# Appendix — Hawaii Housing Authority v. Midkiff

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0143%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1097

## Text

83-141

No. 83- Office-Supreme Court, U.S.
IN THE MH 28 195;
Supreme Court of the United Ng Am
OCTOBER TERM, 1983 CLERK
>
HAWAII HOUSING AUTHORITY, ef a/.,

Appellants,

—

FRANK E. MIDKIFF, ef a/.,

Appellees.

ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX TO THE JURISDICTIONAL STATEMENT

LAURENCE H. TRIBE

Counsel of Record

Special Deputy Attorney General
KATHLEEN M. SULLIVAN

Special Deputy Attorney General
1525 Massachusetts Avenue
Cambridge, Massachusetts 02138
(617) 495-1767

TANY S. HONG
Attorney General
MICHAEL A. LILLY
First Deputy Attorney General
DENNIS E. W. O’CONNOR State Capitol
JERROLD K. GUBEN Honolulu, Hawaii 96813
haya gta Counsel for the State Appellants
O’Connor & Marrack
24th Floor, Grosvenor Center
733 Bishop Street
Honolulu, Hawaii 98613

Counsel for Certain
Lessee-Association Appellants

sk

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

TABLE OF CONTENTS

PAGE

Opinion of the United States Court of
Appeals for the Ninth Circuit, dated
REDDER Be CD od caccctenvsdodsnd eves Al

Amended Memorandum Decision of the
United States District Court for the Dis-
trict of Hawaii, dated December 19,

Decision on Motion for Preliminary In-
junction of the United States District
Court for the District of Hawaii, dated
BEGG: BD, Peri an por ateueveadeueneeieaus A77

Judgment of the United States Court of
Appeals for the Ninth Circuit, dated June
Sly. RUUD. 6641 pide tons anaes A105

Order of the United States Court of Ap-
peals, for the Ninth Circuit Denying Re-
hearing and Rehearing En Banc, dated
FORD 855 FUND x canrickinniaddvivauans A106

Notice of Appeal to the United States
Supreme Court, filed in the United States
Court of Appeals for the Ninth Circuit
om Fue U5, GREE s snc ué nc Hove teateatee A107

Hawaii Revised Statutes, Chapter 516
(Residential Leaseholds)............... A109

1967 Hawaii Session Laws, Act 307 (in

Appendix I

Appendix J

Appendix K

Appendix L

PAGE

1975 Hawaii Session Laws, Act 184 (in
DP CPPCUUGbENES eee es eessrcecesccce Al44

ED Waves es ecdisewcscccescssccccces Al47

DUPE MERUGBGGubbasle tee pecceccccdos A152

Hawaii Revised Statutes, Chapter 101
(Eminent Domain) (in part)............ A158

Al

APPENDIX A
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Argued and Submitted Oct. 21, 1981
Decided March 28, 1983
No. 80-4368

aos

Frank E. MIDKIFF, Richard Lyman, Jr., Hung Wo Ching,
Matsuo Takabuki and Myron B. Thompson, Trustees of
the Kamehameha Schools/Bishop Estate,

Plaintiffs-Appellants,

—_—V.—

Paul A. TOM, Tony Taniguchi, Wilbert K. Eguchi, Wayne T.
Takahashi, Lawrence N.C. Ing, Nobuyoshi Tamura, An-
drew I.T. Chang, and David C. Slipher, Commissioners of
the Hawaii Housing Authority; Franklin Y.K. Sunn, Ex-
ecutive Director of the Hawaii Housing Authority; and
Hawaii Housing Authority,

Defendants-Appellees,

—and—

Wai-Kahala Tract “H” Association, Inc.; Halawa Hills Land-
sale Committee; Awakea Association; Alii Shores Commu-
nity Association; Enchanted Hills, Unit I; Portlock
Community Association (Maunalua Beach); Kokohead
Community Lease-Fee, Inc.; West Marina Community As-
sociation; Kalama Valley Community Association; Mauna-
lua Triangle-Koko Kai Community Association, Inc.;
Hahahione Valley Community Association, Inc.; Kamiloiki
Community Association; Lunalilo Marina Community As-
sociation; Mariners Ridge and Cove Fee/Lease Conversion

A2

Committee; Spinnaker Isle Association; Waialae Iki Com-
munity Association; Waiau Community Association; Ka-
hala Community Association, Inc.; Kahala Community
Fee Purchase Fund and Halawa Valley Estates Fee Conver-
sion Corporation,

Intervenors-Appellees.

a oe

Appeal from the United States District Court for the District
of Hawaii.

