Bridge Aina Le'a, LLC v. Hawaii, State of , Land Use Commission et al
Filing
93
ORDER GRANTING REVISED MOTION TO DISMISS 14 . Signed by CHIEF U.S. DISTRICT JUDGE SUSAN OKI MOLLWAY on 8/25/2015. (afc)Excerpt of conclusion:"This order leaves only the following claims for adjudication: (1) the takings claims for just compensation in Counts I, II, and VIII, to the extent asserted against the Commission and Official Capacity Commissioners; and (2) Count IV, to the extent seeking damages against the Commission and Official Capacity Commissio ners." [footnote omitted]CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
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; KYLE CHOCK; THOMAS
)
CONTRADES; LISA M. JUDGE;
)
NORMAND R. LEZY; NICHOLAS W. )
TEVES; RONALD I. HELLER;
)
EDMUND ACZON, in his official )
)
capacity; CHAD MCDONALD, in
)
his official capacity;
)
JONATHAN SCHEUER, in his
)
official capacity; KENT
)
HIRANAGA, in his official
)
capacity; BRANDON AHAKUELO,
)
in his official capacity;
)
NEIL CLENDENINN, in his
)
official capacity; AARON
)
MAHI, in his official
capacity; SANDRA SONG, in her )
)
official capacity; ARNOLD
)
WONG, 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,
)
)
Defendants.
_____________________________ )
CIVIL NO. 11-00414 SOM/BMK
ORDER GRANTING REVISED MOTION
TO DISMISS
ORDER GRANTING REVISED MOTION TO DISMISS
I.
INTRODUCTION.
This case arises out of a decision by Defendant State
of Hawaii Land Use Commission (the “Commission”) to reclassify a
parcel of land from urban use to agricultural use.
Plaintiff
Bridge Aina Le’a, LLC (“Bridge”), the owner of the parcel, claims
that, in reclassifying the land, the Commission and certain
commissioners violated Bridge’s rights under the United States
Constitution, the Hawaii constitution, and various Hawaii laws.
The Hawaii Supreme Court has upheld the state trial court’s
invalidation of the Commission’s reclassification ruling.
Defendants Vladimir P. Devens, Kyle Chock, Thomas
Contrades, Lisa M. Judge, Normand R. Lezy, Nicholas W. Teves, and
Ronald I. Heller (collectively, “Individual Capacity
Commissioners”), sued in their individual capacities, were
commissioners at the time of the events underlying Bridge’s suit.
The former commissioners have been removed from this case as
Official Capacity Commissioners, and the current commissioners-Edmund Aczon, Chad McDonald, Jonathan Scheuer, Kent Hiranaga,
Linda Estes, Aaron Mahi, Nancy Cabral, and Arnold Wong–-have been
substituted as Defendants in their official capacities pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure.1
On March 30, 2012, this court stayed the entirety of
the present action pending resolution of Bridge’s administrative
appeal of the Commission’s decision in state court.
Defendants
appealed the stay, and Bridge filed a cross-appeal challenging
this court’s denial of its motion seeking a remand of all or part
1
Defendants noted this substitution in ECF No. 71, PageID
# 675. Since that filing, the Commission’s website reflects
other commissioners, and the names in the present order reflect
what the court understands to be more recent appointments.
2
of this removed action to state court.
After the Hawaii Supreme
Court affirmed the state trial court in the administrative
appeal, the Ninth Circuit ruled, “While this case originally met
Pullman’s requirements, abstention is no longer necessary.”
64, PageID # 662.
ECF
The stay was dissolved, and the case is back
on remand before this court, which now considers the merits of
Defendants’ motion to dismiss.
The motion is granted in all
respects now being moved on by Defendants.
II.
BACKGROUND.
A.
Factual Background.
The subject parcel of land consists of 1,060 acres in
South Kohala, on the island of Hawaii.
15.
See ECF No. 1-2, PageID #
On November 25, 1987, Signal Puako Corporation, the then-
owner of the parcel, petitioned for reclassification of the land
from “agricultural use” to “urban use” to allow development of a
large residential community.
See id.
On January 17, 1989, the
Commission issued its Findings of Fact, Conclusions of Law, and
Decision and Order approving the petition on condition that 60
percent of the units built be “affordable” units.
See id. at
PageID # 16.
On May 4, 1990, Signal Puako Corporation transferred
the property to Puako Hawaii Properties (“PHP”).
See id. at
PageID # 16.
On April 1, 1991, PHP filed a motion to amend the 1989
3
Decision and Order, seeking to decrease the total number of units
in the project.
See id. at PageID # 17.
On July 9, 1991, the
Commission issued its Amended Findings of Fact, Conclusions of
Law, and Decision and Order, which permitted a decrease in the
project’s density.
See id.
The 1991 Decision and Order also
amended the affordable housing condition by requiring a minimum
of 1,000 affordable units, in addition to the earlier 60 percent
requirement.
See id.
By September 1, 2005, Bridge had become the owner of
the property.
On that date, Bridge filed a motion to amend
certain conditions imposed by the 1991 Decision and Order so that
the affordable housing conditions would be “consistent and
coincide with County of Hawaii affordable housing requirements.”
See id at PageID # 20.
On November 25, 2005, the Commission entered its
Findings of Fact, Conclusions of Law, and Decision and Order
granting in part and denying in part Bridge’s motion.
PageID # 21.
The Commission stated:
See id. at
Petitioner shall provide housing
opportunities for low, low-moderate, and
moderate income residents of the State of
Hawaii by offering at least twenty percent
(20%) of the Project’s residential units at
prices determined to be affordable by the
County of Hawaii Office of Housing and
Community Development, provided, however, in
no event shall the gross number of affordable
housing units within the Petition Area be
less than 385 units. The affordable housing
units shall meet or exceed all applicable
4
County of Hawaii affordable housing
standards, and shall be completed in
substantial compliance with the
representations made to the Commission.
See id. at PageID #s 21-22.
The Commission also required Bridge
to “obtain, and provide copies to the Commission [of] the
certificates of occupancy for all of the Project’s affordable
housing units within five (5) years of November 17, 2005.”
Id.
at PageID # 22.
On December 9, 2008, the Commission issued an order to
show cause as to why the property should not revert to its former
agricultural classification given Bridge’s alleged failure to
perform in accordance with the conditions imposed by the
Commission and the representations and commitments made to the
Commission.
See id. at PageID # 24.
On March 20, 2009, Bridge notified the Commission that
it intended to assign its interest in the project to DW Aina Le’a
Development, LLC (“DW”).
See id. at PageID #s 26, 27.
At the end of a hearing on April 30, 2009, the
Commission voted unanimously to return the property to
agricultural use.
See id. at PageID # 27.
On August 19, 2009, Bridge moved for rescission of the
Commission’s ruling returning the land to agricultural use.
Bridge argued that reversion of the land was improper because
Bridge had made “substantial commencement of the use of the land”
in accordance with section 205-4(g) of Hawaii Revised Statutes.
5
See id. at PageID # 28.
On September 28, 2009, the Commission
rescinded its order to show cause but imposed a condition that
sixteen affordable units be completed by March 31, 2010.
at PageID # 29.
See id.
The Commission also permitted DW to be named as
a co-petitioner with Bridge.
See id. at PageID # 30.
Bridge alleges that sixteen affordable units were
completed by March 31, 2010, as the Commission required.
at PageID # 30.
See id.
The Commission, however, determined by vote that
Bridge and DW had not completed the sixteen units by March 31,
2010.
See id. at PageID # 33.
The Commission also voted to keep
in place the earlier order to show cause, to have a further
hearing on the matter, and to affirm that the date of November
17, 2010, was the deadline by which 385 affordable units had to
be built, not just a goal.
See id.
The Commission issued a
written order to that effect on July 26, 2010.
See id. at PageID
# 34.
On August 30, 2010, DW moved to amend certain
conditions imposed by the Commission.
See id. at PageID # 35.
Bridge later filed a motion alleging violations of various
statutes and administrative rules by the Commission, which Bridge
contended rendered action by the Commission invalid.
See id.
At a hearing on January 20, 2011, the Commission, by a
5-3 vote, decided to return the property to agricultural use.
See id. at 37.
The Commission also voted to deny as moot
6
Bridge’s motion seeking invalidation of earlier action by the
Committee.
See id. at 38.
The Commission did not at that time
rule on DW’s motion to amend.
On April 25, 2011, the Commission entered a written
order returning the property to agricultural use.
See id. at
PageID # 44.
On May 13, 2011, the Commission denied DW’s motion to
amend.
See id. at PageID # 45.
B.
Procedural Background.
Bridge filed two actions challenging the Commission’s
decision to reclassify the land to agricultural use.
Bridge not
only sought judicial review of the Commission’s decision through
an administrative appeal, Bridge also filed a separate action in
state court.
See ECF No. 1-2.
It is that separate action that
was removed to this court on June 27, 2011.
See ECF No. 1.
Bridge’s Complaint in this action asserts the following
claims: (1) denial of due process of law in violation of the
federal and state constitutions (Count I); (2) inverse
condemnation in violation of the federal and state constitutions
(Count II); (3) denial of equal protection of the law under the
federal and state constitutions (Count III); (4) deprivation of
common law vested rights (Count IV); (5) equitable estoppel
(Count V); (6) deprivation of constitutional rights under 42
U.S.C. § 1983 (Count VI); (7) violation of chapters 91, 92, and
7
205 of Hawaii Revised Statutes and chapter 15-15 of Hawaii
Administrative Rules (Count VII); (8) unconstitutional land
development conditions in violation of the federal and state
constitutions (Count VIII); (9) injunctive and declaratory relief
(Count IX); (10) declaratory relief pursuant to section 632-1 of
Hawaii Revised Statutes and Rule 57 of the Hawaii Rules of Civil
Procedure (Count X); and (11) attorneys’ fees and costs pursuant
to 42 U.S.C. § 1988 (Count XI).
See id.
On July 27, 2011, Defendants filed a motion to dismiss
all claims in this action.
See ECF No. 14.
On March 6, 2012, the circuit court in the
administrative appeal entered its Findings of Fact and
Conclusions of Law, and Order Reversing and Vacating the State of
Hawaii Land Use Commission’s Final Order.
