings Board (the Board). Without giving notice to the Buckles, the Board determined that the comprehensive plan was procedurally defective and remanded to the Council. The Council adopted a new comprehensive plan 191 F.3d at
under which the Buckles property was designated the less desirable rural residential. The Buckles appealed to the
Board, which rejected the appeal. Instead of appealing the Boards decision to state court, the Buckles sued the Council and members of the Board, alleging that they were victims of a zoning change, and stating substantive and procedural due process claims under 42 U.S.C. 1983. 191 F.3d at 1132. Defendants removed the case to
federal court, where the Buckles amended their complaint to add a takings claim under the federal and state constitutions. The
district court dismissed the claims against the Board members under the doctrine of quasi-judicial immunity. 1132. 191 F.3d at
23
PageID
On appeal, the Ninth Circuit first address[ed] whether members of the Washington Growth Management Hearings Board are entitled to absolute immunity from damages, calling that the threshold matter. The court discussed the leading Supreme
Court case on the issue, Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) and noted: Acknowledging that some officials perform special functions [requiring] a full exemption from liability, the Supreme Court has long recognized the need for absolute immunity to protect judges from lawsuits claiming that their decisions had been tainted by improper motives. This same absolute immunity, often dubbed quasijudicial immunity, has been extended to agency officials when they perform functions analogous to those performed by judges. 191 F.3d 1133-1134 (citation omitted). Quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993) (internal citations omitted), Buckles discussed the policy bases for the doctrine and why it applies to officials other than judges: [t]he doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability. Accordingly, the touchstone for the doctrine's applicability has been performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights. When judicial immunity is extended to officials other than judges, it is because their judgments are functional[ly]
24
PageID
comparab[le] to those of judges-that is, because they, too, exercise a discretionary judgment as part of their function. Id. The court continued: The principle underlying immunity for government officials performing judicial functions is the same as that for judges: adjudications invariably produce [ ] at least one losing party, Butz, 438 U.S. at 509, 98 S.Ct. 2894, and if the losing party in one forum were allowed to maintain a civil action against the decision-maker in another forum, it would threaten the decision-maker's independence. In evaluating the defense of absolute immunity, the court considers whether the adjudication within a[n] ... administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suit for damages. Id. at 513, 98 S.Ct. 2894. Id. (emphasis added). Buckles then identified factors to be considered in determining whether particular officials are entitled to judicial immunity: In Butz, the Supreme Court identified the following characteristics of the judicial process as sufficient to render the role of the administrative law judge functionally comparable to that of a judge: an adversarial proceeding, a decision-maker insulated from political influence, a decision based on evidence submitted by the parties, and a decision provided to the parties on all of the issues of fact and law. Id. The Court noted other safeguards built into the judicial process, such as the importance of precedent and the right to
25
PageID
appeal, but did not identify these safeguards as dispositive. What mattered was that federal administrative law requires that agency adjudications contain many of the same safeguards as are available in the judicial process. Id. at 513, 98 S.Ct. 2894 (emphasis added). 191 F.3d 1133-1134. 1003 (9th Cir. 1999): Butz articulated several nonexclusive factors as being characteristic of the judicial process and helpful in determining whether absolute immunity should be granted. These factors -relating to the purpose of 1983 immunity - include: (a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. The Buckles court analyzed these factors and concluded that the Board members were entitled to absolute immunity. The same result is appropriate in our case. The Hawaii Cf. Mishler v. Clift, 191 F.3d 998,
supreme court has ruled that in considering an order to show cause to revert property for failure to comply with conditions the Commission must necessarily conduct a contested case and that in doing so the LUC was performing an adjudicatory function which is inherent in a contested case hearing.
26
PageID
Kaniakapupu v. Land Use Com'n, 111 Haw. 124, 140, 139 P.3d 712, 728 (2006). 40. And see Compl. 40: Also, the Order to Show Cause specifically stated that the Commission will conduct a hearing on this matter in accordance with the requirements of Chapter 91, Hawaii Revised Statutes, and Subchapters 7 and 9 of Chapter 15-15-, Hawaii Administrative Rules.