Before:
ALARCON, POOLE and FERGUSON,
Circuit Judges.

ALARCON, Circuit Judge:

The question presented by this case is whether a state may
take real property from a lessor and transfer title in fee simple
absolute to a lessee because of a shortage of land for fee simple
residential ownership.' We hold that such a taking violates the
federal constitution.

1 Federal district court jurisdiction of the case sub judice is based
upon 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights) & 2201
(declaratory relief) and 42 U.S.C. § 1983 (civil action for deprivation of
rights). The issue of whether the district court should abstain from the
exercise of its jurisdiction was raised during the proceedings below. The
district court proceeded to the merits and thus implicitly exercised its
discretion to decline abstention. See Midkiff v. Tom, 483 F.Supp. 62
(D.Haw. 1979).

The general rule is that a federal court must decide the cases properly
before it; abstention from the exercise of jurisdiction is the exception to the

A3

On February 19, 1979, the Trustees of the Kamehameha
Schools/Bishop Estate [Bishop Estate] filed a declaratory relief

rule. Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Shamrock Dev. Co. v.
City of Concord, 656 F.2d 1380, 1385 (9th Cir. 1981). “[T]here is, of course,
no doctrine requiring abstention merely because resolution of a federal
question may result in the overturning of state policy.” Zablocki v. Redhail,
434 U.S. 374, 379-80 n. 5, 98 S.Ct. 673, 677-678 n. 5, 54 L.Ed.2d 618 (1978).
This court will reverse the district court on the issue of abstention only where
there has been an abuse of discretion. Shamrock Dev. Co., 656 F.2d at 1385.

There are several bases upon which a federal court may abstain from
exercising its jurisdiction. See International Bhd. of Elec. Workers, Local
Union No. 1245 v. Public Serv. Comm'n, 614 F.2d 206, 211-12 (9th Cir.
1980) [/nternational Bhd|. A federal court may decide to abstain, for
example, where a federal constitutional issue could be “mooted or presented
in a different posture by a state court determination of pertinent state law.”
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct.
1060, 1063, 3 L.Ed.2d 1163 (1959) (citing inter alia Railroad Comm’n vy.
Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941)).
This court has held that abstention based upon this doctrine (Pullman
abstention) is required if three tests are met:

(1) The complaint “touches a sensitive area of social policy upon
which the federal courts ought not to enter unless no alternative to
its adjudication is open.”

(2) “Such constitutional adjudication plainly can be avoided if a
definitive ruling on the state issue would terminate the controversy.”

(3) The possibility determinative issue of state law is doubtful.

Canton y. Spokane School Dist. # 81, 498 F.2d 840, 845 (9h Cir. 1974)
(citing Pullman, 312 U.S. at 498-99, 61 S.Ct. at 644-645) (footnote omitted).
A state’s system of eminent domain “is intimately involved with sovereign
prerogative,” Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S.
25, 28 (1959) (upholding district court’s exercise of discretion resulting in
abstention), however, this alone is insufficient to require abstention. Frank
Mashuda Co., 360 U.S. at 191-92, 79 S.Ct. at 1064-1065; see Zablocki, 434
U.S. at 379-80 n. 5, 98 S.Ct. at 677-678 n. 5 (1978); Pue v. Sillas, 632 F.2d
74, 78 (9th Cir. 1980). It is especially crucial that there be “an uncertain issue
of state law.” /d. at 78. The Hawaii Land Reform Act is perfectly clear as to
the key issue of whether the condemnation system set forth in Hawaii
Rev.Stat. ch. 516 is for a public use. The st.t'« unambiguously states: “The
use of the power to eminent domain [under the Hawaii Land Reform Act]

A4

action alleging that the Hawaii Land Reform Act, Hawaii
Rev.Stat. ch. 516, was unconstitutional. The Commissioners
and the Executive Director of the Hawaii Housing Authority
and the Hawaii Housing Authority were named as defendants

. is for a public use and purpose.” Hawaii Rev.Stat. § 516-83(a)(12).
Moreover, there is no fair construction of this provision that would moot the
federal issue of whether the condemnation is for a public use. “Hence, the
naked question, uncomplicated by an unresolved state law, is whether the
Act on its face is unconstitutional.” Wisconsin v. Constantineau, 400 U.S.
433, 91 S.Ct. 507, S11, 27 L.Ed.2d 515 (1971). Abstention by the district
court thus would have been inappropriate.