See ECF No. 41-3.
On March 30, 2012, this court stayed the present action
pending final resolution of the administrative appeal of the
Commission’s decision in state court.
See ECF No. 48.
court declined Bridge’s remand request.
the Ninth Circuit.
This
Both sides appealed to
See ECF Nos. 49, 56.
On June 15, 2012, the state circuit court entered its
Amended Findings of Fact and Conclusions of Law, and Order
Reversing and Vacating the State of Hawaii Land Use Commission’s
Final Order.
See ECF No. 71-2, PageID # 716.
The circuit court
concluded that the Commission: (1) exceeded its statutory
8
authority and violated chapter 205 of Hawaii Revised Statutes;
(2) violated section 205-4(h) of Hawaii Revised Statutes; (3)
violated section 205-16 of Hawaii Revised Statutes; (4) violated
section 205-17 of Hawaii Revised Statutes; (5) violated section
205-4(g) of Hawaii Revised Statutes; (6) violated chapters 91 and
205 of Hawaii Revised Statutes and chapter 15 of Hawaii
Administrative Rules; and (7) violated Bridge’s and DW’s federal
and state due process and equal protection rights.
See ECF No.
71-2, PageID #s 716-20.
The Commission filed a notice of appeal and an
application to transfer the appeal from the Intermediate Court of
Appeals to the Hawaii Supreme Court.
The transfer application was granted.
See id. at PageID # 721.
See id.
On November 25, 2014, the Hawaii Supreme Court affirmed
in part and vacated in part the state circuit court’s second
amended final judgment.
See DW Aina Lea Dev., LLC v. Bridge Aina
Lea, LLC., 134 Haw. 187, 339 P.3d 685 (2014).
The Hawaii Supreme
Court affirmed the state circuit court’s determination that the
Commission had erred in returning the property to agricultural
use without complying with section 205-4 of Hawaii Revised
Statutes, but reversed the state circuit court’s determination
that Bridge and DW had had their procedural due process,
substantive due process, and equal protection rights violated.
See id. at 191, 339 P.3d at 689.
9
On January 23, 2015, the Ninth Circuit remanded this
case to this court for appropriate action in light of the Hawaii
Supreme Court’s decision.
See ECF 64, PageID # 663.
The Ninth
Circuit concluded that, while this case originally met the
requirements for Pullman abstention, abstention was no longer
necessary.
See id. at PageID # 662.
On April 2, 2015, Defendants filed a request to reopen
this case in light of the Ninth Circuit’s remand ruling and the
Hawaii Supreme Court’s decision in the administrative appeal.
See ECF No. 71.
Defendants also asked this court to resolve
their earlier motion to dismiss, which had been subject to this
court’s stay.
See id.
The court reopened the present action and instructed
the parties to submit supplemental briefing discussing what
issues remained in dispute in this case following the Hawaii
Supreme Court’s decision in the administrative appeal.
See ECF
No. 75.
The parties dispute the effect of the Hawaii Supreme
Court’s ruling on this case.
See ECF Nos. 76, 77.
Bridge
contends that the only claims rendered moot by the Hawaii Supreme
Court’s decision in the administrative appeal are its claims for
declaratory relief.
PageID # 1121.
See ECF No. 76, PageID # 775; ECF No. 86,
Defendants, on the other hand, have taken the
position in supplemental briefs, as amended by statements at the
10
hearing on June 29, 2015, that all of Bridge’s claims except the
monetary relief portions of the claims based on alleged takings,
imposition of unconstitutional land development conditions, and
deprivation of common law vested rights were resolved by the
Hawaii Supreme Court.
See ECF No. 77, PageID #s 786-89; ECF No.
83, PageID #s 1114-15.
The court first addresses the viability of Bridge’s
claims for declaratory and injunctive relief, and turns
thereafter to the claims for monetary forms of relief.
III.
LEGAL STANDARDS.
The motion to dismiss relies on both jurisdictional and
failure-to-state-a-claim grounds.
A.
Rule 12(b)(1).
Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a complaint may be dismissed for lack of subject
matter jurisdiction.
This court’s subject matter jurisdiction is limited to
“cases” or “controversies.”
2d 1024, 1030 (D. Haw. 2012).
Temple v. Abercrombie, 903 F. Supp.
This requires a federal court to
determine whether a plaintiff’s challenge is justiciable, a task
accomplished through consideration of the doctrines of standing,
mootness, and ripeness.
See Culinary Workers Union, Local 226 v.
Del Papa, 200 F.3d 614, 617 (9th Cir. 1999).
These doctrines
reflect that the court’s role “is neither to issue advisory
11
opinions nor to declare rights in hypothetical cases, but to
adjudicate live cases or controversies consistent with the powers
granted the judiciary in Article III of the Constitution.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th
Cir. 2000).
Federal courts may raise a jurisdictional issue sua
sponte if not raised by the parties.
See Bernhardt v. Cnty. of
Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002); S. Pac. Transp.
Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990).
B.
Rule 12(b)(6).
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court’s review is generally limited to the
contents of the complaint.
Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).
If matters outside the
pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.
See Keams v. Tempe Tech. Inst., Inc.,
110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
12
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; In re
Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555.
13
The complaint must “state a
claim to relief that is plausible on its face.”
Id. at 570.
“A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal,
556 U.S. at 678.
IV.
BRIDGE’S PROCEDURAL COMPLAINTS ARE WITHOUT MERIT.
Bridge raises various “procedural concerns,” contending
that it has been prejudiced by Defendants’ failure to file a new
motion to dismiss after the conclusion of the state
administrative appeal and the reopening of this case, and by this
court’s permitting of supplemental briefing regarding the effect
of the Hawaii Supreme Court’s decision and the viability of
certain of Bridge’s claims.
1130.
See ECF No. 86, PageID #s 1123,
This court is unpersuaded by Bridge’s complaints about the
procedure used in addressing Defendants’ motion to dismiss.
Defendants were under no obligation to file a new
motion to dismiss after this case was reopened.
Bridge points to
no such requirement and fails to explain, nearly four months
after this case was reopened, why imposition of such a
requirement would have been necessary.
Had this court required
Defendants to file a new motion, it is the issues raised through
supplemental briefing that would likely have been briefed.
Bridge identifies no specific matter that has prejudiced it or
that it has been denied an opportunity to address.
14
At most, Bridge says that Defendants have been
permitted to “backfill” their motion to dismiss through
supplemental briefing.
See ECF No. 86, PageID # 1123.
argument is plainly without merit.
This
First, a new motion could
have done the same, or greater, “backfilling.”
Second, the
supplemental briefing, which addressed the effect of the Hawaii
Supreme Court’s ruling on this action, gave Bridge the same
opportunity it gave Defendants to respond to the court’s
inquiries.
It is difficult to envision how Bridge could possibly
have been prejudiced by a supplemental briefing process in which
it had equal opportunity to respond to the court’s inquiries.
See ECF No. 75; ECF No. 82; ECF No. 84.
In fact, the
supplemental briefs and the hearing held on June 29, 2015, have
led to a reduction in the scope of Defendants’ motion to dismiss.
The original motion to dismiss sought dismissal of all claims
against all Defendants.
See ECF No. 14.
However, the original
motion to dismiss has been reduced in scope, so that the revised
motion to dismiss no longer covers all claims.
In a supplemental memorandum filed on June 15, 2015,
Defendants concede that, to the extent asserted against the
Commission and Official Capacity Defendants, the monetary relief
portions of certain claims are not rendered moot or otherwise
precluded by the Hawaii Supreme Court ruling.
Specifically,
Defendants agree that the monetary relief portions of Bridge’s
15
takings claims may proceed.
Count I alleges a regulatory taking,
and Count II alleges a taking by inverse condemnation.2
Defendants also concede that the monetary relief portions of the
vested rights claim in Count IV and the unconstitutional
conditions claim in Count VIII are not resolved by the Hawaii
Supreme Court’s ruling.
See ECF No. 77.
At the hearing held on June 29, 2015, the parties
therefore agreed that, as against the Commission and Official
Capacity Defendants, certain matters would be deleted from the
motion.
The court’s minutes reflect that the motion no longer
seeks dismissal of the monetary relief portions of the takings
claims, the vested rights claim, and the unconstitutional
conditions claim.
See ECF No. 82 (minutes of hearing).
This
means that this court does not presently have before it the
question of whether those claims for monetary relief are barred
by Williamson County Regional Planning Commission v. Hamilton
2
The regulatory taking allegations in Count I appear to be
intended by Bridge to be read as distinct from other due process
allegations in Count I. Thus, while the prohibition of a taking
without just compensation falls under the same federal and state
constitutional provisions that govern other due process
violations, and while the Hawaii Supreme Court held that there
was no due process violation, Bridge has taken the position that
the regulatory taking allegations in Count I, which includes
broad due process violation allegations, remain viable. See ECF
No. 76, Page ID # 770. Defendants parse Count I in the same way,
stating that the regulatory taking portion of Count I is not
barred by the Hawaii Supreme Court’s ruling that there was no due
process violation by the Commission. See ECF No. 77, PageID #
786.
16
Bank of Johnson City, 473 U.S. 172, 194-95 (1985) (holding that
federal takings claim is not reviewable in federal court until
plaintiff has sought compensation from state and been denied).3
Bridge’s complaints about this court’s requests for
3
To the extent any Defendant is found liable to Bridge for
a taking, no determination of just compensation has yet occurred
such that Bridge could claim that any compensation is inadequate.
The absence of such a determination does not necessarily mean
that this court is barred from considering Bridge’s takings
claims. The Supreme Court has referred to the Williamson County
state exhaustion requirement as prudential rather than
jurisdictional. See Suitum v. Tahoe Reg’l Planning Agency, 520
U.S. 725, 733 (1997); see also Guggenheim v. City of Goleta, 638
F.3d 1111, 1117-18 (9th Cir. 2010). Although the Ninth Circuit
treats ripeness as implicating both Article III and prudential
considerations, see Guatay Christian Fellowship v. Cnty. of San
Diego, 670 F.3d 957, 980 (9th Cir. 2011), it has recognized that
the Williamson County ripeness requirements are discretionary
when the case “raises only prudential concerns,” as is the case
here. Adam Bros. Farming v. Cnty. of Santa Barbara, 604 F.3d
1142, 1148 (9th Cir. 2010). This court has the discretion to
consider Bridge’s takings claim if warranted by “the fitness of
the issues for judicial decision and the hardship to the parties
of withholding court consideration.” Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1141-42 (9th Cir. 2000).