Cf. Haw. Rev. Stat. 205-4(b) (2009) and Haw. Rev. Stat. 92-6 (1993 and Cum. Supp. 2010). A contested case is designed to be and is an adversarial, quasi judicial proceeding. The procedural requirements and
safeguards of a contested case include (but are not limited to) those identified in Butz and discussed in Buckles and Mishler: All parties shall be afforded an opportunity for hearing after reasonable notice. (Cum. Supp. 2010). Oral and documentary evidence may be received and Every party shall have the right to conduct such crossexamination as may be required for a full and true disclosure of the facts, and shall have the right to submit rebuttal evidence. Supp. 2010). Witnesses testify under oath. HAR 15-15-58. Haw. Rev. Stat. 91-10 (Cum. Haw. Rev. Stat. 91-9(a)
27
PageID
Subpoenas may be used to compel testimony. 15-58 and 69.
HAR 15-
Certain protections and procedures are afforded if the Commission members have not personally heard and examined all the evidence. Haw. Rev. Stat. 91-11 (1993).
The Commissions decision and order must be in writing or stated in the record and shall be accompanied by separate findings of fact and conclusions of law. The
Commission is required to address findings submitted by the parties and notify all parties of its decision. Rev. Stat. 91-12 (1993). No official of an agency who renders a decision in a contested case shall consult any person on any issue of fact except upon notice and opportunity for all parties to participate, save to the extent required for the disposition of ex parte matters authorized by law. Rev. Stat. 91-13 (1993). Any decision is subject to judicial review. Stat. 91-14 (1993 and Cum. Supp. 2010). Haw. Rev. Haw. Haw.
The reviewing
court is charged to ensure that the agency's findings are not clearly erroneous and [are] supported by reliable, probative and substantial evidence in the
28
PageID
record.
Poe v. Hawaii Labor Relations Bd., 105 Haw. 97,
100, 94 P.3d 652, 655 (2004). See also various provisions in HAR chapter 15-15: 15-15-3 (definition of contested case) 15-15-10 (meetings) 15-15-34 (quasi-judicial procedures) 15-15-36 (decisions signed by those who have heard the evidence) 15-15-59 (conduct of hearing) 15-15-60 (administering oaths to witnesses, receiving evidence etc.) 15-15-63 (evidence; judicial notice allowed) 15-15-68 (cross examination) 15-15-75 (appeals) 15-15-77 (clear preponderance of the evidence standard) 15-15-81 (oral argument) 15-15-82 (findings of fact, decision and order)
The Commission held numerous hearings and considered multiple filings on this contested case. Compl. 44-46, 48-
50, 52, 53-55, 56, 60, 70-73, 81, 83, 84, 85-89, 90-93, 100, 104, 108-110, 111-119, and 130-133.3
Unlike all other boards conducting adjudicatory functions pursuant to section 91-9, the Commission is required to conduct 29
PageID
As to insulation from political influence, commissioners are protected in numerous ways. Members of the Commission are
nominated and, by and with the advice and consent of the senate, appointed by the governor for a term of four years. Haw. Rev. Stat. 26-34(a) (2009). Id. Their terms are staggered.
The governor has no power to remove commissioners or
shorten their term of office except for cause . . . after due notice and public hearing. Haw. Rev. Stat. 26-34(d) (2009).
Cf. In re Water Use Permit Applications, 94 Haw. 97, 124, 9 P.3d 409, 436 (2000) (rejecting claim of political influence as to Water Commission, all members of which are appointed by the Governor including two cabinet members). Commissioners are barred from holding any other public office. One member is appointed from each of the counties and Commissioners elect their own
the rest are appointed at large.
chairperson and select and hire their own employees, including administrative personnel and an executive director. Stat. 205-1 (Cum. Supp. 2010). Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056 (D.Haw. 2002), is another instructive case. In Hale, the Haw. Rev.
Maui Planning Commission denied a special use permit to a church. The church chose not to file an administrative appeal
its decision making on a contested case in open meetings. Haw. Rev. Stat. 92-6(b) (1993). This allowed plaintiff and its supporters to testify at the open meetings. 30
PageID
in state court under Haw. Rev. Stat. 205-6(e) and Haw. Admin. R. 15-15-96(c). Instead, they filed the present federal action. Id. at 1063. Defendants included the members of the
commission.
The court (the late Judge King presiding) ruled
that the individual commissioners had judicial immunity, because: The proceedings were certainly adversarial The proceedings were considered a contested case A whole host of quasi-judicial procedures applied or are illustrative of the procedures involved. See Haw. Admin. R. 15-15-34 to 45 and 15-15-53 to 75; and Maui County Code 12-201-53 to 70 (setting forth applicable prehearing and hearing procedures regarding notice, testimony, cross-examination of witnesses, subpoenas, motions, discovery, mediation, evidence, etc.) The hearing officer issued detailed written recommendations for findings and conclusions. Process was allowed for written and oral objections to such findings and conclusions. There was a right of judicial review to a state circuit court and beyond that to Hawaii's appellate court system. See Haw. Rev. Stat. 205-6(e). Id. at 1066.