Federal courts may also decline to exercise their jurisdiction where the
dispute involves “an essentially local issue arising out of a complicated state
regulatory scheme. . . .” /nternational Bhd., 614 F.2d at 211. See Burford
v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The Ninth
Circuit has limited abstention under this principle (Burford abstention) to
cases where: (1) the state has concentrated suits involving the local issue in a
particular court; and (2) the federal issues are not easily separable from state
law issues with which the state courts may have special competence. See
International Bhd., 614 F.2d at 211. Hawaii has not concentrated challenges
to its condemnation system in any court. The federal issue of whether the
takings provided for by the state legislature is for a public use is easily
separable from any state law issues especially since the statute is clear.
Burford abstention is thus inapplicable.

Finally, abstention by a federal district court is appropriate under the
principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971). Younger and its progeny counsel federal court abstention when there
is a pending or ongoing state proceeding, Moore v. Sims, 442 U.S. 415, 423,
99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); L.H. v. Jamieson, 643 F.2d
1351, 1352 (9th Cir. 1981), in which the federal claims could be competently
adjudicated. See Moore, 442 U.S. at 425, 99 S.Ct. at 2378. The Supreme
Court recently reiterated that abstention under Younger principle is limited to
federal cases which “seek to enjoin state judicial proceedings. . . .” Fair
Assessment in Real Estate Ass'n Inc. v. McNary, 454 U.S. 100, 102 S.Ct.
177, 185, 70 L.Ed.2d 271 (1981). See Zabiocki, 434 U.S. at 379-80 n. 5, 98
S.Ct. at 677-678 n. 5. Plaintiffs in this action have not sought to enjoin any
State judicial proceedings. We are informed by counsel on both sides of the
abstention issue that, as of the time this action was filed, no condemnation
actions had been filed in the state courts. This fact is undisputed. Moreover,
even though such suits may now be pending in the state courts, the
“principles of comity and federalism do ngp-require that a federal court
abandon jurisdiction it has properly acquired simply because a similar suit is
later filed in a state court.” Town of Lockport, N.Y. v. Citizens for
Community Action at the Local Level, Inc., 430 U.S. 259, 264 n. 8; 97 S.Ct.
1047, 1051 n. 8, 51 L.Ed.2d 313 (1977) (emphasis added). The district court
acted correctly in declining to abstain from the exercise of its jurisdiction.

AS

{original defendants and intervenors hereinafter Appellees].
The district court declared that the challenged statute before us
was constitutional. Midkiff v. Tom, 483 F.Supp. 62, 70
(D.Haw. 1979). This appeal followed.

The Hawaii Land Reform Act permits certain lessees in
possession of land in that state to acquire title in fee simple
absolute through eminent domain proceedings. This legislation
was enacted after a determination by the Hawaii Legislature
that land ownership is concentrated in a few persons who have
chosen to lease their property rather than to sell it. The
legislature found that this practice has resulted in a shortage of
fee simple land and an artificial inflation of residential land
values in the state.

We must decide whether the Federal Constitution permits a
state to take the private property of A and transfer its owner-
ship to B for his private use and benefit. It is our view that it
was the intention of the framers of the Constitution and the
fifth amendment that this form of majoritarian tyranny should
not occur. The protection provided by the fifth amendment has
been extended to the states by reason of the fourteenth amend-
ment. Missouri Pacific Railway v. Nebraska, 164 U.S. 403,
417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896); Fallbrook Irriga-
tion District v. Bradley, 164 U.S. 112, 158, 17 S.Ct. 56, 63, 41
L.Ed. 369 (1896).

As originally drafted, the Federal Constitution contained no
reference to the protection of private property interests. It is
quite clear, however, that prior to the founding of this nation,
it was well established that the government could not take
private property except for the use of the public. Hugo Gro-
tius, one of the first commentators to define eminent domain,
articulated a “public advantage” as a necessary prerequisite to
a taking by the state. 2 H. Grotius, De Jure Belli Ac Pacis 385
(F. Kelly trans. London 1925) {ist ed. Amsterdam 1646). In
1758, E. de Vattel wrote that the exercise of the power of
eminent domain had to be for the “public welfare.” E. 4

A6

Vattel, The Law of Nations, 96 (C. Fenwick trans. 1916) (Ist
ed. 1758). S. Pufendorf stated that a government taking must
be for the “necessities of the state.” De Jure Naturae et
Gentium 1285 (C. & W. Oldfather trans. London 1934) (Ist ed.
1688).

