Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission's Immunity For Reclassification

by Robert Thomas, InverseCondemnation, June 24, 2014 

Earlier, we posted the recording of the Ninth Circuit's recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff's allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.

Two days after arguments were submitted, the Ninth Circuit panel un-submitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this week, and which we previewed here).

We were not able to attend the Ninth's arguments in-person, but our colleague and friend Paul Schwind (who previewed the arguments in this post) did, and has this report for us.

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Guest Post: Ninth Circuit Oral Argument In Bridge Aina Lea: Pullman Abstention, Williamson County Ripeness, and Immunity

by Paul J. Schwind*

When we last reported on the federal side of this case in May 2014 (Bridge Aina Lea, LLC v. State of Hawaii Land Use Commission et al., 1:11-CV-00414-SOM-BMK (D. Haw., June 27, 2011)), U.S District Judge Mollway on March 30, 2012, had stayed further action in federal court regarding the monetary and injunctive relief sought for alleged due process, equal protection, and takings claims from the LUC reclassification ("downzoning") action, pending final resolution of the state court case. Judge Mollway also specifically refused to rule on whether individual LUC commissioners are entitled to absolute (quasi-judicial) immunity or qualified (absent malicious or improper purpose) immunity. After the parties cross-appealed (Bridge Aina Lea v. Kyle Chock et al., 12-15971 (9th Cir., April 25, 2012)), the Ninth Circuit scheduled oral argument at its Honolulu hearing room on June 10, 2014, and asked the parties for letter briefing by June 5 addressing the effect on this case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1984).

Accordingly, at oral argument, the primary issue before the Ninth Circuit panel (Judges William A. Fletcher, presiding, together with Sandra S. Ikuta and Andrew D. Hurwitz) was whether the LUC commissioners are immune from damages on Bridge Aina Lea’s federal law claims. Panel members also questioned the Court’s jurisdiction and authority to act at this time, given the pending decision by the Hawaii Supreme Court in the state side of the case.

Appellants’ Argument

In order to understand appellants’ (Chock et al., including the LUC) argument that the federal district court misapplied the “Pullman doctrine” in refusing to rule on the commissioners’ immunity from federal law damages claims (see Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941) (federal courts, when asked for the extraordinary remedy of injunction, will exercise sound discretion in the public interest to avoid needless friction with state policies)), it is first necessary to have some sense of what this doctrine means as applied in the Ninth Circuit.  In his principal brief at 11, appellants’ counsel (Deputy Attorney General William J. Wynhoff) cites to the following:

Pullman abstention is appropriate when (1) the case touches on a sensitive area of social policy upon which the federal courts ought not enter unless no alternative to its adjudication is open, (2) constitutional adjudication plainly can be avoided if a definite ruling on the state issue would terminate the controversy, and (3) the possible determinative issue of state law is uncertain.  Confederated Salish v. Simonich, 29 F.3d 1398, 1407 (9th Cir. 1994); accord, Cinema Arts, Inc. v. County of Clark, 722 F.2d 579, 580 (9th Cir.1983); Canton v. Spokane Sch. Dist., 498 F.2d 840, 845 (9th Cir.1974).

Accordingly, the propriety of the land use downzoning underlying this case may be a “sensitive area of social policy”, but the granting of immunity for commissioners’ acts (right or wrong) in their official (quasi-judicial immunity) and individual (qualified immunity) capacities is not, and need not, wait for a definitive state law ruling on the procedural and substantive land use issues, even if those state law issues are uncertain.

In oral argument, Mr. Wynhoff conceded that the commissioners might be liable for declaratory or injunctive relief, but – due to their quasi-judicial (absolute) immunity – not for damages on federal law claims.  He has been unable to find a case resolving the tension between Pullman (federal court abstention from state law issues) and federal law damage claims. But the only issue before the Ninth Circuit is whether the district court erred in failing to dismiss this case, and he therefore asked the Court to reach the question whether the individual LUC commissioners have personal immunity for their acts in downzoning appellee’s property.

As for Williamson County, its application in the Ninth Circuit is governed by MHC Financing Ltd. Partnership v. City of San Rafael, 714 F.3d 1118, 1130 (9th Cir. 2013), cert. denied, 134 S.Ct. 900 (2014):

Williamson County sets forth a two-prong test for ripeness for takings claims: first, an owner must obtain a final decision regarding how it will be allowed to develop its property, and second, a plaintiff must have sought compensation for the alleged taking through available state procedures. If a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.