This court notes that Bridge’s takings claims have been
pending in this court for years. See Yamagiwa v. City of Half
Moon Bay, 523 F. Supp. 2d 1036, 1109 (N.D. Cal. 2007) (finding
hardship when parties had litigated case for two years and
decision would soon issue). Both parties point to Defendants’
removal of this case in addressing Bridge’s federal takings
claims. See ECF No. 88, PageID #s 1172-73; ECF No. 89, PageID #
1182. Although other circuits have determined that the
Williamson County state exhaustion requirement does not apply to
cases that have been removed to federal court, see Sherman v.
Town of Chester, 752 F.3d 554, 564 (2d Cir. 2014); Sansotta v.
Town of Nags Head, 724 F.3d 533, 545-47 (4th Cir. 2013), it does
not appear that the Ninth Circuit has opined on the matter. Cf.
Alpine Vill. Co. v. City of McCall, No. 1:11-CV-00287-BLW, 2011
WL 3758118, at *2-3 (D. Idaho Aug. 25, 2011) (applying state
exhaustion requirement in removed case). This court does not
decide this issue here.
17
supplemental briefing on issues of mootness and ripeness are
particularly weak.
Both issues being jurisdictional, they may be
raised by this court even if the parties fail to raise them.
See, e.g., Wilson v. Fisch, Civ. No. 08-00347 JMS/KSC, 2009 WL
464334, at *3 (D. Haw. Feb. 24, 2009) (“[T]he court has an
obligation to ensure that it has jurisdiction over the claims
raised by the parties, and may raise this issue sua sponte.”).
V.
CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF.
This court begins its discussion of Bridge’s claims
with an examination of the claims for declaratory and injunctive
relief.
A.
Bridge’s Claims Seeking Declaratory Relief Are
Moot.
Bridge concedes that the Hawaii Supreme Court decision
renders moot its claims for declaratory relief.
PageID # 1121.
See ECF No. 86,
Part of Count VII (state statutory and regulatory
violations), part of Count IX (seeking injunctive and declaratory
relief), and all of Count X (seeking declaratory relief) are
therefore dismissed.
See Rosemere Neighborhood Ass’n v. U.S.
Envtl. Prot. Agency, 581 F.3d 1169, 1172-73 (9th Cir. 2009) (“A
claim is moot if it has lost its character as a present, live
controversy.”); Foster v. Carson, 347 F.3d 742, 745 (9th Cir.
2003) (“Mootness is a jurisdictional issue, and federal courts
have no jurisdiction to hear a case that is moot, that is, where
no actual or live controversy exists.” (internal quotation marks
18
omitted)).
B.
Bridge’s Claims for Injunctive Relief Are Barred.
1.
All Injunctive Relief Claims Seeking to Stop
the Reclassification of Bridge’s Property as
Agricultural Are Moot.
The Hawaii Supreme Court’s ruling has the effect of
rendering moot all of Bridge’s requests for an injunction barring
the reclassification of its land as agricultural.
No further
relief in the form of an injunction is in issue given the Hawaii
Supreme Court’s ruling that the Commission acted improperly in
reclassifying the land as agricultural.
been invalidated.
any way.
The reclassification has
This mootness bar does not prejudice Bridge in
Instead, it operates to avoid the need for a second
ruling barring the reclassification that has already been
invalidated.
As this court has already noted with respect to the
declaratory relief claims, a claim is moot “if it has lost its
character as a present, live controversy.”
1172-73.
Rosemere, 581 F.3d at
If a plaintiff has already obtained the relief
requested for a certain claim, that claim is moot.
See Foster,
347 F.3d at 745 (“If there is no longer a possibility that an
appellant can obtain relief for his claim, that claim is moot and
must be dismissed for lack of jurisdiction.” (internal quotation
marks omitted)); Weinberg v. Whatcom Cnty., 241 F.3d 746, 755
(9th Cir. 2001) (“[R]emand for trial on the other bases
19
underlying [plaintiff’s] procedural due process claim would be
moot, given that [plaintiff] could not, in any event, receive
more than the nominal damages which we have already awarded him
here.”); Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d
1118, 1123 (9th Cir. 1997) (“A federal court does not have
jurisdiction ‘to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it.’ . . . .
If an event occurs that prevents the court from granting
effective relief, the claim is moot and must be dismissed.”);
Ortega v. Sherman, No. CV 14-6544 JLS FFM, 2015 WL 3901649, at *3
(C.D. Cal. June 23, 2015) (“Claims Four and Five are subject to
dismissal because Petitioner has already obtained the relief that
he seeks in these claims. . . .
Consequently, this Court can
provide no further relief in regards to either of these claims.
As such, the claims are moot.”);
Reyes v. Graber, No.
CV-14-01866-PHX-DJH, 2015 WL 727931, at *3 (D. Ariz. Feb. 19,
2015) (“[W]here a complainant has already obtained the relief he
sought, the claim is moot.”).
The Hawaii Supreme Court has issued a final judgment on
the merits of the state administrative appeal.
While the Hawaii
Supreme Court remanded the case to the state circuit court for
further proceedings consistent with its opinion, that does not
require the state circuit court to make further substantive
20
decisions regarding the validity of the reclassification.
The
state circuit court will presumably refer the matter back to the
Commission, but that will be a largely ministerial act.
There is
no indication that the Hawaii Supreme Court intended to permit
further judicial consideration of the reclassification issue, and
there is no longer a live controversy as to whether the
Commission may implement its earlier reclassification ruling.
The injunctive relief requests against Individual
Capacity Commissioners and Official Capacity Commissioners are no
less moot than the injunctive relief requests directed at the
Commission, even though the Commission was the only Defendant in
this case that was a party in the state administrative appeal.
A
claim against a state official in that person’s official capacity
is essentially a suit against the state.
See Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989).
As for Individual Capacity Commissioners, prospective
relief as against them is unavailable not only because of the
Hawaii Supreme Court’s decision, but also because their terms on
the Commission have ended and they now lack the authority to take
any action regarding the classification of Bridge’s property.
Although relief under the heading of “injunctive
relief” was likely unavailable to Bridge in the state
administrative appeal, the relief available in that proceeding
was essentially equivalent.
The state courts, in reviewing an
21
administrative decision, have the ability to “affirm the decision
of the agency or remand the case with instructions for further
proceedings; or . . . reverse or modify the decision and order if
the substantial rights of the petitioners may have been
prejudiced.”
Haw. Rev. Stat. § 91-14.
Given that authority, the
state administrative appeal made available relief that would lead
Bridge to essentially the same result sought by its requests for
injunctive relief in this action.
For example, if this court
granted Bridge’s request to enjoin Defendants from enforcing the
order reclassifying Bridge’s property, see ECF No. 1-2, PageID #
64, this court’s ruling would lead to the same result as the
state court’s reversal of the reclassification order.
Bridge has not demonstrated that there is any relief
available in this court under the heading of injunctive relief
that has not already been obtained in the state administrative
appeal.
At most, Bridge may be arguing that the state
administrative appeal did not make available relief equivalent to
its request that this court enjoin future action unrelated to the
precise reclassification at issue.
That form of injunctive
relief, while not moot, is unavailable to Bridge for other
reasons, as discussed later in this order.4
4
Because such claims are not moot, this court has no reason
to consider any exception to mootness such as the exception for
ongoing governmental action capable of repetition but evading
review. See Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975);
Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1118 (9th Cir. 2003).
22
Admittedly, it may be easier to discern the mootness of
some injunctive relief claims than others.
Count I (due process
violations), Count III (equal protection violations), Count VII
(violations of chapters 91, 92, and 205 of Hawaii Revised
Statutes and chapter 15-15 of Hawaii Administrative Rules),5 and
Count VIII (imposition of unconstitutional land development
conditions) seek injunctive relief based on allegations expressly
addressed by the Hawaii Supreme Court.
See Bridge Aina Lea, 134
Haw. at 218-19, 339 P.3d at 716-17 (addressing due process
rights); id. at 219-20, 339 P.3d at 717-18 (addressing equal
protection rights under federal and state constitutions); id. at
209-16, 339 P.3d at 707-14 (concluding that reversion of property
to agricultural use violated section 205-4 of Hawaii Revised
Statutes); id. at 215, 339 P.3d at 713 (addressing
unconstitutional land development condition claim).
However, even with respect to subjects the Hawaii
Supreme Court does not appear to have addressed, the injunctive
relief requests are moot.
The regulatory taking portion of Count
I is not expressly addressed by the Hawaii Supreme Court, but the
injunctive relief prayed for in Count I is the cessation of
Defendants’ allegedly illegal actions that “have divested the
5
Count VII seeks only declaratory and injunctive relief, so
Count VII, given Bridge’s concession that its declaratory relief
claims are foreclosed, is entirely disposed of by the Hawaii
Supreme Court’s ruling.
23
Property of substantially all of its economic use, rendering it
unmarketable, and forbidden substantially all practical,
beneficial or economic use of the Property.”
ID # 48.
ECF No. 1-2, Page
This is essentially a prayer to end the implementation
of the Commission’s reclassification decision.
The invalidation
of that decision is the very heart of the Hawaii Supreme Court’s
ruling.
Similarly, the injunctive relief prayed for in Count II
(inverse condemnation), Count IV (vested rights claim) and Count
V (equitable or zoning estoppel) is an order stopping the
reclassification of the land to agricultural.
Thus, those counts
ask for prospective relief to end violations of law, all as
detailed in Count IX (a general request for injunctive and
declaratory relief) and X (declaratory relief request) of the
Complaint.
The portion of Count IX that seeks an end to
continuing violations of law asks for an end to the land
reclassification so that Bridge will be “entitled to continue to
develop the Property as an urban parcel in accordance with the
1989 Decision and Order, as amended.”
Id. at Page ID # 65.