The failure to spell out a precise guarantee for the protection
of life, liberty, and property interests in the body of the United
States Constitution was deliberate. James Madison, considered
by historians to be the Father of the Constitution,’ explained
the reasons for this conscious omission as follows:

My own opinion has always been in favor of a bill of
rights. . . . At the same time I have never thought the
omission a material defect, nor been anxious to supply it
even by subsequent amendment, for any other reason
than that it is anxiously desired by others. . . . I have not
viewed it in an important light—1. because .. . the
rights in question are reserved by the. manner in which the
federal powers are granted. 2. because there is great
reason to fear that a positive declaration of some of the
most essential rights could not be obtained in the requisite
latitude. . . . 3. because the limited powers of the fed-
eral Government and the jealousy of the subordinate
Governments, afford a security which has not existed in
the case of the State Goverrments, and exists in no other.
4. because experience proves the inefficacy of a bill of
rights on those occasions when its controul is miost
needed. ...

Letter from James Madison to Thomas Jefferson (Oct. 17,
1788), reprinted in 5 The Writings of James Madison 271-72
(G. Hunt ed. 1904).

_ Madison was, however, keenly mindful of the need to create
a form of government which would protect each person’s

2 United States Constitutional Sequicentennial Comm'n, History of
the Formation of the Union Under the Constitution 122 (1941).

A7

property interests. He stated this concern eloquently at the
constitutional convention. “In future times a great majority of
the people will not only be without landed, but any other sort
of, property. These [may] . . . combine under the influence of
their common situation; in which case, the rights of property &
the public liberty, [will not be secure in their hands]. . . .” 2
The Records of the Federal Convention of 1787 203-04 (M.
Farrand ed. 1911) (footnotes omitted).’

In 1787 Madison expressed his views to Thomas Jefferson
concerning the need to protect minority rights from the acts of
a majority that might seek to remedy unequal property distri-
bution through legislative action:

[N]o society ever did or can consist of [a] . . . homoge-
neous . . . mass of Citizens. . . . In all civilized so-
cieties, distinctions are various and unavoidable. A
distinction of property results from that very protection
which a free Government gives to unequal faculties of
acquiring it. There will be rich and poor; creditors and
debtors; a landed interest, a monied interest, a mercantile
interest, a manufacturing interest. . . . [These distinc-
tions will produce dissention and faction.] However erro-
neous or ridiculous these grounds of dissention and
faction may appear to the enlightened Statesman or the
benevolent philosopher, the bulk of mankind . . . will
continue to view them in a different light. It remains then
to be enquired whether a majority having any common
interest, or feeling any common passion, will find suffi-
cient motives to restrain them from oppressing the minor-
ity.

Letter from James Madison to Thomas Jefferson (Oct. 14,
1787), reprinted in 5 The Writings of James Madison 29.

3 Madison also articulated this concept earlier during the constitu-
tional convention: “The lesson we are to draw . . . is that where majority
are united by a common sentiment and have an opportunity, the rights of the
minor party become insecure.” | The Records of the Federal Convention of
1787, 136 (M. Farrand ed. 1911).

A8

Madison’s distrust of government according to the will of a
majority of the electorate was based on first hand observation:

In Virginia I have seen the bill of rights violated in every
instance where it has been opposed to a popular current.
Notwithstanding the explicit provision contained in that
instrument for the rights of Conscience, it is well known
that a religious establishment [would] have taken place in
that State, if the Legislative majority had found as they
expected, a majority of the people in favor of the
measure. . . . Wherever the real power in Government
lies, there is the danger of oppression. In our Govern-
ments the real power lies in the majority of the Commu-
nity, and the invasion of private rights is chiefly to be
apprehended, not from acts of Government contrary to
the sense of its constituents, but from acts in which the
Government is the mere instrument of the major number
of the Constituents.

Letter from James Madison to Thomas Jefferson (Oct. 17,
1788), reprinted in id. at 272.

In the Federalist papers Madison argued forcefully that a
republican form of government was essential to preserve
minority rights.