31
PageID
The court noted: Granting quasi-judicial immunity to the individual Defendants here also serves the primary goal as stated in Buckles-prevention of impairing an independent and impartial exercise of judgment. Indeed, the church had
apparently attempted to influence members with threats of personal liability. The commissions counsel urged them not to Id. Similarly, plaintiffs in
be swayed by such considerations.
our case unabashedly describe their attempts to intimidate the Commissioners with implied threats of personal lawsuits. 106-107. See also Mishler v. Clift, 191 F.3d 998, 1004 (9th Cir. 1999) (holding that members of a state medical board are entitled to absolute judicial immunity); Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 918 -919 (9th Cir. 2004) (members of the Idaho State Board of Medicine and the Idaho State Board of Professional Discipline entitled to absolute judicial immunity); Romano v. Bible, 169 F.3d 1182 (9th Cir. 1999) (former members of Nevada Gaming Commission and Nevada Gaming Control Board entitled to absolute judicial immunity). Our case perfectly illustrates the problem motivating judicial immunity and predicted in Buckles: If Board members were not protected by absolute immunity, we predict that many losing parties would turn around and sue the Board members in a damages action instead of appealing the Board's substantive decision Compl.
32
PageID
to Superior Court. The decision maker rather than the decision would become the target. Land use decisions are often contentious and involve conflicting interests and policies. Permitting suits against the quasi-judicial decision makers would discourage knowledgeable individuals from serving as Board members and thwart the orderly process of judicial review. Absolute immunity for the Board members serves the broader public interest in having people perform these functions without fear of having to personally defend their actions in civil damages lawsuits. Romano, 169 F.3d at 1188. 191 F.3d at 1136. Plaintiff here seeks to make the decision It may not do so;
makers the target rather than the decision.
the Commissioners are entitled to absolute immunity. b. The individual capacity defendants are entitled to qualified immunity as to all claims
The rule of qualified immunity is a familiar one: public officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
Supreme Court has made clear that qualified immunity provides a quite far-reaching protection to government officers. Indeed,
qualified immunity safeguards all but the plainly incompetent or those who knowingly violate the law.... [I]f officers of reasonable competence could disagree on th[e] issue [whether a chosen course of action is constitutional], immunity should be
33
PageID
recognized.
Malley v. Briggs, 475 U.S. 335, 341 (1986); see
also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997) (Th[e] test allows ample room for reasonable error on the part of the [government official].). Even if a right is clearly established, a state official is nevertheless entitled to qualified immunity if he or she made a reasonable mistake about the laws requirements. Center for
BioEthical Reform, Inc. v. Los Angeles County Sheriff Dept, 533 F.3d 780, 793 (9th Cir. 2008) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). The Commissioners here had ample bases to take the action they took. Without repeating everything stated above,
plaintiffs complaint clearly establishes that the Property was subject to conditions for decades and that despite modifications by prior Commissions plaintiff had no definite prospect of meeting the conditions. Commissioners action. The point is that reasonable persons in the Commissioners position would have believed that he or she could have decided as the Commissioners did. Officers of reasonable The Commissioners State statute and case law support the
competence could disagree on th[e] issue.
were not plainly incompetent and did not knowingly violate the law.
34
PageID
The purpose of qualified immunity is to protect officials from undue interference with their duties and from potentially disabling threats of liability. Sinaloa Lake Owners Assn v. The
City of Simi Valley, 70 F.3d 1095, 1098 (9th Cir. 1994).
Supreme Court has therefore stated that qualified immunity is an entitlement not to stand trial or face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 200 (2001). The
Supreme Court has cautioned that a ruling on a qualified immunity defense should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Id. In this case, the Commissioners are entitled to qualified immunity. Any other ruling would mean that anytime someone objects to a Commission action, the Commissioners cannot act without incurring the risk of trial. Any other ruling denies Any
the Commissioners the privilege of not proceeding to trial. other ruling must inevitably chill the robust exercise of discretion by future officials. U.S. 800, 814 (1982): Claims against public officials impose a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of