While the Hawaii Supreme Court stated that it was not ruling on
Bridge’s zoning estoppel and vested rights claims, see Bridge
Aina Lea, 134 Haw. at 207, 339 P.3d at 705, Bridge does not
identify cognizable injunctive relief that it might obtain under
counts not addressed by the Hawaii Supreme Court other than the
24
relief it has already obtained via the invalidation of the
Commission’s reclassification ruling.
At the hearing on this motion and in supplemental
briefing, Bridge has relied on the “voluntary cessation” doctrine
to support its claims for injunctive relief, arguing that those
claims should not be dismissed because Defendants have failed to
meet their burden of coming forward with evidence showing that it
is absolutely clear that wrongful conduct will not recur.
See
ECF No. 86, PageID #s 1124-27.
“Voluntary cessation” is an exception to mootness,
under which “the mere cessation of illegal activity in response
to pending litigation does not moot a case, unless the party
alleging mootness can show that the ‘allegedly wrongful behavior
could not reasonably be expected to recur.’”
at 1173.
Rosemere, 581 F.3d
Defendants do not appear to be arguing that their
voluntary cessation of challenged conduct moots out Bridge’s
claims for injunctive relief.
Such an assertion is more
typically made when there is ongoing conduct that has not in
large part been addressed through related litigation.
See, e.g.,
Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 860 (N.D. Cal.
2011) (addressing voluntary cessation doctrine when defendant
argued that it had voluntarily ceased conduct that plaintiffs
alleged inhibited access by removing and remediating all barriers
in its restaurants and issuing new accessibility policies).
25
The cases Bridge relies on simply do not apply to the
circumstances of this case, which involves past conduct that is
the subject of state court rulings.
Those cases provide a poor
source for imposing a burden on Defendants to produce evidence of
future compliance.
activity.
Defendants are not voluntarily ceasing any
They are under an order that concludes that they
improperly reclassified Bridge’s property.
2.
The Injunctive Relief Claims Relating to
Conduct Other Than Invalidation of the
Reclassification Ruling Are Dismissed as
Overbroad or as Simply Seeking an Order
Requiring Compliance with Law.
To the extent Bridge also seeks injunctive relief
relating to future action other than implementation of the
reclassification ruling, those injunctive relief claims are
dismissed as overbroad.
The court notes at the outset that Count IX is not
really a separate claim alleging some cognizable wrongdoing
distinct from what is alleged in other counts.
Instead, Count IX
is a mere request for the remedies of injunctive and declaratory
relief “[b]ased on Defendants’ numerous violations of Federal and
State law as set forth herein.”
ECF No. 1-2, PageID # 64.
As a
mere remedies request, Count IX is dismissed as not stating a
claim.
Even if Count IX could proceed without stating an
actual claim, it is subject to dismissal for reasons also
26
applicable to the requests in other counts for injunctive relief.
Bridge seeks to enjoin Defendants from, inter alia, “taking any
further action to reclassify the Property and amend the district
boundaries from from urban to agricultural,” “further interfering
with or denying Bridge’s rights to develop the Property in
accordance with the 1989 Decision and Order, as amended,” and
“taking any further acts that will prevent, interfere, or hinder
Bridge’s rights to develop and use the Property, except only nondiscricriminatory and non-dilatory enforcement of reasonable land
use requirements legitimately necessary to ensure health and
safety.”
ECF No. 1-2, PageID #s 64-65.
To the extent those requests seek to enjoin something
other than the implementation of the existing reclassification
ruling, those requests in Count IX for injunctive relief are
overbroad.
The injunctive relief requests in other counts are
similarly vague and rely on the overbroad allegations in Count
IX.
Thus, for example, Count II asserts, “Based on
Defendants’ gross violations of the Fifth and Fourteenth
Amendments of the Constitution of the United States of America
and Article I, Section 5 and 20 of the Hawaii Constitution,
Bridge is entitled to prospective relief to end continuing
violations of federal and state law as set forth in Counts IX and
X of this Complaint.”
ECF No. 1-2, PageID # 50.
27
Count IV similarly asserts, “Based on Defendants’
deprivation of Bridge’s vested rights, Bridge is entitled to
prospective relief to end continuing violations of federal and
state law as set forth in Counts IX and X of this Complaint.”
Id. at PageID # 55. Counts V and VI similarly seek injunctive
relief as set forth in Counts IX and X.
See id. at PageID #s 56,
59.
Overbroad injunctive relief claims cannot proceed.
See
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)
(an injunction must be “tailored to remedy the specific harm
alleged.” (internal quotation marks omitted)); E. & J. Gallo
Winery v. Gallo Cattle Co., 967 F.2d 1280, 1297 (9th Cir. 1992)
(“An overbroad injunction is an abuse of discretion.”).
Any claim for injunctive relief going beyond invalidation of the
existing reclassification ruling is not tailored to eliminate a
specific harm involved in this case, but instead targets a broad
range of future action, even if lawful.
Bridge would have this
court prevent Defendants from “taking any further action to
reclassify the Property” and from “further interfering with or
denying Bridge’s rights to develop the Property.”
2, PageID #s 64, 65.
See ECF No. 1-
This language fails to define the
prohibited activity specifically enough to give notice to
Defendants of what is enjoined.
Defendants would be left
uncertain whether they could exercise even lawful authority to
28
reclassify property.
The Commission might want to reclassify
Bridge’s property in the future through a completely lawful
process for completely lawful reasons, yet such a
reclassification, under Bridge’s requested injunctive relief,
would be barred.
The Commission would end up being unable to
impose any requirement at all on Bridge’s development of its
property.
Bridge offers no reason for this court to prevent
Defendants from exercising their lawful authority.
See
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp.
2d 1197, 1230 (C.D. Cal. 2007) (“The Court is guided generally by
the principle that it should only restrain or prohibit actions
that violate the law.”).
Bridge does appear to be trying to address this
overbreadth in at least one of its requests for injunctive
relief.
That request asks that Defendants be enjoined from
“taking any further acts that will prevent, interfere, or hinder
Bridge’s rights to develop and use the Property, except only nondiscriminatory and non-dilatory enforcement of reasonable land
use requirements legitimately necessary to ensure health and
safety.”
ECF No. 1-2, PageID #s 64-65 (emphasis added).
Even
with this qualification, however, the scope of the requested
injunction is unclear.
Bridge essentially seeks a general “obey
the law” injunction barring Defendants from taking any action
29
Bridge might view as violative of its rights.
would be impermissibly vague and overbroad.
Such an injunction
See Cuviello v. City
of Oakland, No. C-06-5517 MHP (EMC), 2009 WL 734676, at *3 (N.D.
Cal. Mar. 19, 2009) (“[B]oth provisions are ‘obey the law’
injunctions and thus not enforceable.”); United States v.
DeAngelo, No. SACV03-251GLT(MLGX), 2003 WL 23676571, at *2 (C.D.
Cal. June 26, 2003) (“Such an injunction does no more than
instruct Defendants to ‘obey the law,’ and is too broad and vague
for the Court to enforce.”); see also S.C. Johnson & Son, Inc. v.
Clorox Co., 241 F.3d 232, 240 (2d Cir. 2001) (“Under Rule 65(d),
an injunction must be more specific than a simple command that
the defendant obey the law.” (internal quotation marks and
brackets omitted)); Burton v. City of Belle Glade, 178 F.3d 1175,
1201 (11th Cir. 1999) (noting that courts are “incapable of
enforcing so broad and vague an injunction” as “obey the law”).
3.
Injunctive Relief Claims with Respect to
the Takings Claims Are Dismissed on the
Ground that, Assuming a Taking has
Occurred, an Injunction is Not a Proper
Remedy for a Taking.
There is an additional reason warranting dismissal of
the overbroad injunctive relief portions of Counts I, II, and
VIII.
All three of those counts include takings claims.
alleges a regulatory taking.
condemnation.
Count I
Count II alleges an inverse
Count VIII purports to be a claim relating to the
imposition of unconstitutional conditions, but any such claim is
30
a takings claim under a different name.
See Kamaole Pointe Dev.
LP v. Cnty. of Maui, 573 F. Supp. 2d 1354, 1366 (D. Haw. 2008)
(“[I]t is clear that Plaintiffs’ unconstitutional conditions
argument, relying as it does on Nollan/Dolan, can only be
classified as a takings challenge.”).
If Bridge establishes a taking, the proper remedy is
just compensation for the property taken rather than an order
enjoining any action.
See Ruckelshaus v. Monsanto Co., 467 U.S.
986, 1016 (1984) (“Equitable relief is not available to enjoin an
alleged taking of private property for a public use, duly
authorized by law, when a suit for compensation can be brought
against the sovereign subsequent to the taking.”); In re Nat’l
Sec. Agency Telecomm. Records Litig., 669 F.3d 928, 932 (9th Cir.
2011) (same).
In seeking injunctive relief as part of its takings
claims, Bridge appears to be blurring the distinction between its
takings claims and its due process claim.
The Ninth Circuit
clearly considers a claim that government action was not in
pursuit of a public purpose to fall outside a takings claim.
In
Equity Lifestyle Properties, Inc. v. County of San Luis Obispo,
548 F.3d 1184 (9th Cir. 2008), the Ninth Circuit said:
The parties dispute whether takings
jurisprudence governs this challenge, or
whether its merits turn only upon our due
process doctrine. The Supreme Court’s
decision in Lingle v. Chevron U.S.A., Inc., .
. . answers this question: ‘[The Takings
31
Clause] is designed not to limit the
governmental interference with property
rights per se, but rather to secure
compensation in the event of otherwise proper
interference . . . .’ Due process violations
cannot be remedied under the Takings Clause,
because ‘if a government action is found to
be impermissible--for instance because it
fails to meet the ‘public use’ requirement or
is so arbitrary as to violate due process-that is the end of the inquiry. No amount of
compensation can authorize such action.’
Id. at 1194 (internal quotation marks omitted)).
Accord Action
Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d
1020, 1026 n.1 (9th Cir. 2007) (citing Lingle v. Chevron U.S.A.
Inc., 544 U.S. 528, 532 (2005), to explain “the distinction
between substantive due process and Takings Clause claims”);
Miranda v. Bonner, No. CV 08-03178 SJO (VBKX), 2013 WL 794059, at
*10 (C.D. Cal. Mar. 4, 2013) (“[T]he takings clause only
‘requires compensation in the event of otherwise proper
interference amounting to a taking.’ . . . .
