Motion to Dismiss, Bridge at Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 11-00414 ACK...

8/6/2019 Motion to Dismiss, Bridge at Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 11-00414 ACK (July 27, 2011)

1/55

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 hisindividual and official

capacity, THOMAS CONTRADES, in

his individual and official

capacity, LISA M. JUDGE, in her

individual and official

capacity, NORMAND R. LEZY, in


capacity, NICHOLAS W. TEVES,

JR., in his individual and

official capacity, RONALD I.

HELLER, in his individual andofficial 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

)

)

)

)

)

)

)

)

)

))

)

)

)

)

)

)

)

)

)

))

)

)

)

)

)

)

Civil No. 11-00414 ACK BMK

DEFENDANTS MOTION TO DISMISSCOMPLAINT 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 1 of 2 PageID #:146


2/55

2

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 Filed 07/27/11 Page 2 of 2 PageID #:147


3/55




Plaintiff,

vs.




capacity, KYLE CHOCK, in his











HELLER, in his individual and

official capacity, DUANE KANUHA,



capacity, JOHN DOES 1-10, JANEDOES 1-10, DOE PARTNERSHIPS 1-




Defendants.

________________________________

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

))

)

)

)

)

)

)


MEMORANDUM IN SUPPORT OF

MOTION

MEMORANDUM IN SUPPORT OF MOTION

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

I. INTRODUCTION 1

II. FACTS 1

Case 1:11-cv-00414-ACK -BMK Document 14-1 Filed 07/27/11 Page 1 of 49 PageID#: 148


4/55

ii

III. ANALYSIS OF PLAINTIFFS COMPLAINT 11

A. SUMMARY OF COUNTS I THROUGH XI 11

B. ANALYSIS OF FEDERAL LAW CLAIMS IN THE COMPLAINT 13

C. ANALYSIS OF STATE LAW CLAIMS IN THE COMPLAINT 17

IV. SUMMARY OF ARGUMENT 18

A. FEDERAL LAW CLAIMS 18

B. STATE LAW CLAIMS 19

V. ARGUMENT 19

A. FEDERAL LAW CLAIMS 191. 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 20

b. The individual capacity defendants are

entitled to qualified immunity as to

all claims 33

2. Claims for prospective injunctive relief cannot

be brought against the Commissioners in

their individual capacity 36

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 37

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 38



5/55

iii

5. Plaintiff is not entitled to injunctive relief

as to the taking claim 40

6. This court should abstain from and stay

the claim for just compensation 41

B. STATE LAW CLAIMS 451. 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 45

2. Hawaii law does not afford a claim for damages

based on deprivation of constitutional rights 47

3. Plaintiff has not stated a claim based on

zoning estoppel 47

4. Plaintiff has no direct claim for relief

under Haw. Rev. Stat. chapters 91, 92, or 205

or HAR chapter 15-15 48

5. The court should abstain from considering

the state law taking claim or any state law

claims not otherwise dismissed 49

VI. CONCLUSION 49



6/55

iv

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) 16, 17

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912

(9th Cir.2001) 6

Ashcroft v. Iqbal, 129 S.Ct. 1937

(2009) 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) 14, 15, 16, 18, 25

Butz v. Economou, 438 U.S. 478 (1978) 16, 17, 18

Cannon v. US Bank, NA, 2011 WL 1637415 (D.Haw. 2011) 9

Cardenas v. Anzai, 311 F.3d 929 (9th Cir. Cir. 2002) 31

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) 6

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) 32

Dolan v. City of Tigard, 512 U.S. 374 (1994) 7

Edelman v. Jordan, 415 U.S. 651 (1974) 30

Ex Parte Young, 209 U.S. 123 (1908) 30



7/55

v

Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (en banc) 35

Green v. Mansour, 474 U.S. 64 (1985) 30

Group LLC v. Hawai'i County Liquor Com'n, 681 F.Supp.2d 1209

(D.Haw. 2009) 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) 25, 27

Hill v. Shelander, 924 F.2d 1370 (7th Cir.1991) 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) 25

Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) 6

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) 32

Malley v. Briggs, 475 U.S. 335 (1986) 25

Mier v. Lordsman Inc., 2011 WL 285862 (D.Haw. 2011) 9

Mireles v. Waco, 502 U.S. 9 (1991) 14

Mishler v. Clift, 191 F.3d 998 (9th Cir. 1999) 18, 24

Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996) 14

Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) 7

Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916 (9th Cir.