Complaints are every where heard. . . that our govern-
ments are too unstable, that the public good is disre-
garded in the conflicts of rival parties; and that measures
are too often decided not according to the rules of justice
and the rights of the minor party, but by the superior
force of an interested and overbearing majority. . . .

. . . [Factions develop whereby] a number of citizens,
whether amounting to a majority or minority of the
whole, . . . are united and actuated by some common
impulse of passion, or of interest, adverse to the rights of
other citizens, or to the permanent and aggregate interests
of the community.

e o * € 6

. . . [T]he most common and durable source of fac-

tions, has been the various and unequal distribution of

A9

property. Those who hold, and those who are without
property, have ever formed distinct interests in so-
ciety. . . . A landed interest, a manufacturing interest, a
mercantile interest, a moneyed interest, with many lesser
interests, grow up of necessity in civilized nations, and
divide them into different classes, actuated by different
sentiments and views. The regulation of these various and
interfering interests forms the principal task of modern
legislation. .. .
sd s * s *

. . . When a majority is included in a faction, the form
of popular government . . . enables it to sacrifice to its
ruling passion or interest, both the public good and the
rights of other citizens. . . .

s 2 = e s

. . . [In a pure democracy a] common passion or
interest will, in almost every case, be felt by a majority of
the whole; . . . there is nothing to check the inducements
to sacrifice the weaker party or an obnoxious individ-
ae

A republic . . . promises the cure for which we are
seeking. ...
The Federalist No. 10, at 104-09 (J. Madison) (Hamilton ed.
1868) (emphasis added).

Alexander Hamilton expressed similar apprehensions for the
rights of property owners in his contributions to the Federalist.
He wrote: “ ‘[A]dditional security to republican government,
to liberty, and to property,’ ” is to be derived from the adoption
of the Constitution. Jd. No. 85, at 639 (A. Hamilton); and,
“IA strong executive is essential] to the protection of property
against those irregular and high-handed combinations, which
sometimes interrupt the ordinary course of justice. . . .” Jd.
No. 70, at 522 (A. Hamilton).

Initially, Madison did not publicly support a bill of rights.
Prior to the ratification of the Constitution he “opposed all
previous alterations as calculated to throw the states into
dangerous contentions, and to furnish secret enemies of the

Al0

Union with an opportunity of promoting its dissolution.”
Letter from James Madison to George Eve (Jan. 2, 1789),
reprinted in 5 Writings of James Madison 319-21 n. 1. Once the
Constitution had been ratified by eleven states and “a very
great majority of the people of America,” he felt that
“[clircumstances are now changed.” /d. Madison reversed his
position and supported the amendments as “providing adai-
tional guards in favor of liberty.” Jd. On June 8, 1789,
Madison presented a draft of twelve proposed amendments to
the first session of Congress. Stoebuck, A General Theory of
Eminent Domain, 47 Wash.L.Rev. 553, 595 (1972). Included
was the following eminent domain clause: “No person shall be

. obliged to relinguish his property, where it may be
necessary for public use, without a just compensation.” |
Annals of Congress 434 (J. Gales ed. 1789). Stoebuck, A
General Theory of Eminent Domain, 47 Wash.L.Rev. 553, 595
(1972).

If we look to the language of the Federal Constitution, and
interpret the protection afforded property inte,ests contained
therein according to the intent of those who irafted it, it
becomes unmistakably clear that the Hawaii Land Reform Act
is unconstitutional. As anticipated by Madison, the Hawaii
Legislature has become the instrument by which private prop-
erty held by a minority of the persons within that state is to be
redistributed to appease the desires of a landless majority to
own residential land. The Federal Constitution and the fifth
and fourteenth amendments were adopted with the express
purpose of invalidating the taking of the private property from
one person for the private and exclusive enjoyment by another.

IV

We are told by Appellees that court interpretations of the
Federal Constitution support the validity of the Hawaii Land
Reform Act. Our analysis of the cited cases follows. Although
the scope of the power of eminent domain has been only
vaguely and inconsistently stated, see Berger, The Public Use
Requirement in Eminent Domain, 57 Or.L.Rev. 203, 204-05

All

(1978), there is one instance where there is general agreement
that eminent domain must not be used. The sovereign may not
take the private property of A and transfer it to B solely for
B’s private use and benefit. Missouri Pacific Railway Co., 164
U.S. at 417, 17 S.Ct. at 135; B. Schwartz, A Commentary on
the Constitution of the United States, The Rights of Property
(pt. 2) 241 (1965); see also, Calder v. Bull, 3 U.S. (3 Dall.) 386,
388, 1 L.Ed. 648 (1798) (Chase, J., seriatum opinion) (“[A]
law that takes property from A. and gives it to B. .. . is
against all reason and justice. . . .”). None of the authorities
cited by appellees has declared such an attempt constitutional.