Thus, ‘the unlawful
seizure of property does not constitute a public use.’” (internal
quotation marks omitted)).
The Takings Clause presumes that the government has
acted in furtherance of a “public use.”
See Lingle, 544 U.S. at
543 (“[T]he Takings Clause presupposes that the government has
acted in pursuit of a valid public purpose.
The Clause expressly
requires compensation where government takes private property
‘for public use.’”).
Bridge therefore may not rely on a “public use”
32
challenge to support entitlement to injunctive relief with
respect to its takings claims.
VI.
BRIDGE’S PROCEDURAL AND SUBSTANTIVE DUE PROCESS AND
EQUAL PROTECTION CLAIMS ARE BARRED BY ISSUE PRECLUSION.
In part of Count I, Bridge asserts that its federal and
state procedural and substantive due process rights were
violated.
In Count III, Bridge asserts that its federal and
state equal protection rights were violated.6
Having already
determined that the injunctive relief portions of Counts I and
III are moot, this court, relying on the Hawaii Supreme Court’s
ruling in the state administrative appeal, concludes that the
portion of Count I seeking monetary relief for due process
violations (other than for a taking), as well as Count III’s
request for monetary relief, are barred by issue preclusion.
Issue preclusion applies to the monetary relief claims because
monetary relief for constitutional violations was not available
to Bridge in the state administrative appeal.
It is thus the
Hawaii Supreme Court’s decisions on the issues of whether due
process and equal protection rights were violated that this court
relies on, rather than any actual adjudication of monetary relief
6
The federal constitutional violations, asserted in freestanding claims, should more properly have been asserted under 28
U.S.C. § 1983, which is the basis for Count VI. With respect to
the state constitutional violations, Defendants challenge
Bridge’s right to bring such claims directly under the state
constitution, a challenge this court need not resolve here
because it dismisses those claims on other grounds.
33
claims.7
See, e.g., Plough By & Through Plough v. W. Des Moines
Cmty. Sch. Dist., 70 F.3d 512, 516 (8th Cir. 1995) (noting that
issue preclusion does not require identity of remedies or
availability of requested remedy).
Issue preclusion, a doctrine distinct from the doctrine
of claim preclusion, “applies to a subsequent suit between the
parties or their privies on a different cause of action and
prevents the parties or their privies from relitigating any issue
that was actually litigated and finally decided in the earlier
action.”
(2004).
Bremer v. Weeks, 104 Haw. 43, 54, 85 P.3d 150, 161
Issue preclusion applies when:
(1) the issue decided in the prior
adjudication is identical to the one
presented in the action in question; (2)
there is a final judgment on the merits; (3)
the issue decided in the prior adjudication
was essential to the final judgment; and (4)
the party against whom [issue preclusion] is
asserted was a party or in privity with a
party to the prior adjudication.
Id., 85 P.3d at 161.
Issue preclusion bars relitigation of whether Bridge’s
due process and equal protection rights were violated.
Those
issues, contained in Counts I and III, were decided by the Hawaii
7
This court nowhere in this order relies on Eleventh
Amendment immunity (although that may be the foundation for
judicial holdings that the state is not a “person” for purposes
of § 1983). Defendants acknowledge that they waived Eleventh
Amendment protections when they removed this action to this
court. See ECF No. 37, PageID # 327.
34
Supreme Court in the state administrative appeal, to which
Bridge, the party against whom issue preclusion is asserted, was
a party.
See Bridge Aina Lea, 134 Haw. at 218-19, 339 P.3d at
716-17 (concluding that state circuit court erred in determining
that Bridge’s due process rights under federal and state
constitutions were violated); id. at 219-20, 339 P.3d at 717-18
(concluding that state circuit court erred in determining that
Bridge’s equal protection rights under federal and state
constitutions were violated).
Those issues were essential to the final judgment.
Under Hawaii law, an issue decided in a prior adjudication is
essential to the final judgment when the final determination of
the litigation would have changed if the issue had been decided
differently.
See Matsuura v. E.I. du Pont De Nemours & Co., Civ.
No. 00-00328 SOM/LEK, 2007 WL 30600, at *5 (D. Haw. Jan. 4,
2007); see also Keahole Def. Coal., Inc. v. Bd. of Land & Natural
Res., 110 Haw. 419, 430, 134 P.3d 585, 596 (2006) (holding that
issue was essential to final judgment because it ultimately led
to court’s determination).
With respect to the present case, the
Hawaii Supreme Court’s final determination would have changed had
it determined that Bridge’s due process and equal protection
rights were violated.
The determination of those issues led
directly to the Hawaii Supreme Court’s decision affirming in part
and vacating in part the circuit court’s judgment.
35
Bridge argues that its federal constitutional claims
are not precluded by the Hawaii Supreme Court decision because
federal courts are not bound by a state court’s interpretation of
the United States Constitution.
See ECF No. 76, PageID # 776.
Bridge’s argument ignores the doctrine of issue preclusion and
would allow relitigation of issues already decided by a state
court.
While Bridge cites cases standing for the proposition
that a federal court is not bound by state court precedent on
federal constitutional questions, those cases were not decided in
the context of matters that had already been litigated in a prior
suit by the very plaintiff now seeking relief here.
It cannot be
the case that a federal court may sit in review of a state court
decision every time a state court passes on federal
constitutional issues.
Bridge also contends that the Hawaii Supreme Court’s
rulings on its constitutional claims in the state administrative
case cannot preclude Bridge’s constitutional claims in this
action because the Hawaii Supreme Court’s constitutional
discussion was dicta.
mistaken.
See ECF No. 86, PageID # 1133.
Bridge is
The Hawaii Supreme Court’s discussion of Bridge’s
constitutional claims was clearly necessary to its decision
affirming in part and vacating in part the circuit court’s
judgment.
See ECF No. 71-2, PageID # 757.
The Hawaii Supreme
Court expressly stated that “the circuit court erred in
36
concluding that their procedural due process rights had been
violated.”
Bridge Aina Lea, 134 Haw. at 219, 339 P.3d at 717.
Similarly, the Hawaii Supreme Court ruled that “the circuit court
erred in concluding the LUC violated Bridge’s and DW’s
substantive due process rights.”
Id.
The Hawaii Supreme Court
also said, “Bridge’s and DW’s equal protection rights were not
violated . . . .”
Id. at 220, 339 P.3d at 718.
A ground of
decision is not dicta merely because it is one of multiple
grounds of decision.
See Exp. Grp. v. Reef Indus., Inc., 54 F.3d
1466, 1471-72 (9th Cir. 1995) (“Where a decision rest[s] on two
or more grounds, none can be relegated to the category of obiter
dictum.” (quoting Woods v. Interstate Realty Co., 337 U.S. 535,
537 (1949)) (internal quotation marks and brackets omitted)).
In aid of escaping the preclusive effect of the Hawaii
Supreme Court’s ruling, Bridge also appears to raise issues it
believes the Hawaii Supreme Court decided incorrectly.
This
court, however, is not sitting in review of that decision and
cannot ignore its effect on this case merely because a party
disagrees with the outcome.
Bridge makes the curious argument that issue preclusion
does not bar litigation of whether its due process and equal
protection rights were violated because the Hawaii Supreme Court
affirmed the circuit court’s judgment on alternative grounds.
See ECF No. 86, PageID # 1131.
Citing comment “o” to section 27
37
of the Restatement (Second) of Judgments, Bridge argues that the
Hawaii Supreme Court’s decision is only “conclusive as to the
ruling that the [Commission] violated HRS Chapter 205-4.”
PageID # 1133.
Id. at
Comment “o” states:
If a judgment rendered by a court of first
instance is reversed by the appellate court
and a final judgment is entered by the
appellate court (or by the court of first
instance in pursuance of the mandate of the
appellate court), this latter judgment is
conclusive between the parties.
If the judgment of the court of first
instance was based on a determination of two
issues, either of which standing
independently would be sufficient to support
the result, and the appellate court upholds
both of these determinations as sufficient,
and accordingly affirms the judgment, the
judgment is conclusive as to both
determinations. In contrast to the case
discussed in Comment i, the losing party has
here obtained an appellate decision on the
issue, and thus the balance weighs in favor
of preclusion.
If the appellate court upholds one of these
determinations as sufficient but not the
other, and accordingly affirms the judgment,
the judgment is conclusive as to the first
determination.
If the appellate court upholds one of these
determinations as sufficient and refuses to
consider whether or not the other is
sufficient and accordingly affirms the
judgment, the judgment is conclusive as to
the first determination.
Bridge relies on the third paragraph of comment “o” to contend
that due process and equal protection issues may be litigated in
this case.
38
Bridge’s argument misses the mark.
Comment “o” to
section 27 does not apply to the Hawaii Supreme Court’s ruling on
Bridge’s constitutional claims.
While the Hawaii Supreme Court
affirmed the circuit court’s decision in certain respects, the
court stated, “[W]e vacate the judgment to the extent it is based
on the circuit court’s conclusion that the LUC violated Bridge’s
and DW’s constitutional rights . . . .”
Haw. at 220, 339 P.3d at 718.
Bridge Aina Lea, 134
Thus, in addressing Bridge’s
constitutional claims, the Hawaii Supreme Court was not
“accordingly” affirming any judgment.
Additionally, despite stating that Hawaii courts
“recognize and apply” section 27 of the Restatement (Second) of
Judgments, Bridge makes no showing that Hawaii courts rely on
comment “o” to that section.
Bridge cites Dorrance v. Lee, 90
Haw. 143, 976 P.2d 904 (1999), but that case cites only comment
“h” to section 27.
See id. at 149, 976 P.2d at 910.
The gist of Bridge’s contention appears to be that this
court can give preclusive effect only to the issues underlying
the portion of the Hawaii Supreme Court’s decision affirming the
lower court’s judgment.
This court finds no basis in Hawaii law
to ignore the issues determined in vacating part of the lower
court’s judgment.
Because all elements of issue preclusion are present in
this case with respect to whether Bridge’s due process and equal
39
protection rights were violated, those issues may not be
litigated in this action in connection with any party or any form
of relief.