2004) 24

Pittman v. Oregon, Employment Dept., 509 F.3d 1065 (9th Cir.2007) 29

Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) 32, 33

Romano v. Bible, 169 F.3d 1182 (9th Cir. 1999) 24, 25



8/55

vi

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) 27

Scott v. Lacy, 811 F.2d 1153 (7th Cir. 1987) 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) 28

Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) 29

Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010) 34

Younger v. Harris, 401 U.S. 37 (1971) 32, 33

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) 37

Figueroa v. State, 61 Haw. 369, 604 P.2d 1198 (1979) 39

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) 22

Kaniakapupu v. Land Use Com'n, 111 Haw. 124, 139

P.3d 712 (2006) 27

Lanai Co., Inc. v. Land Use Com'n, 105 Haw. 296, 97 P.3d 372

(2004) 13



9/55

vii

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) 38

Poe v. Hawai'i Labor Relations Bd., 105 Haw. 97, 94 P.3d 652

(2004) 20

Punohu v. Sunn, 66 Haw. 485, 666 P.2d 1133 (1983) 40

Seibel v. Kemble, 63 Haw. 516, 631 P.2d 173 (1981) 37

State v. Taylor, 49 Haw. 624, 425 P.2d 1014 (1967) 37

Towse v. State, 64 Haw. 624, 647 P.2d 696 (1982) 38

Federal Statutes

42 U.S.C. 1983 passim

42 U.S.C. 1988 5, 6

State Statutes

Haw. Rev. Stat. 26-34 (2009) 12, 22

Haw. Rev. Stat. 26-35.5 (2009) 38

Haw. Rev. Stat. 91-9 (Cum. Supp. 2010) 19


Haw. Rev. Stat. 91-11 (1993) 20

Haw. Rev. Stat. 91-12 (1993) 20

Haw. Rev. Stat. 91-13 (1993) 20

Haw. Rev. Stat. 91-14 (1993 and Cum. Supp. 2010) 20, 32

Haw. Rev. Stat. 92-6 (1993 and Cum. Supp. 2010) 19, 21




10/55

viii

Haw. Rev. Stat. 205-1 (Cum. Supp. 2010) 12, 22

Haw. Rev. Stat. 205-2 (2009) 12

Haw. Rev. Stat. 205-3 (2009) 12

Haw. Rev. Stat. 205-4 (2009) 12, 13, 19

Haw. Rev. Stat. 205-6 22, 23, 24

Haw. Rev. Stat. 632-1 5

Federal Rules

FRCP 25(d) 28



11/55

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. Compl. 8 and

9.



12/55

10

The Commission approved the petition on January 17, 1989,

subject to various conditions. At the time, the proposed

development involved 2760 housing units. Among other things,

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. The

Commission approved the motion on July 9, 1991. 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

amended order on November 25, 2005. The order was specifically

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



13/55

11

why the Property should not revert to its former land use

classification for failure to comply with conditions. Compl.

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

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. Compl.

75. 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. It contains 225 paragraphs

supporting into eleven counts. Each count purports to state

claims against both the Commission and the individual

Commissioners in their individual and official capacities. Each



14/55

12

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. This is a class of one

claim. 163.

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.



15/55

13

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



16/55

14

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). SeeLee 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

912, 925 (9th Cir. 2001). For that reason, Count VI is not an

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



17/55

15

of attorneys fees. Count XI is not an independent cause of

action.

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.


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

damages and 2) prospective injunctive relief. Under federal

law, each of these permutations has significance. This

memorandum will therefore address 12 different combinations of

claims, defendants, and relief claimed, grouped and summarized

in the following table:



18/55

16

Group1 CLAIM DEFENDANT RELIEF CLAIMED

1. Deprivation of

constitutional

rights

Taking

Commissioners in

their individual

capacity

Commissioners in

their individual

capacity

Damages

Damages

2. Deprivation of

constitutional

rights

Taking

Commissioners in

their individual

capacity

Commissioners in

their individual

capacity

Prospective

injunctive relief

Prospective

injunctive relief

3. Deprivation of

constitutional

rights

Deprivation of

constitutional

rights

Deprivation of

constitutional

rights

Commissioners in

their official

capacity

The Commission

(i.e. the State)

The Commission

(i.e. the State)

Damages

Damages

Prospective

injunctive relief

4. Deprivation of

constitutional

rights

Commissioners in

their official

capacity

Prospective

injunctive relief

5. Taking

Taking

Commissioners in

their official

capacity

The Commission

(i.e., the State)

Prospective

injunctive relief

Prospective

injunctive relief

1 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.