See Harlow v. Fitzgerald, 457
35
PageID
all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties. 2. Claims for prospective injunctive relief cannot be brought against the Commissioners in their individual capacity
Plaintiff is not entitled to injunctive relief against Commissioners in their individual capacity, because the relief it requests could only be obtained against Commissioners in their official capacity. Hill v. Shelander, 924 F.2d 1370, 1374
(7th Cir.1991) ([I]njunctive relief against a state official may be recovered only in an official capacity suit.); Smith v. Plati, 56 F.Supp.2d 1195, 1203 (D.Colo. 1999) (dismissing claims against state official in his individual capacity because the relief plaintiff requested could only be obtained against the defendant in his official capacity). In other words, the individual defendants as individuals - cannot change the Commissions action, cannot cause the Commission to stop violating plaintiffs constitutional rights, and cannot change the Propertys classification to urban. Indeed one of the individuals, Vladimir Devens, is no longer a Commissioner.4 His term of office expired on June 30,
Mr. Devens, Mr. Jencks, and Mr. Kanuha are no longer Commissioners. Their successors are appointed and in place. These successors are automatically substituted as official capacity defendants. FRCP 25(d). 36
PageID
2011.
No order even one backed by the full power and
authority of this court - can force him or empower him to do anything in regard to the Property. 1153, 1153-1154 (7th Cir. 1987): As a practical matter, a public official who is a defendant in a suit seeking an injunction is not on trial at all. The suit seeks relief against him in his official capacity; he need not attend the trial, which will be conducted by attorneys representing the governmental body. If he leaves office during the interim, he leaves the case behind and his successor becomes the party. 3. Plaintiffs constitutional claims cannot be maintained against the Commission or the Commissioners in their official capacity for damages because these defendants are not persons within the meaning of section 1983 See Scott v. Lacy, 811 F.2d
42 U.S.C. 1983 provides a federal cause of action against a person who under color of state law causes a citizen of the United States or other person to be deprived of rights, privileges, or immunities secured by the United States Constitution and federal laws. The ability to bring an action against a state is governed, of course, not only by sovereign immunity, but also by whether the statute itself creates a cause of action against a state. Pittman v. Oregon, Employment Dept., 509 F.3d 1065, The Supreme Court has held that
1071-1072 (9th Cir. 2007).
states and their agencies are not persons as that term is used in section 1983. Will v. Michigan Dept. of State Police, 491
37
PageID
U.S. 58, 71 (1989) (We hold that neither a State nor its officials acting in their official capacities are persons under 1983.). Therefore plaintiff cannot bring its constitutional claims against the Commission through section 1983. And, as noted
above, plaintiff cannot bring those claims except through section 1983. Therefore plaintiffs constitutional claims must
be dismissed as to the Commission. Similarly to the extent the suit seeks damages against Commissioners in their official capacity, they are not persons under 1983. Will, 491 U.S. at 71 ([A] suit against a state
official in his or her official capacity is not a suit against the official but rather is a suit against the officials office. As such, it is no different from a suit against the State itself.). Plaintiffs constitutional claims must therefore be
dismissed as to the Commissioners in their official capacity insofar as plaintiff seeks damages. 4. Plaintiff has failed adequately to describe and state a claim for prospective injunctive relief against the Commissioners in their official capacity or, in the alternative, this court should abstain from entering such relief.
Even though state officials acting in their official capacities are not persons subject to suit under section 1983, courts can enjoin state officials in their official capacity from continuing to violate federal constitutional or statutory
38
PageID
law.
Ex parte Young, 209 U.S. 123 (1908).
Only prospective
injunctive relief is allowed.
Green v. Mansour, 474 U.S. 64, 68 The seeming
(1985); Edelman v. Jordan, 415 U.S. 651 (1974).
conflict between Will (official capacity state officials are not persons under section 1983) and Ex parte Young (allowing prospective injunctive relief) is reconciled by the familiar legal fiction described in Cardenas v. Anzai, 311 F.3d 929, 935 (9th Cir. Cir. 2002). In apparent recognition of this distinction, plaintiff repeatedly asks for what it styles prospective injunctive relief to end continuing violations of federal and state law. Compl. 145, 158, 168, 176 and 193. That vaguely worded Plaintiff
request is fleshed out a little in Count IX ( 216).