The preclusive effect of the Hawaii Supreme Court’s
decision with respect to the due process portion of Count I and
the entirety of Count III (equal protection) applies to all
Defendants.
This court is unpersuaded by Bridge’s argument that
issue preclusion does not apply in this case because Defendants
are judicially estopped from advancing arguments in this court
contrary to their state court argument that the record was
insufficient to decide Bridge’s constitutional claims.
No. 86, PageID #s 1130-31.
See ECF
In the state proceeding, Defendants
stated: “The circuit court erred in ruling in an agency appeal without any opportunity for presentation of evidence and without
regard to the right to trial by jury - that the LUC and
individual commissioners violated developers’ constitutional
rights to equal protection and due process.”
1131.
Id. at PageID #
Bridge contends that this assertion precludes Defendants
from arguing that Bridge’s constitutional claims are precluded in
this court.
See id.
The crux of the judicial estoppel doctrine is “whether
the party has succeeded in persuading a court to accept that
party’s earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the
40
perception that either the first or the second court was misled.”
New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (internal
quotation marks omitted).
No such concern arises in this case.
At the outset, it does not appear that Defendants’
position in this action is inconsistent with their earlier
position.
Defendants’ argument in the state court action that
the circuit court erred in finding constitutional violations
“without any opportunity for presentation of evidence and without
regard to the right to trial by jury” is not inconsistent with
arguing that preclusion principles bar the constitutional issues
arising in this subsequent proceeding.
Defendants are no longer
arguing about whether the circuit court correctly found
constitutional violations.
If Defendants were indeed arguing that the state
circuit court had correctly determined the constitutional issues
without presentation of evidence and without regard to a jury
trial right, Bridge would have a viable argument as to
inconsistency.
here.
That, however, is not the situation presented
The issue arising in this action is whether the Hawaii
Supreme Court’s rulings on Bridge’s constitutional claims have
preclusive effect, a distinct issue from whether or not the state
circuit court erred in even considering Bridge’s constitutional
claims.
Defendants’ reliance on preclusion is not inconsistent
with their prior assertions.
41
Further, even assuming Defendants were asserting
inconsistent positions, the Hawaii Supreme Court explicitly
rejected Defendants’ argument that the circuit court had erred in
considering Bridge’s due process and equal protection claims
without the presentation of evidence or a trial by jury.
While
vacating the state circuit court’s substantive rulings on those
constitutional claims, the Hawaii Supreme Court found no
procedural error of the type argued by Defendants.
Aina Lea, 134 Haw. at 218, 339 P.3d at 716.
See Bridge
Judicial estoppel
only applies when the court “relied on, or accepted, the party’s
previous inconsistent position.”
Hamilton v. State Farm Fire &
Cas. Co., 270 F.3d 778, 783 (9th Cir. 2001).
Because the elements of judicial estoppel are not met
in this case, Bridge’s judicial estoppel argument fails.
VII.
COUNT V (EQUITABLE ESTOPPEL) IS DISMISSED AS AGAINST
ALL DEFENDANTS.
In Count V, Bridge alleges that Defendants are estopped
from taking certain actions because they made “numerous
representations to Bridge” and Bridge changed its position in
reliance on those assurances that it had met the zoning and other
conditions imposed by Defendants.
See ECF No. 1-2, PageID # 56.
Count V prays for injunctive relief and money damages.
This
court has already dismissed the injunctive relief portion of
Count V and turns now to the money damages portion of Count V.
Money damages are not available under Hawaii law on an equitable
42
estoppel theory.
In Allen v. City & County of Honolulu, 58 Haw. 432, 571
P.2d 328 (1977), the Hawaii Supreme Court held that an award of
damages was not the proper remedy for an equitable estoppel
claim.
In reversing the trial court’s award of damages for costs
incurred in reliance on prior zoning requirements, the court
stated:
[T]o permit damages for development costs is
not only unprecedented but would also be
unsound policy. Were we to affirm the award
of damages, the City would be unable to act,
if each time it sought to rezone an area of
land it feared judicially forced
compensation. Monetary awards in zoning
disputes would inhibit governmental
experimentation in land use controls and have
a detrimental effect on the community’s
control of the allocation of its resources. .
. . Prohibiting damages for development
costs does not mean that a property owner
must suffer an injury without compensation,
for if the facts establish that the doctrine
of equitable estoppel should apply to prevent
the City from enforcing newly enacted
prohibitive zoning, then the property owner
is entitled to continue construction.
Id. at 438, 571 P.2d at 331.
In addition, Count V is insufficiently pled.
This is
so with respect to the monetary relief sought, as well as to the
injunctive relief claim, already dismissed on other grounds in
this order.
Injunctive relief is the appropriate remedy for
equitable estoppel.
That is, a defendant could be estopped from
acting in a manner inconsistent with a defendant’s assurances on
43
which a plaintiff reasonably relied.
The problem for Bridge,
however, is that the allegations concerning the assurances and
any reasonable reliance by Bridge on such assurances are so vague
and confusing as to provide no notice to Defendants as to the
bases of Count V.
Count V does indeed allege that Defendants gave Bridge
assurances.
Bridge says, “Defendants made numerous
representations to Bridge, including, but not limited to,
assurances that Bridge would be entitled to proceed with its
development based on the 1989 Decision and Order, as amended.”
See ECF No. 1-2, PageID # 56.
However, Count V also “repeats,
realleges, and incorporates by reference” all preceding
allegations in the Complaint.
Id. at PageID # 55.
Those
preceding allegations refer to numerous changes to the 1989
Decision and Order, making it unclear exactly which assurances
Bridge is basing Count V on.
Moreover, those preceding allegations refer to various
conditions imposed by Defendants on whatever Defendants agreed
to.
Because Count V is unclear as to which particular assurances
form the foundation for Count V, it is unclear which conditions
applied to those assurances, or whether Bridge complied with the
applicable conditions.
Count V alleges that “Bridge reasonably
relied in good faith and to its detriment on the promises and
representations of Defendants and past conduct of Defendants, and
44
based on such reliance, changed its position to its detriment.”
Id. at PageID # 56.
This conclusory allegation is not tied to
any factual detail and is notably silent as to whether Bridge
complied with any attendant conditions.
Such compliance appears
from the allegations in the Complaint to be necessary for any
reasonable reliance.
In short, the allegations in Count V
consist of nothing more than the very “labels and conclusions,
and a formulaic recitation of the elements of a cause of action”
that the Supreme Court said in Twombly “will not do.”
550 U.S.
at 555.
This court recognizes that detailed factual allegations
are not required, and that the factual allegations must be taken
as true on a motion to dismiss, but here Count V does not provide
the grounds of Bridge’s entitlement to relief.
See id.
This
court therefore cannot draw “the reasonable inference that the
defendant is liable for the misconduct alleged.”
U.S. at 678.
See Iqbal, 556
The monetary relief portion of Count V is
dismissed.
VIII.
ALL REMAINING CLAIMS IN ISSUE ON THIS REVISED MOTION TO
DISMISS ARE DISMISSED.
In the preceding pages, this court has dismissed all
claims for declaratory and injunctive relief, the claims for
monetary relief based on alleged federal and state due process
and equal protection violations (a portion of Count I and all of
Count III), and the equitable or zoning estoppel claim (Count V).
45
As noted earlier, Defendants are no longer moving for
dismissal of the monetary relief portions of (a) the takings
claims in Counts I, II, and VIII to the extent those claims are
asserted against the Commission and Official Capacity
Commissioners, and (b) the claims in Count IV (vested rights) to
the extent Count IV is asserted against the Commission and
Official Capacity Commissioners.
While those monetary relief
claims may be the subject of future motions, those particular
matters are not before this court on the present motion.
Given the above, the claims against the Commission and
Official Capacity Commissioners that remain to be addressed in
this order are Counts VI (42 U.S.C. § 1983 claim) and XI (42
U.S.C. § 1988 attorney’s fee claim).
The claims against Individual Capacity Defendants that
remain for this court’s decision on this motion are the claims
for monetary relief in (a) Counts I, II, and VIII (takings
claims), (b) Count IV (vested rights), and (c) Counts VI (§ 1983)
and XI (§ 1988).
A.
Counts VI (§ 1983) and IX (§ 1988) Are Dismissed
as Against the Commission and Official Capacity
Commissioners.
Count VI alleges federal constitutional violations by
the Commission, Official Capacity Defendants, and Individual
Capacity Defendants, all allegedly actionable under 42 U.S.C.
§ 1983.
Count IX seeks attorney’s fees and costs under 42 U.S.C.
46
§ 1988 for these alleged federal violations.
Counts VI and IX
are dismissed as against the Commission and Official Capacity
Commissioners.
Section 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress[.]
42 U.S.C. § 1983.
A § 1983 claim for damages is not cognizable against
the state, arms of the state, or state officials sued in their
official capacities.
Such parties are not “persons” under § 1983
and cannot be held liable for money damages under § 1983.
See
Thornton v. Brown, 757 F.3d 834, 839 (9th Cir. 2013); Doe v.
Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997).
The Commission is an arm of the State of Hawaii.
Stat. § 205-1.
See Haw. Rev.
Official Capacity Commissioners are themselves
indistinguishable from the State of Hawaii.
See 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 official’s office.
As such, it is no different from
a suit against the State itself.” (citation omitted)).
47
Accordingly, neither the Commission nor Official Capacity
Commissioners may be sued for money damages under § 1983.
While
prospective injunctive relief remains available against state
actors, see Hibbs v. Dep’t of Human Res., 273 F.3d 844, 871 (9th
Cir. 2001), all claims for prospective injunctive relief have
been dismissed in the preceding pages of this order.
In the absence of a cognizable claim under § 1983,
attorney’s fees for a constitutional violation under 28 U.S.C.
§ 1988 are unavailable.
This leaves only claims for monetary
relief in Counts I, II, and VIII (takings claims), and claims for
monetary relief in Count IV (vested rights)8 as against the
Commission and Official Capacity Commissioners.
B.
All Remaining Claims Against Individual Capacity
Commissioners Are Dismissed.
The court turns now to the remaining claims against
Individual Capacity Commissioners.
Those are claims for monetary
relief in Counts I, II, IV, and VIII, together with the money
damage claims in the § 1983 claim in Count VI and the claim for
attorney’s fees and costs in the § 1988 claim in Count IX.