Vv

The cases upholding takings for a public use teach us that we
must look at each case on an ad hoc basis: “[W]hat is a public
use frequently and largely depends upon the facts and circum-
stances surrounding the particular subject matter in regard to
which the character of the use is questioned.” Fallbrook
Irrigation District, 164 U.S. at 159-60, 17 S.Ct. at 63. There
are several recurring facts and circumstances, however, that are
present in the cases in which appellate courts have found a
proper exercise of the power of eminent domain.

Courts have found that a taking has been for a public use
where:

A. The taking will result in condemnation of property for
an historically accepted public use.

B. The taking will result in a change in the use of the land.

C. The taking will result in a change in possession of the
land.

D. The taking will result in a transfer of ownership from a
private party to a governmental entity.

E. The taking will result in a de minimis condemnation
necessary to facilitate the development of nearby land. None
of these facts nor circumstances are present in the Hawaii Land
Reform Act.

Al2

A

Following the establishment of the United States Constitu-
tion, there were two major kinds of activities for which the
power of eminent domain was undisputedly properly em-
ployed: mill acts and road building. See Berger, supra at 205.
General mill acts allowed any owner of land upon a nonnaviga-
ble stream to build and maintain mills for manufacturing
purposes. See Head v. Amoskeag Manufacturing Co., 113
U.S. 9, 20-21, 5 S.Ct. 441, 445-446, 28 L.Ed. 889 (1885). In
Otis Co. v. Ludlow Manufacturing Co., 201 U.S. 140, 26 S.Ct.
353, 50 L.Ed. 696 (1906), the plaintiff challenged a general mill
act enacted by Massachusetts. The Supreme Court summarily
disposed of any general objection to the act on the basis that it
constituted a taking for private use violative of the fourteenth
amendment and noted that: “Such acts have been in force in
Massachusetts ever since an act of 1714. . . . The practice
sanctioned by them would seem from the recitals of that act to
have been still older.” Jd. at 151, 26 S.Ct. at 354.

The Supreme Court similarly recognized a long-standing
tradition of the use of eminent domain for the purpose of
building roads in Rindge Co. v. County of Los Angeles, 262
U.S, 700, 706, 43 S.Ct. 689, 692, 67 L.Ed. 1186 (1923). In
Rindge, plaintiffs objected to the taking of its property for two
proposed highways that were to be built entirely on its private
property. Only one of the roads, the “main road,” was to be
connected to a public highway and only at one end; the other
road, was to branch off the main road. /d. at 703, 43 S.Ct. at
691. The Court upheld the condemnation as being for a public
use: “That a taking of property for a highway is a taking for
public use has been universally recognized, from time imme-
morial.” Jd. at 706, 43 S.Ct. at 692.

This court found condemnation of private land for road
building was a public use in Guam vy. Moylan, 407 F.2d 567,
567-68 (9th Cir. 1969). The rationale, however, was based upon
an analogy to redevelopment cases. See id. at 568.

Where the purpose of a taking has been historically deemed
to be for the public it will be upheld by the courts.

Al3

The taking of private property has been upheld where there
is a change in the use of the land. Often the change in the use is
obvious and direct. Examples include the condemnation of
land to build roads where no previous reads exist as in Rindge,
262 U.S. at 702-03, 43 S.Ct. at 691 or to build a railroad spur
where no previous track exists. Hairston v. Danville & Western
Railway, 208 U.S. 598, 600-01, 28 S.Ct. 331, 332-333, 52 L.Ed.
637 (1908). Similarly upheld are condemnations for the pur-
pose of developing a power plant, Mr. Vernon-Woodberry
Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S.
30, 32, 36 S.Ct. 234, 236, 60 L.Ed. 507 (1916) or developing a
recreational area, United States ex rel. TVA v. Welch, 327 U.S.
546, 550, 66 S.Ct. 715, 717, 90 L.Ed. 843 (1946) (condemna-
tion by TVA of private property for transfer to the National
Park Service as part of the Great Smokey Mountains National
Park); United States v. 416.81 Acres of Land, 514 F.2d 627,
629 (7th Cir., 1975) (undeveloped lands condemned for the
Indiana Dunes National Lakeshore). Changes in the use of
condemned property also may be upheld where the change is of
a less direct nature. One such example involves the redevelop-
ment of a community. E.g., Berman v. Parker, 348 U.S. 26, 75
S.Ct. 98, 99 L.Ed. 27 (1954) (discussed infra, § VI(A)).