explains that it seeks an order prohibiting defendants from taking further action to reclassify the Property, amend the district boundaries to agricultural, or enforce the boundary amendment order, and further interfering with or denying plaintiffs rights to develop the property. Plaintiff fails to identify any further action that the Commission or Commissioners may be taking with respect to this property. The status quo is that the Property has been reverted There is nothing to enjoin.
to agricultural classification.
In other words, plaintiff has not alleged an actual case or controversy as to prospective injunctive relief, because it has
39
PageID
done nothing to establish a real and immediate threat that the Commission is going to take any additional or future action as to plaintiff or the Property. U.S. 95, 101-102 (1983) In the alternative, plaintiff has filed as it is entitled to do an administrative appeal of the Commissions decision pursuant to Haw. Rev. Stat. 91-14 (1993 and Cum. Supp. 2010). See ECF No. 10 (statement of related cases).5 Based on the City of Los Angeles v. Lyons, 461
pendency of this state court administrative appeal, this court should abstain from entering any injunctive relief pursuant to Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941); Younger v. Harris, 401 U.S. 37 (1971). These abstention doctrines are That discussion is
fully discussed below at pages 35-36. incorporated here by this reference. 5.
Plaintiff is not entitled to injunctive relief as to the taking claim
Defendants do not agree there has been a taking in this matter. But in any event, the only possible remedy for a taking Plaintiffs claim for injunctive relief Lingle v. Chevron U.S.A. Inc., 544 U.S.
is just compensation.
does not state a claim. 528, 536-537 (2005).
Plaintiffs co-developer also filed an administrative appeal of the same decision. That appeal is pending in a different state court. ECF No. 10.
40
PageID
6.
This court should abstain from and stay the claim for just compensation6
The court should decline or abstain from considering any of plaintiffs takings claims on the basis of Pullman Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) or Younger v. Harris, 401 U.S. 37 (1971) abstention. Pullman abstention is an equitable doctrine that allows federal courts to refrain from deciding sensitive federal constitutional questions when state law issues may moot or narrow the constitutional questions. [T]he purpose of Pullman
abstention . . . is to avoid resolving the federal question by encouraging a state-law determination that may moot the federal controversy. San Remo Hotel, L.P. v. City and County of San
Francisco, Cal., 545 U.S. 323, 339-340 (2005) Abstention is appropriate where: (1) there are sensitive issues of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open, (2) constitutional adjudication could be avoided by a state ruling,
Williamson County ripeness requirements do[] not preclude state courts from hearing simultaneously a plaintiff's request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the Fifth Amendment of the Federal Constitution. San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 346 (2005). Similarly in this removed case, plaintiffs federal law claim for compensation is an alternative to the state court claim.
41
PageID
and (3) resolution of the state law issue is uncertain. v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010). This is a compelling, indeed paradigmatic, case for Pullman abstention.
Wolfson
How could a court or jury possibly decide
if plaintiffs property is taken or determine just compensation for the taking until that administrative appeal is resolved? Until this challenge is resolved, there is no way to know whether plaintiffs property is taken at all. It may be that
the state court will reverse the Commissions decision. As to the three factor test in Pullman, the Ninth Circuit has consistently held that land use planning is a sensitive area of social policy that meets the first requirement for Pullman abstention. Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 409 (9th Cir. 1996) (quoting Kollsman v. City of Los Angeles, 737 F.2d 830, 833 (9th Cir.1984)). The second and third requirements for Pullman abstention are also met. Plaintiffs entire taking claim hinges on whether
the Property is to be reverted to agricultural classification or not. If the state court reverses the Commissions action, then It
no adjudication of the taking claim will be required at all. is undisputed that resolution of the state law issue is uncertain.7
The State expects to win, but does not claim the issue is free from doubt. Presumably plaintiff feels the same. 42
PageID
The question of Younger abstention arises when disposition of a federal case would have the same practical effect on [a] state proceeding as a formal injunction. Gilbertson v. Albright, 381 F.3d 965, 97778 (9th Cir. 2004) (en banc). court must abstain under Younger if four requirements are met: (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves. San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). An exception to that general rule exists if there is a showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate. Id. Here, the state court appeals are ongoing. Important state A