8
Later in this order, this court determines that monetary
relief is not available under Count IV with respect to Individual
Capacity Commissioners. Because the parties have reserved for
later proceedings the monetary relief claim against the
Commission and Official Capacity Commissioners in Count IV, this
court is not adjudicating that claim here, although it is not
presently apparent why monetary relief would be available against
the Commission and Official Capacity Commissioners.
48
1.
All Remaining Claims Against Individual
Capacity Commissioners Are Barred by
Quasi-Judicial Immunity.
a.
Federal Law.
Individual Capacity Commissioners contend that they are
entitled to quasi-judicial immunity under federal law as to all
federal claims asserted against them.
167.
See ECF No. 14-1, PageID #
The court agrees.
Under the doctrine of quasi-judicial immunity, absolute
judicial immunity may be “extended to certain others who perform
functions closely associated with the judicial process.”
Duvall
v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (internal
quotation marks omitted).
“When judicial immunity is extended to
officials other than judges, it is because their judgments are
‘functional[ly] comparab[le]’ to those of judges.”
Antoine v.
Byers & Anderson, Inc., 508 U.S. 429, 436 (1993) (quoting Imbler
v. Pachtman, 424 U.S. 409, 423 n.20 (1976)).
Accordingly, courts take a functional approach to
determining whether quasi-judicial immunity is appropriate by
“looking to the nature of the function performed and not to the
identity of the actor performing it.”
Burton v. Infinity Capital
Mgmt., 753 F.3d 954, 960 (9th Cir. 2014) (internal quotation
marks omitted).
The function performed “must be a judicial act
with a sufficiently close nexus to the adjudicative process.”
Id. (internal quotation marks omitted).
49
However, “it is only
when the judgment of an official other than a judge involves the
exercise of discretionary judgment that judicial immunity may be
extended to that nonjudicial officer.”
Id.
“The touchstone for
the doctrine’s applicability has been performance of the function
of resolving disputes between parties, or of authoritatively
adjudicating private rights.”
Antoine, 508 U.S. at 435-36.
The following judicial characteristics are considered
in determining whether an official performs duties functionally
comparable to those of a judge: “an adversarial proceeding, a
decision-maker insulated from political influence, a decision
based on evidence submitted by the parties, and a decision
provided to the parties on all of the issues of fact and law.”
Buckles v. King Cnty., 191 F.3d 1127, 1134 (9th Cir. 1999).
Individual Capacity Commissioners performed duties
functionally comparable to those of a judge.
They engaged in
proceedings relating to the classification of Bridge’s parcel
that were adversarial.
As an example, the State Office of
Planning, which must appear in proceedings for district boundary
amendments as a party, see Haw. Admin. Rules § 15-15-52(a),
opposed Bridge, “urg[ing] the Commission to . . . change the land
to agricultural use.”
ECF No. 1-2, PageID #s 32-33; see Buckles,
191 F.3d at 1134 (noting “dramatically polar positions” of
relevant parties in finding proceeding to be adversarial).
50
Individual Capacity Commissioners participated in
proceedings conducted under a statutory and regulatory framework
providing for numerous quasi-judicial procedures.
See Haw. Rev.
Stat. Chapter 91; Haw. Admin. Rules §§ 15-15-51 to 76 and 15-1580 to 84 (discussing, inter alia, oral argument, evidence, crossexamination, witnesses, subpoenas, motions, and briefs); see also
ECF No. 1-2, PageID # 24 (“[T]he Order to Show Cause specifically
stated that ‘the Commission will conduct a hearing on this matter
in accordance with the requirements of Chapter 91, Hawaii Revised
Statutes, and Subchapters 7 and 9 of Chapter 15-15-, Hawaii
Administrative Rules.’”).
Individual Capacity Commissioners
considered evidence and entered a written order regarding
reversion of Bridge’s property to agricultural use.
1-2, PageID # 44.
See ECF No.
Bridge also had the opportunity to appeal the
decision to state circuit court and through the state appellate
system.
See Buckles, 191 F.3d at 1134 (noting right to appeal
was relevant, though not necessarily dispositive, to
determination of whether quasi-judicial immunity applied); see
also Hale O Kaula Church v. Maui Planning Comm’n, 229 F. Supp. 2d
1056, 1066 (D. Haw. 2002) (discussing right to appeal in
concluding that quasi-judicial immunity applied).
Buckles
indicates that these characteristics are consistent with the
application of quasi-judicial immunity.
51
Bridge reads the Ninth Circuit’s decision in Zamsky v.
Hansell, 933 F.2d 677 (9th Cir. 1991), as foreclosing any
possibility of quasi-judicial immunity for Individual Capacity
Commissioners.
In Zamsky, the Ninth Circuit concluded that
members of the Oregon Land Conservation and Development
Commission (the “LCDC”), which adopted state-wide goals and
reviewed local land use plans for compliance with those statewide goals, were not entitled to absolute immunity.
678-80.
See id. at
The court concluded that the LCDC’s commissioners had
not acted in a judicial capacity, in part because “the LCDC
Commissioners are not insulated from the agency that promulgates
the rules to be applied.”
Id. at 679.
Instead, those
commissioners were the very people who had created the goals that
land use plans had to serve.
Id.
The court concluded that the
LCDC’s commissioners “combine the functions of lawmaker and
monitor of compliance,” and that “[s]uch combined functions . . .
are inconsistent with the judicial role and judicial immunity.”
Id.
Bridge says that Individual Capacity Commissioners,
like Oregon’s LCDC commissioners, functioned in a dual role.
ECF No. 36, PageID #s 276-83.
See
Bridge describes Individual
Capacity Commissioners as having first “acted as lawmakers,
establishing the conditions, requirements and ‘deadlines’ for the
Property and the Project,” then “as monitors of compliance” when
52
they issued an order to show cause and “ultimately reclassif[ied]
the Property based on a purported failure to comply with
conditions they had imposed.”
Id. at PageID # 276.
According to
Bridge, these combined functions preclude application of quasijudicial immunity.
The court disagrees.
The actions taken by Individual
Capacity Commissioners are more characteristic of the judicial
process than the actions in Zamsky.
As noted above, numerous
quasi-judicial procedures apply to Individual Capacity
Commissioners’ actions.
Oregon’s LCDC, which resembled an
executive body, appears to have lacked judicial trappings such as
hearings, witnesses, oral argument, subpoenas, motions, and
briefs applicable to the Commission in this case.
The Ninth
Circuit, in fact, noted that the LCDC’s proceedings were often
nonadversarial.
See Zamsky, 933 F.2d at 679.
In the present case, the Commission’s judicial
trappings reduce the importance of any dual role played by
Individual Capacity Commissioners.
Notably, the Zamsky court did
not rely solely on the LCDC commissioners’ dual functions in
concluding that they had not acted in a judicial capacity,
suggesting that this factor was not necessarily determinative on
its own.
Moreover, while the Commission in the present case
ultimately returned Bridge’s property to agricultural use based
53
on a failure to comply with conditions the Commission had itself
imposed, Individual Capacity Commissioners’ ability to impose
conditions on any decision to reclassify land is not of the same
quality as the LCDC commissioners’ creation of standards for
local land use plans and the subsequent monitoring of compliance
with those conditions.
In Zamsky, the LCDC’s “primary functions”
were to create and monitor land use plan standards.
678.
See id. at
The LCDC appears to have created nearly the entirety of the
framework it had a duty to enforce.
By contrast, the Commission
in the present case imposed conditions attendant to the exercise
of its power to reclassify land.
See Haw. Rev. Stat. § 205-4(g)
(“[T]he commission, by filing findings of fact and conclusions of
law, shall act 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 and
criteria established pursuant to section 205-17 or to assure
substantial compliance with representations made by the
petitioner in seeking a boundary change.
The commission may
provide by condition that 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”).
54
The Commission in the present case did not create the
overarching framework under which it was operating; that
framework was instead created by statute.
distinction.
This is a crucial
Judicial bodies routinely impose and enforce
various rules and conditions.
As an example, this court imposes
local rules governing practice within this district.
If a party
litigates the enforcement of a local rule, the enforcement of
that local rule would surely be characterized as a judicial act.
Courts also impose supervised release conditions in criminal
cases, with the possibility that supervised release will be
revoked upon violation of those conditions.
Yet, the revocation
of supervised release cannot be characterized as anything other
than a judicial act.
Clearly, judicial or quasi-judicial officials are not
automatically divested of the protection of immunity just because
they enforce provisions they create.
The principles outlined in
Zamsky must always be examined in the context of a particular
case.
Here, the Commission’s imposition of conditions to
reclassifying Bridge’s land does not, on its own, render the
Commission so akin to a lawmaking body that it triggers the
Zamsky court’s concern with combining the “functions of lawmaker
and monitor of compliance” in a manner “inconsistent with the
judicial role.”
See Zamsky, 933 F.2d at 679.
55
In the alternative, Bridge argues that the process
followed by Individual Capacity Commissioners in returning
Bridge’s property to agricultural use actually bore little
resemblance to a judicial process.
Bridge alleges that
Individual Capacity Commissioners refused to hear some of
Bridge’s evidence, failed to discuss or cite any evidence before
reinstating the order to show cause, engaged in illegal ex parte
communications, and predetermined the result of the proceedings.
ECF No. 36, PageID # 283.
Bridge also argues that Vladimir P.
Devens, an Individual Capacity Commissioner, was biased against
Bridge and participated in proceedings despite having a conflict
of interest.
Id.
Even accepting for purposes of this motion the truth of
these and other allegations in Bridge’s Complaint regarding the
Commission’s process, quasi-judicial immunity applies to
Individual Capacity Commissioners.
Although Bridge argues that
there were few, if any, characteristics of the judicial process
in the Commission’s proceedings, see ECF No. 36, PageID # 283,
Bridge does not actually point to alleged facts or to law
sufficient to support that argument.
Bridge appears to acknowledge, for example, that
multiple hearings were held, evidence was considered, motions
were made, oral argument was permitted, and written decisions
were issued.
See, e.g., ECF No. 1-2, PageID #s 15-45.
56
Even if
Bridge is contending that those quasi-judicial procedures were a
mere facade, allegations of bias, bad faith, malice, or
corruption generally do not bar the application of quasi-judicial
immunity.