Puerto Rico v. Eastern Sugar Associates, 156 F.2d 316 (lst
Cir.), cert. denied, 329 U.S. 772, 67 S.Ct. 190, 91 L.Ed. 664
(1946) is an example of a case that involves both changes of a
direct and indirect nature. The major agricultural holdings of a
landowner were to be condemned for, inter alia, three purposes
which would result in a change in the use of the property: “(1)
in small parcels to individual agregados [squatters] for the
erection of their dwellings, (2) in somewhat larger parcels to
individual farmers for subsistence farms and (3) in large
parcels by lease to expert farmers, agronomists, or other
qualified persons . . . for the operation of ‘proportional-
profit’ farms. . . .” Jd. at 319. Thus agricultural land was to
be taken in some instances for building residences and in other
instances for smaller farms, either upon which an individual

Al4

could subsist or upon which experts would operate propor-
tional profit farms.

In each of the foregoing cases land was condemned for the
purpose of putting it to a different use.

Cc

Another factual circumstance common to many constitu-
tional takings is that the party who will possess the land after
condemnation is not the same party who possesses it prior to
the condemnation. The majority of the cases discussed above
include examples of such a transfer of possession. One exam-
ple of an instance where the possessor was the same before and
after condemnation can be found in two cases where the
government condemned a reversionary interest it held in leased
land. Old Dominion Land Co. v. United States, 269 U.S. 55,
66, 46 S.Ct. 39, 40, 70 L.Ed. 162 (1925) (federal government
can properly condemn reversionary interest in land it was
leasing for possible military purpose); United States v. Certain
Parcels of Land, 141 F.Supp. 300, 307 (D.Wyo. 1956) (con-
demnation of reversionary interest in land leased by govern-
ment upon which government housing had been built is for a
public use), aff'd sub nom. Arp v. United States, 244 F.2d 571
(10th Cir.), cert. denied, 355 U.S. 826, 78 S.Ct. 34, 2 L.Ed.2d
40 (1957). It is important to note, however, that in both of
these cases, the government, not a private party, was the
beneficiary of the condemnation.

D

Where the beneficiary of the condemnation is a governmen-
tal entity there is a strong indication that the taking is for a
public use:

[Where the land is taken by the government itself, there
is not much ground to fear any abuse of the [eminent
domain] power. . . . [When the power is delegated to a
private corporation] the presumption that the intended
use for which the corporation proposes to take the land is

AlS

public [when declared to be so by the legislature], is not so
strong as where the government intends to use the land
itself.

United States v. Gettysburg Electric Railway, 160 U.S. 668,
680, 16 S.Ct. 427, 429, 40 L.Ed. 576 (1896). In two cases where
the government was the beneficiary of condemned property,
the government was a lessor seeking condemnation of the fee
simple interest. In Old Dominion Land Company the govern-
ment leased land for military purposes. 269 U.S. at 63, 46
S.Ct. at 39. When the lessor refused to renew the leases, the
government initiated condemnation proceedings after an offer
to purchase the land was refused. /d. The Court upheld the
taking as a public use. /d. at 66, 46 S.Ct. at 40. Similarly, in
Certain Parcels of Land, the government leased land upon
which it built and maintained a housing project. 141 F.Supp. at
303. The owners of the land refused to renew the lease and the
government sought to condemn the fee simple title. /d. The
court found acquisition of the fee did not violate the public use
limitation in violation of the owners’ constitutional rights. /d.
at 307.

Eastern Sugar Associates, 156 F.2d at 319, also involved a
situation where the government could have remained in posses-
sion of the condemned land after condemnation. One of the
acts that was challenged permitted the government to purchase
lands and establish an organization to plant sugar cane for
development of the sugar and liquor industries. Jd. This was
upheld as a taking for a public use. See id. at 324.

E

Finally, courts have upheld the condemnation of land where
the taking is de minimis and for the purpose of facilitating the
development of nearby land.