Williamson County was a case in which a bank, which had taken over a bankrupt developer’s property after a county planning commission failed to grant approval for a project that did not conform to new, more stringent zoning requirements, sued in federal court for a taking without just compensation and denial of due process.  On appeal, the U.S. Supreme Court ruled that the bank’s taking claim was not ripe, because the bank (1) had not sought variances that could have rendered the county denial not final, and (2) had failed to use state procedures that could have provided it with just compensation.

In his letter brief at 7 and in oral argument, Mr. Wynhoff agreed that the second prong of Williamson County is potentially, but not actually, applicable to this case.  Hawaii has a procedure to seek just compensation for an alleged taking under Austin v. City and County of Honolulu, 840 F.2d 678, 681 (9th Cir. 1988), so that even if the LUC commissioners’ actions caused a taking (which they deny), Bridge Aina Lea’s right to just compensation cannot be violated.  It is less clear whether appellee’s substantive due process and equal protection claims arising from the alleged taking are sufficiently independent to avoid the Williamson County ripeness test, pursuant to Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543 (2005) (“if a government action is found to be impermissible — for instance because it . . . is so arbitrary as to violate due process — that is the end of the inquiry. No amount of compensation can authorize such action”). Nevertheless, Wynhoff argued, the court is not jurisdictionally barred and has discretion to decide this case on its merits, following Guggenheim v. City of Goleta, 638 F.3d 1111, 1117 (9th Cir. 2010):

In this case, we assume without deciding that the claim is ripe, and exercise our discretion not to impose the prudential requirement of exhaustion in state court. . . [W]e reject the Guggenheims' claim on the merits, so it would be a waste of the parties' and the courts' resources to bounce the case through more rounds of litigation.

Appellee’s Argument

In the fourth brief on cross appeal at 16-17, in his letter brief at 9, and to open his oral argument, appellee’s counsel (Bruce D. Voss) stated that Bridge Aina Lea filed a viable state law claim of land use law violation, and has been waiting nearly three years for the ability to claim actual monetary and injunctive relief in federal court. In support of this proposition, he cited to San Remo Hotel v. City and County of San Francisco, 545 U.S. 323, 346 (2005) (Williamson ripeness “does not preclude state courts from hearing simultaneously a plaintiff’s request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the Fifth Amendment of the Constitution”); and id., 545 U.S. at 347 (“State courts are fully competent to adjudicate constitutional challenges to local land-use decisions. Indeed, state courts undoubtedly have more experience than federal courts do in resolving the complex factual, technical, and legal questions related to zoning and land-use regulations”).

Meanwhile, Judge Mollway has imposed a stay on appellee’s federal law due process, equal protection, and takings claims. The Hawaii Supreme Court may take another three to six months to decide the land use issues in the state case after it hears oral argument on June 25, 2014.  That delay is prejudicial to appellee’s interests, but this Court (the Ninth Circuit) has jurisdiction of the immunity issues, and discretion to remand the case for a decision by Judge Mollway on the federal law claims. Mr. Voss continued that, in initiating the reclassification (“downzoning”) action under an Order to Show Cause, the LUC acted “legislatively” – and in fact arbitrarily and capriciously – to create “new rules”, thus waiving the commissioners’ quasi-judicial immunity. He conceded that although Pullman abstention applies to this case, there is no definitive Hawaii case law to resolve quasi-judicial immunity and temporary takings claims; therefore, this Court cannot direct the lower court how to resolve the immunity question.

During argument by both parties, the panel of judges frequently interjected questions to counsel and to each other regarding whether they should wait for the Hawaii Supreme Court to decide the state case, or attempt to resolve the state law questions before them; is the record below complete enough for a decision; could Bridge Aina Lea refile the case if it is dismissed; and why should this Court not wait for the State?

Ultimately, the panel withdrew the submission of this case pending the decision of the Hawaii Supreme Court (docket order filed June 12, 2014), with a request to counsel that the Ninth Circuit be advised within 14 days of issuance of that decision.

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*Voluntary inactive member of the Hawaii Bar.