19/55

17

6. Taking

Taking

Commissioners in

their official

capacity

The Commission(i.e., the State)

Damages (just

compensation)

Damages (justcompensation)

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



20/55

18

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



21/55

19

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



22/55

20

1. The individual capacity defendants are entitled to

absolute judicial immunity and qualified immunity as to

all claims

a. The individual capacity defendants are entitled to

absolute judicial immunity as to all claims

The State of Hawaii Land Use Commission is an agency of

the State, created by state statute. Haw. Rev. Stat. 205-1

(Cum. Supp. 2010). Commissioners 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). 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).

The Commission was originally created in 1963. It was

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. Haw. Rev. Stat. 205-

2(a) (2009). That task was completed long ago. See e.g. Haw.

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



23/55

21

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 down-

zone 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 compliancewith 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

2Judicial 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



24/55

22

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

comprehensive land use plan. In 1994, Buckles received notice

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 withoutengaging 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 judicialimmunity, which applies even if there are allegations that a

judicial decision resulted from a bribe or a conspiracy. Id.



25/55

23

minimum lot size. Buckles petitioned the King County Council

(Council) for a change. Ultimately the comprehensive plan

designated the Buckles property as rural neighborhood which

allowed for limited retail and commercial use. 191 F.3d at

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

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. 191 F.3d at

1132.



26/55

24

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 quasi-

judicial 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 forthe 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]



27/55

25

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 evaluatingthe 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-makerinsulated 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



28/55

26

appeal, but did not identify these

safeguards as dispositive. What mattered was

that federal administrative law requires

that agency adjudications contain manyof

the same safeguards as are available in the

judicial process. Id. at 513, 98 S.Ct. 2894

(emphasis added).

191 F.3d 1133-1134. Cf.Mishler v. Clift, 191 F.3d 998,

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

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.



29/55

27

Kaniakapupu v. Land Use Com'n, 111 Haw. 124, 140, 139 P.3d 712,

728 (2006). Andsee Compl. 40:

40. Also, the Order to Show Causespecifically 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 hearingafter reasonable notice. Haw. Rev. Stat. 91-9(a)

(Cum. Supp. 2010).

Oral and documentary evidence may be received and Everyparty shall have the right to conduct such cross-

examination as may be required for a full and true

disclosure of the facts, and shall have the right to

submit rebuttal evidence. Haw. Rev. Stat. 91-10 (Cum.

Supp. 2010).

Witnesses testify under oath. HAR 15-15-58.



30/55

28

Subpoenas may be used to compel testimony. HAR 15-15-58 and 69.

Certain protections and procedures are afforded if theCommission members have not personally heard and examined

all the evidence. Haw. Rev. Stat. 91-11 (1993).

The Commissions decision and order must be in writingor 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. Haw.

Rev. Stat. 91-12 (1993).

No official of an agency who renders a decision in acontested 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. Haw.

Rev. Stat. 91-13 (1993).

Any decision is subject to judicial review. Haw. Rev.Stat. 91-14 (1993 and Cum. Supp. 2010). 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



31/55

29

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

3 Unlike all other boards conducting adjudicatory functions

pursuant to section 91-9, the Commission is required to conduct



32/55

30

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). Their terms are staggered.

Id. 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

the rest are appointed at large. Commissioners elect their own

chairperson and select and hire their own employees, including

administrative personnel and an executive director. Haw. Rev.

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

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.



33/55

31

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 pre-

hearing and hearing procedures regarding notice,

testimony, cross-examination of witnesses, subpoenas,

motions, discovery, mediation, evidence, etc.)

The hearing officer issued detailed writtenrecommendations for findings and conclusions.

Process was allowed for written and oral objections tosuch 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.



34/55

32

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

be swayed by such considerations. Id. Similarly, plaintiffs in

our case unabashedly describe their attempts to intimidate the

Commissioners with implied threats of personal lawsuits. Compl.

106-107.