See, e.g., Pierson v. Ray, 386 U.S. 547, 554 (1967);
In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002).
Nor do “grave procedural errors” preclude quasijudicial immunity.
Killinger v. Johnson, 389 F.3d 765, 770 (7th
Cir. 2004); see also Stump v. Sparkman, 435 U.S. 349, 359 (1978).
After all, judges themselves may commit procedural errors without
losing judicial immunity.
Bridge’s argument that Individual Capacity
Commissioners are not insulated from political influence also
fails to defeat quasi-judicial immunity.
Bridge contends that
Individual Capacity Commissioners were under pressure to kill
Bridge’s project because: (1) the Office of Planning, which
publicly advocated selling the land to another developer, is
under the governor’s Department of Business, Economic Development
and Tourism, like the Commission; and (2) Individual Capacity
Commissioners and the Director of the Office of Planning are
appointed by the governor.
See ECF No. 36, PageID # 284.
The connection Bridge attempts to draw between
Individual Capacity Commissioners and alleged pressure to conform
to “the position of the Governor, who appointed them,” is
tenuous, at best.
Commissioners may not be removed or suspended
57
except for cause after notice and public hearing.
Stat. § 26-34(d).
See Haw. Rev.
Commissioners are appointed for staggered
terms of four years, with a commissioner appointed from each of
the counties and joined by one at-large member.
Stat. §§ 26-34(a), 205-1.
public office.
See Haw. Rev.
No commissioner may hold any other
See Haw. Rev. Stat. § 205-1.
These kinds of
safeguards serve to provide at least some insulation from
political influence.
See Buckles, 191 F.3d at 1134.
Mere
speculation as to the possibility of political influence cannot,
without more, defeat quasi-judicial immunity any more than it
could defeat judicial immunity.
Individual Capacity Commissioners are entitled to
quasi-judicial immunity under federal law.
All federal claims
asserted against Individual Capacity Commissioners for monetary
relief are therefore dismissed.
Because the court has determined that Individual
Capacity Commissioners are entitled to quasi-judicial immunity
with respect to Bridge’s federal claims seeking damages, it need
not consider Individual Capacity Commissioners’ alternative
argument that they are entitled to qualified immunity with
respect to those claims.
b.
State Law.
The doctrine of quasi-judicial immunity also exists
under Hawaii law with respect to state-law claims.
58
See, e.g.,
Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 63-65, 647 P.2d 713,
718-19 (1982).
Although Hawaii courts have not yet considered
whether quasi-judicial immunity applies specifically to members
of the Land Use Commission, this court finds adequate basis to
extend the protection of quasi-judicial immunity to Individual
Capacity Commissioners in this case.
In determining the application of quasi-judicial
immunity under Hawaii law, Hawaii courts have frequently relied
on federal law.
See, e.g., Hawaii Ventures, LLC v. Otaka, Inc.,
114 Haw. 438, 486, 164 P.3d 696, 744 (2007); Hulsman, 65 Haw. at
64-65, 647 P.2d at 718-19; Seibel v. Kemble, 63 Haw. 516, 523-27,
631 P.2d 173, 178-80 (1981).
This court does the same and
concludes that quasi-judicial immunity applies to Individual
Capacity Commissioners under Hawaii law for the same reasons
articulated with respect to federal law.
See Hale O Kaula Church
v. Maui Planning Comm’n, 229 F. Supp. 2d 1056, 1067 (D. Haw.
2002) (determining that quasi-judicial immunity applied under
Hawaii law, for reasons similar to those stated with respect to
federal law, to claims against members of Maui Planning
Commission and to hearing officer for Maui Planning Commission).
All claims against Individual Capacity Commissioners for damages
under state law are dismissed.
Because the court has determined that Individual
Capacity Commissioners are entitled to quasi-judicial immunity
59
with respect to Bridge’s claims seeking monetary relief under
state law, it need not consider Individual Capacity
Commissioners’ alternative argument that they are entitled to
immunity under section 26-35.5 of Hawaii Revised Statutes or via
a qualified privilege.
2.
Individuals Sued in Their Individual
Capacities Are Not Liable in Damages for
Takings.
While quasi-judicial immunity offers protection to
Individual Capacity Commissioners from all remaining claims for
monetary relief, the same protection is available on alternate
grounds with respect to the takings claims.
With respect to the takings alleged in Counts I, II,
and VIII, monetary relief is simply unavailable against
individuals sued in their individual capacities.
The very nature
of a taking is that a public entity is taking private property
for a public purpose, and must provide just compensation in
return.
This concept is inconsistent with the notion that
someone acting in an individual capacity has taken property or
could be personally liable for a taking.
By definition, the
taking is not by a private person for private purposes, and the
property does not belong to a private person who must accordingly
pay just compensation out of private funds.
Thus, in Freddy Nobriga Enterprises, Inc. v. State
Department of Hawaiian Home Lands, 129 Haw. 123, 295 P.3d 993
60
(App. 2013), the Hawaii Intermediate Court of Appeals noted that
the plaintiff made “no factual or legal argument . . . supporting
a ‘takings claim’ against [the defendants] in their individual
capacity and we find none.”
Id. at 131, 295 P.3d at 1001.
A number of federal courts, among them the Fourth and
Sixth Circuits, have also concluded that individual capacity
defendants are not liable for federal takings claims.
See
Langdon v. Swain, 29 F. App’x 171, 172 (4th Cir. 2002)
(“[T]akings actions sound against governmental entities rather
than individual state employees in their individual
capacities.”); Vicory v. Walton, 730 F.2d 466, 467 (6th Cir.
1984) (“Unlike a trespass or other property tort which may be
committed by either an individual under or not under color of law
or by a governmental entity, a ‘taking without just compensation’
in violation of the fifth amendment is an act or wrong committed
by a government body--a taking ‘for public use.’ . . . .
Plaintiff may not maintain a constitutional cause of action
against these defendants who neither have nor claim the eminent
domain power, nor any power similar to it.”); see also Katsaros
v. Serafino, No. Civ. 300CV288PCD, 2001 WL 789322, at *5 (D.
Conn. Feb. 28, 2001) (“Only governmental entities, and not
individuals, can be liable for takings violations.”).
In response to an inquiry by the court about whether
there was authority for the proposition that a person sued in his
61
or her individual capacity could be liable in money for a taking,
Bridge pointed to three cases.
None of those cases is
controlling.
The first case, Solida v. United States, No.
2:12-CV-1488-RCJ-VCF, 2013 WL 3677735, (D. Nev. July 11, 2013),
concluded that the plaintiff could maintain a Bivens action
against a defendant sued in an individual capacity because the
United States Supreme Court had not “explicitly prohibited” a
Bivens action for a takings clause violation.
See id. at *7.
The court’s conclusion is not accompanied by any analysis.
Based
solely on the absence of an explicit prohibition by the Supreme
Court, it ignores the prohibition found by some lower courts.
The second case, Asociacion De Subscripcion Conjunta
Del Seguro De Responsabilidad Obligatorio v. Flores Galarza, 484
F.3d 1 (1st Cir. 2007), involved an alleged taking of insurance
premiums and reserve funds.
The funds were withheld from a
claimant and used to address the cash-flow problems that the
Commonwealth of Puerto Rico was facing at the time.
In analyzing
for qualified immunity purposes the individual liability of
Puerto Rico’s Secretary of the Treasury for that alleged taking,
the First Circuit cited authorities discussing physical takings
of property, as opposed to regulatory takings or takings effected
by inverse condemnation or the imposition of unconstitutional
conditions.
See id. at 28.
There being no indication that the
62
individual had obtained any personal gain through the taking, the
First Circuit expressed concern about the individual-capacity
claim, noting, “We are troubled by the notion that the personalcapacity claim against Flores Galarza, by which the JUA seeks
enormous personal damages from him, is really a subterfuge for an
official-capacity suit that seeks payment from the Commonwealth
Treasury.”
Id. at 25.
The court nevertheless declined to forbid
an individual-capacity damage claim, leaving it to the plaintiff
to pursue an uncollectible judgment if it so chose, or to the
Commonwealth to indemnify the individual official, if it so
chose.
This court considers the rationale of the Fourth and
Sixth Circuits more persuasive.
The third case cited by Bridge, Spell v. Edwards, No.
Civ No. 12-796, 2013 WL 5232341, (E.D. La. Sept. 13, 2013),
merely relies on Flores Galarza.
See id. at *2.
This court concludes that monetary relief is not
available against persons sued in their individual capacities for
takings.
3.
Money Damages Are Not Available in Connection
with the Vested Rights Claim in Count IV.
Damages are also unavailable against Individual
Capacity Defendants with respect to Bridge’s claim for
deprivation of vested rights in Count IV for the same reasons
outlined with respect to Bridge’s equitable estoppel claim.
63
In
Allen, the Hawaii Supreme Court noted that vested rights and
equitable estoppel were “theoretically distinct,” but that
“courts across the country seem to reach the same results when
applying these defenses to identical factual situations.”
Haw. at 435, 571 P.2d at 329.
The Allen court went on to find
that damages were unavailable under both theories.
438, 571 P.2d at 331.
58
See id. at
Bridge may not maintain a vested rights
claim for damages under Hawaii law against the Individual
Capacity Defendants.
V.
CONCLUSION.
Defendants’ motion to dismiss, as revised by
Defendants, is granted.
This order leaves only the following
claims for adjudication: (1) the takings claims for just
compensation in Counts I, II, and VIII, to the extent asserted
against the Commission and Official Capacity Commissioners; and
(2) Count IV, to the extent seeking damages against the
Commission and Official Capacity Commissioners.9
This order makes it unnecessary for this court to
consider other issues raised by the parties, including but not
limited to the scope of sovereign immunity under state law.
9
As noted above, the court leaves this Count IV damage
claim pending pursuant to the parties’ agreement, notwithstanding
this court’s ruling that damages are not recoverable under Count
IV against Individual Capacity Commissioners.
64
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Bridge Aina Le’a, LLC v. State of Hawaii Land Use Commission, et al., Civ.
No. 11-00414 SOM/BMK; ORDER GRANTING REVISED MOTION TO DISMISS
65
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