interests are implicated for the reasons discussed in connection with Pullman abstention. Plaintiff has made all of its And, a decision on
constitutional arguments in the state case.
the merits by this court would have the same practical effect on the state proceeding as a formal injunction because it would prevent the state court from reaching different legal conclusions. Gilbertson, 381 F.3d at 97778.
43
PageID
No allegation in the complaint legitimately supports an exception to abstention. If, therefore, this court is not otherwise inclined to enter judgment in favor of the State, it should enter a stay pursuant to Pullman or Younger pending resolution of the state court appeal of the challenged decision.8 See N Group LLC v.
Hawai'i County Liquor Com'n, 681 F.Supp.2d 1209, 1240 (D.Haw. 2009). Finally, plaintiffs Nollan/Dolan claim (Count VIII) is a taking claim, fully subject to the above analysis. [I]t is clear that Plaintiffs' unconstitutional conditions argument, relying as it does on Nollan/Dolan, can only be classified as a takings challenge. Kamaole Pointe Development LP v. County of Maui, 573 F.Supp.2d 1354, 1366 (D.Haw. 2008). Accord Alto Eldorado Partnership v.
County of Santa Fe, 634 F.3d 1170, 1177-1179 (10th Cir. 2011). Importantly, if the Nollan/Dolan claim were to be considered separately, it would be time barred. The
unconstitutional conditions, if any, were imposed years or even decades ago by different Commissioners and not challenged at the time. Any claim based on these conditions would have to
be brought against different defendants and is long since barred
Plaintiffs reference to a substantially advances claim, Compl. 152, can be ignored because that theory is now defunct. Lingle, supra. 44
PageID
by the statute of limitations.
See Allen v. Iranon, 99 F. Supp.
2d 1216, 1238 (D.Haw. 1999) (In Hawaii, the statute of limitations for actions under Section 1983 is two years from the date of the violation.). B. STATE LAW CLAIMS 1. The Commissioners in their individual capacity are entitled to absolute judicial immunity and statutory immunity/qualified privilege as to all claims against them for damages, including just compensation
The Commissioners in their individual capacity are entitled to absolute quasi judicial immunity as to state law claims for the same reasons discussed above as to federal law claims. Hawaii law has recognized judicial immunity since at least 1887. See State v. Taylor, 49 Haw. 624, 631-632, 425 P.2d 1014, The Hawaii supreme court relied largely on
1019 (1967).
federal law when discussing absolute immunity for courtappointed psychiatrists, Seibel v. Kemble, 63 Haw. 516, 631 P.2d 173 (1981), probation officers, Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 65, 647 P.2d 713, 719 (1982), prosecutors, Bullen v. Derego, 68 Haw. 587, 592, 724 P.2d 106, 109 (1986), and court appointed receivers, Hawaii Ventures, LLC v. Otaka, Inc., 114 Haw. 438, 486, 164 P.3d 696, 744 (2007) The Hawaii supreme court has not yet discussed absolute quasi judicial immunity for boards. There is, however, no
45
PageID
reason that that such immunity would not be afforded for the same reasons as prevail in federal law. As to statutory immunity, Haw. Rev. Stat. 26-35.5(b) (2009) provides: Notwithstanding any law to the contrary, no member shall be liable in any civil action founded upon a statute or the case law of this State, for damage, injury, or loss caused by or resulting from the member's performing or failing to perform any duty which is required or authorized to be performed by a person holding the position to which the member was appointed, unless the member acted with a malicious or improper purpose, except when the plaintiff in a civil action is the State. Plaintiff fails even to allege any malicious or improper purpose much less support any such allegation by plausible, non conclusory facts. (2009). The Commissioners are entitled to basically the same qualified privilege under Hawaii case law. See Towse v. State, Ashcroft v. Iqbal, 129 S.Ct. 1937, 194950
64 Haw. 624, 631, 647 P.2d 696, 702 (1982); Medeiros v. Kondo, 55 Haw. 499, 503, 522 P.2d 1269, 1271 (1974). Finally, because the Commissioners are entitled to immunity so is the State to the extent the claims are based on respondeat superior. Hulsman v. Hemmeter Development Corp., 65 Haw. 58,
65, 647 P.2d 713, 719 (1982)
46
PageID
2.
Hawaii law does not afford a claim for damages based on deprivation of constitutional rights
No Hawaii statute comparable to 42 U.S.C. 1983 affords a claim to enforce State constitutional claims. such a right. No case provides
See Figueroa v. State, 61 Haw. 369, 381-382, 604 In the absence of a statute or case,
P.2d 1198, 1205 (1979).
plaintiffs direct claim for damages fails to state a claim. In addition, the LUC, as an agency of the State, has sovereign immunity from any such claim. 3. Figueroa, supra.
Plaintiffs have not stated a claim based on zoning estoppel