See alsoMishler 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



35/55

33

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

makers the target rather than the decision. It may not do so;

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



36/55

34

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. State statute and case law support the

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

competence could disagree on th[e] issue. The Commissioners

were not plainly incompetent and did not knowingly violate

the law.



37/55


38/55

36

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 individualcapacity

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,

4 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).



39/55

37

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. SeeScott v. Lacy, 811 F.2d

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 maintainedagainst the Commission or the Commissioners in their

official capacity for damages because these defendants

are not persons within the meaning of section 1983

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,

1071-1072 (9th Cir. 2007). The Supreme Court has held that

states and their agencies are not persons as that term is used

in section 1983. Will v. Michigan Dept. of State Police, 491



40/55

38

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



41/55

39

law. Ex parte Young, 209 U.S. 123 (1908). Only prospective

injunctive relief is allowed. Green v. Mansour, 474 U.S. 64, 68

(1985); Edelman v. Jordan, 415 U.S. 651 (1974). The seeming

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

request is fleshed out a little in Count IX ( 216). Plaintiff

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

to agricultural classification. There is nothing to enjoin.

In other words, plaintiff has not alleged an actual case or

controversy as to prospective injunctive relief, because it has



42/55

40

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. City of Los Angeles v. Lyons, 461

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

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

fully discussed below at pages 35-36. That discussion is

incorporated here by this reference.

5. Plaintiff is not entitled to injunctive relief as tothe 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

is just compensation. Plaintiffs claim for injunctive relief

does not state a claim. Lingle v. Chevron U.S.A. Inc., 544 U.S.

528, 536-537 (2005).

5 Plaintiffs co-developer also filed an administrative appeal of

the same decision. That appeal is pending in a different state

court. ECF No. 10.



43/55

41

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,

6Williamson Countyripeness requirements do[] not preclude

state courts from hearing simultaneously a plaintiff's requestfor 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.



44/55

42

and (3) resolution of the state law issue is uncertain. Wolfson

v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010).

This is a compelling, indeed paradigmatic, case for

Pullman abstention. 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

no adjudication of the taking claim will be required at all. It

is undisputed that resolution of the state law issue is

uncertain.7

7 The State expects to win, but does not claim the issue is free

from doubt. Presumably plaintiff feels the same.



45/55

43

The question of Youngerabstention 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). A

court

must abstain under Youngerif 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 Youngerdisapproves.

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

interests are implicated for the reasons discussed in connection

with Pullman abstention. Plaintiff has made all of its

constitutional arguments in the state case. And, a decision on

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.



46/55

44

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 Youngerpending 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.


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

8 Plaintiffs reference to a substantially advances claim,

Compl. 152, can be ignored because that theory is now defunct.

Lingle, supra.



47/55

45

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 CLAIMS1. 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,

1019 (1967). The Hawaii supreme court relied largely on

federal law when discussing absolute immunity for court-

appointed 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



48/55

46

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. Ashcroft v. Iqbal, 129 S.Ct. 1937, 194950

(2009).

The Commissioners are entitled to basically the same

qualified privilege under Hawaii case law. See Towse v. State,

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)



49/55


50/55

48

that plaintiff did not meet. See e.g. Compl. 11, 15, and

29.

4. 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



51/55

49

suit within 90 days of the final action. Haw. Rev. Stat. 92-

11 (Cum. Supp. 2010).

5. 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 Countyripeness 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.







52/55




Plaintiff,

vs.























Defendants.

________________________________

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

))

)

)

)

)

)

)




Pursuant to Local Rule 7.5(e), I certify this memorandum

complies with the applicable word limitation. This memorandum

uses a monospaced typeface (Courier New 12 point). According to

Case 1:11-cv-00414-ACK -BMK Document 14-2 Filed 07/27/11 Page 1 of 2 PageID #:197


53/55

2

the word processing system used to produce this memorandum, the

portion of the memorandum to be counted contains 8596 words.







54/55




Plaintiff,

vs.























Defendants.

________________________________

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

))

)

)

)

)

)

)




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.



55/55

Michael C. Carroll, Esq.

Matthew C. Shannon, Esq.

E. Diane Erickson, Esq.






Date post:	07-Apr-2018
Category:	Documents
Upload:	rht
View:	217 times
Download:	0 times

Motion to Dismiss, Bridge at Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 11-00414 ACK...

Documents