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  • 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)

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    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

    his individual and official

    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

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    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

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    GOVERNMENTAL UNITS 1-10,

    Defendants.

    ________________________________

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    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

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    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, JANEDOES 1-10, DOE PARTNERSHIPS 1-

    10, DOE CORPORATIONS 1-10, DOE

    ENTITIES 2-10 and DOE

    GOVERNMENTAL UNITS 1-10,

    Defendants.

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    Civil No. 11-00414 ACK BMK

    MEMORANDUM IN SUPPORT OF

    MOTION

    MEMORANDUM IN SUPPORT OF MOTION

    TABLE OF CONTENTS

    Page

    TABLE OF AUTHORITIES ii

    I. INTRODUCTION 1

    II. FACTS 1

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    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

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    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

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    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

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    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

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    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

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    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. 91-10 (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

    Haw. Rev. Stat. 92-11 (Cum. Supp. 2010) 41

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    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

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    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.

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    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

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    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

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    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.

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    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

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    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

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    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.

    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

    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:

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    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.

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    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

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    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

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    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

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    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

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    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

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    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.

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    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.

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    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]

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    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

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    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.

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    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.

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    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

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    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

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    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.

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    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.

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    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

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    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

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    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.

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    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).

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    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

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    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

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    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

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    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.

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    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.

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    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.

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    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.

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    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.

    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

    8 Plaintiffs reference to a substantially advances claim,

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

    Lingle, supra.

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    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

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    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)

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    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

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    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.

    DATED: Honolulu, Hawaii, July 27, 2011.

    /s/ William J. Wynhoff

    Deputy Attorney General

    Attorney for Defendants

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    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, JANEDOES 1-10, DOE PARTNERSHIPS 1-

    10, DOE CORPORATIONS 1-10, DOE

    ENTITIES 2-10 and DOE

    GOVERNMENTAL UNITS 1-10,

    Defendants.

    ________________________________

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    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

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

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    2

    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

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    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, JANEDOES 1-10, DOE PARTNERSHIPS 1-

    10, DOE CORPORATIONS 1-10, DOE

    ENTITIES 2-10 and DOE

    GOVERNMENTAL UNITS 1-10,

    Defendants.

    ________________________________

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    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.

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    Michael C. Carroll, Esq.

    Matthew C. Shannon, Esq.

    E. Diane Erickson, Esq.

    DATED: Honolulu, Hawaii, July 27, 2011.

    /s/ William J. Wynhoff

    Deputy Attorney General

    Attorney for Defendants

    Case 1:11-cv-00414-ACK -BMK Document 14-3 Filed 07/27/11 Page 2 of 2 PageID #:200


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