The doctrine of equitable estoppel, as it applied to land development: is based on a change of position on the part of a land developer by substantial expenditure of money in connection with his project in reliance, not solely on existing zoning laws or on good faith expectancy that his development will be permitted, but on official assurance on which he has a right to rely that his project has met zoning requirements, that necessary approvals will be forthcoming in due course, and he may safely proceed with the project. Life of the Land, Inc. v. City Council of City and County of Honolulu, 61 Haw. 390, 453, 606 P.2d 866, 902 (1980). Plaintiffs complaint does not allege that any such assurances were ever made. On the contrary, the project and
classification were always subject to conditions, conditions
47
PageID
that plaintiff did not meet. 29. 4.
See e.g. Compl. 11, 15, and
Plaintiff has no direct claim for relief under Haw. Rev. Stat. chapters 91, 92, or 205 or HAR chapter 15-15
Plaintiff claims that defendants did not follow procedures and rules required by these statutes. But the proper remedy for
such an alleged failure is a section 91-14 administrative appeal. Plaintiff has filed such an appeal and cannot
substitute a claim for declaratory or injunctive relief for its statutory remedy. Punohu v. Sunn, 66 Haw. 485, 487, 666 P.2d
1133, 1135 (1983) (we hold that the remedy of appeal provided by 9114, HRS, is a statutorily provided special form of remedy for the specific type of case involved here and that a declaratory judgment action, pursuant to 6321, HRS, did not lie and the fair hearing was a contested case under the provisions of 911(5), HRS, and as such, was reviewable only in accordance with the provisions of 9114, HRS). As to Haw. Rev. Stat. chapter 92, plaintiff offers no plausible, non conclusory facts to support their raw speculation that the Commissioners engaged in any improper communication. In any event, the only remedy available to plaintiff would have been a suit to void any final action taken in violation of the chapter. Plaintiff was required to - but did not - file such a
48
PageID
suit within 90 days of the final action. 11 (Cum. Supp. 2010). 5.
Haw. Rev. Stat. 92-
The court should abstain from considering the state law taking claim or any state law claims not otherwise dismissed
Plaintiffs state court taking claim (which includes the Nollan/Dolan claim and the vested rights claim) is not barred by Williamson County ripeness considerations. However, this court
should abstain from proceeding on the taking claim and any state law claim not otherwise dismissed pending the outcome of the state court administrative appeals for the same reasons mentioned above. VI. CONCLUSION This court should dismiss all claims for the reasons stated. DATED: Honolulu, Hawaii, July 27, 2011.
49
Case 1:11-cv-00414-ACK -BMK Document 14-2 197
PageID #:
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII BRIDGE AINA LE'A, LLC, Plaintiff, vs. STATE OF HAWAII LAND USE COMMISSION, VLADIMIR P. DEVENS, in his individual and official capacity, KYLE CHOCK, in his individual and official capacity, THOMAS CONTRADES, in his individual and official capacity, LISA M. JUDGE, in her individual and official capacity, NORMAND R. LEZY, in his individual and official capacity, NICHOLAS W. TEVES, JR., in his individual and official capacity, RONALD I. HELLER, in his individual and official capacity, DUANE KANUHA, in his official capacity, and CHARLES JENCKS, in his official capacity, JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 110, DOE CORPORATIONS 1-10, DOE ENTITIES 2-10 and DOE GOVERNMENTAL UNITS 1-10, Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11-00414 ACK BMK CERTIFICATE OF COMPLIANCE
CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.5(e), I certify this memorandum complies with the applicable word limitation. This memorandum According to
uses a monospaced typeface (Courier New 12 point).
PageID #:
the word processing system used to produce this memorandum, the portion of the memorandum to be counted contains 8596 words. DATED: Honolulu, Hawaii, July 27, 2011. /s/ William J. Wynhoff Deputy Attorney General Attorney for Defendants
PageID #:
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII BRIDGE AINA LE'A, LLC, Plaintiff, vs. STATE OF HAWAII LAND USE COMMISSION, VLADIMIR P. DEVENS, in his individual and official capacity, KYLE CHOCK, in his individual and official capacity, THOMAS CONTRADES, in his individual and official capacity, LISA M. JUDGE, in her individual and official capacity, NORMAND R. LEZY, in his individual and official capacity, NICHOLAS W. TEVES, JR., in his individual and official capacity, RONALD I. HELLER, in his individual and official capacity, DUANE KANUHA, in his official capacity, and CHARLES JENCKS, in his official capacity, JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 110, DOE CORPORATIONS 1-10, DOE ENTITIES 2-10 and DOE GOVERNMENTAL UNITS 1-10, Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11-00414 ACK BMK CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE I hereby certify that on the date the foregoing document is filed it will be served on the following persons electronically through CM/ECF: Bruce D. Voss, Esq.
PageID #:
Michael C. Carroll, Esq. Matthew C. Shannon, Esq. E. Diane Erickson, Esq. DATED: Honolulu, Hawaii, July 27, 2011.

Motion To Dismiss, Bridge at Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 11-00414 ACK (July 27, 2011)

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Motion To Dismiss, Bridge at Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 11-00414 ACK (July 27, 2011)

Transféré par

Droits d'auteur :

Formats disponibles

Case 1:11-cv-00414-ACK -BMK Document 14 Filed 07/27/11 Page 1 of 2 146

Case 1:11-cv-00414-ACK -BMK Document 14 Filed 07/27/11 Page 2 of 2 147

GOVERNMENTAL UNITS 1-10,

/s/ William J. Wynhoff Deputy Attorney General Attorney for Defendants

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 148

Filed 07/27/11 Page 1 of 49

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 149

Filed 07/27/11 Page 2 of 49

ARGUMENT A. 1. FEDERAL LAW CLAIMS

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 150

Filed 07/27/11 Page 3 of 49

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 151

Filed 07/27/11 Page 4 of 49

14, 15, 16, 18, 25 16, 17, 18 9 31

Cardenas v. Anzai, 311 F.3d 929 (9th Cir. Cir. 2002)

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 152

Filed 07/27/11 Page 5 of 49

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 153

Filed 07/27/11 Page 6 of 49

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 154

Filed 07/27/11 Page 7 of 49

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 155

Filed 07/27/11 Page 8 of 49

12, 22 12 12 12, 13, 19 22, 23, 24 5

Case 1:11-cv-00414-ACK -BMK Document 14-1 #: 156

Filed 07/27/11 Page 9 of 49

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 10 of 49 #: 157

development involved 2760 housing units.

amended order on November 25, 2005.

the Commission issued an order directing plaintiff to show cause

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 11 of 49 #: 158

After months of additional filings, motions, meetings,

III. ANALYSIS OF PLAINTIFFS COMPLAINT A. SUMMARY OF COUNTS I THROUGH XI

Each count purports to state

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 12 of 49 #: 159

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 13 of 49 #: 160

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 14 of 49 #: 161

912, 925 (9th Cir. 2001).

prevailing party in a section 1983 claim is entitled to an award

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 15 of 49 #: 162

of attorneys fees. action.

Count XI is not an independent cause of

damages and 2) prospective injunctive relief.

law, each of these permutations has significance.

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 16 of 49 #: 163

Group1 CLAIM 1. Deprivation of constitutional rights Taking

RELIEF CLAIMED Damages

Deprivation of constitutional rights Taking

Prospective injunctive relief Prospective injunctive relief

Deprivation of constitutional rights Deprivation of constitutional rights Deprivation of constitutional rights

Prospective injunctive relief

Deprivation of constitutional rights Taking

Prospective injunctive relief

Prospective injunctive relief Prospective injunctive relief

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 17 of 49 #: 164

Commissioners in their official capacity The Commission (i.e., the State)

Damages (just compensation)

Damages (just compensation)

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 18 of 49 #: 165

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 19 of 49 #: 166

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 20 of 49 #: 167

Commissioners are nominated and, by and

The governor has no power to remove commissioners or