In Strickley v. Highland Boy Gold Mining Co., 200 U.S.
527, 26 S.Ct. 301, 50 L.Ed. 581 (1906), a mining company
sought to condemn land for a right of way. The purpose was to
erect an aerial bucket line that would result in the placement of
four movable towers on the condemnees’ land. /d. at 529-30,

Al6

26 S.Ct. at 302. The line would transport ore from the mines to
the railway station two miles away. /d. at 529, 26 S.Ct. at 3021.
Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085
(1905), involved an attempt to condemn a portion of a
neighbor’s land by enlarging a ditch to irrigate the condem-
nor’s arid land to produce crops. /d. at 362, 25 S.Ct. at 676.
The public use was upheld in both of these cases. In each case,
the extent of the taking was minimal. The towers in Strickley
were not permanent and the condemnor was under an obliga-
tion “to move the towers as often as reasonably required by the
owners” in order for them to mine their land. 200 U.S. at 530,
26 S.Ct. at 302. Clark involved taking only enough land to
widen by twelve inches the existing irrigation ditch which
measured eighteen inches wide, twelve inches deep. 198 U.S. at
363, 25 S.Ct. at 676-677. Thus, both condemnations involved a
minimal taking of land that resulted in an increased productiv-
ity of nearby land.

Vi
A

The thrust of the Appellees contentions concerning the
public use issue is that this court’s inquiry must be restricted to
whether the legislature, in enacting the Hawaii Land Reform
Act, was acting within the parameters of its police powers. For
example, Appellee Kahala Community Association, Inc. and
Kahala Community Association Fee Purchase Fund assert the
following:

Berman [348 U.S. at 26, 75 S.Ct. at 98] could not be
clearer. If the legislative object is within its authority, the
use of eminent domain is permissible, since that power
serves simply as a means to the end. It follows that if it is
constitutional to pursue an objective by police power
regulations, eminent domain may be used.

Brief for Appellees Kahala Community Association, Inc. &
Kahala Community Association Fee Purchase Fund at 23.

Al?

We disagree. Berman does not paint with so broad a brush.
Berman involved the condemnation of buildings in a slum area
for the purpose of building a new community. Congress had
made a deiermination that the slum area was harmful to the
health, safety, morals, and welfare of the public. /d. at 28, 75
S.Ct. at 100. It declared that condemnations for redevelop-
ment pursuant to the redevelopment plan were for a public use.
Id. at 29, 75 S.Ct. at 100-101. Buildings that were old,
decayed, and unsafe were to be razed and replaced by new
buildings. New homes, schools, churches, parks, streets and
shopping centers were to be built. See id. at 34-35, 75 S.Ct. at
103-104. The court focused on the planned condemnations on
an area basis rather than on a structure-by-structure basis. /d.
at 34, 75 S.Ct. at 103. Thus, it was not important whether a
single building represented a safety or health hazard or was
unsightly. The important fact was “to redesign the whole area
sO as to eliminate the conditions that cause slums—the over-
crowding of dwellings, the lack of parks, the lack of adequate
streets and alleys, the absence of recreational areas, the lack of
light and air, the presence of outmoded street patterns.” /d.
This transformation from slum to healthy thriving community
represents a change in the use of the land.

By contrast, the Hawaii Land Keform Act will result in no
change in use of the property. The property itself is currently
used for residential purposes. After condemnation it will be
used for residential purposes. Appellees argue that there is a
change in use in that the land is now used for investment
purposes; subsequent to condemnation it will only be used for
residential purposes and the owner of the newly created fee
simple land will treat the property differently because he
knows he can stay there as long as he chooses. These alleged
changes in use, however, are simply different forms of private
use.

The redevelopment in Berman authorized the transfer to
public agencies of land “to be devoted to such public purposes
as streets, utilities, recreational facilities, and schools.” Jd. at
30, 75 S.Ct. at 101. The remaining land was to be redeveioped

Al8

preferably by private enterprise. /d. Thus, it was possible that
certain property owners would be permitted to repurchase their
properties. /d. at 34, 75 S.Ct. at 103. The key in Berman is the
intermediate step in which the property was transferred from
the private owner to the government for a public purpose, /.e.,
the redevelopment of the area. In the case before us there is no
such intermediate step in which the government holds the
property for the accomplishment of a public purpose. The
lessee simply retains possession of residential property
throughout the condemnation process until he receives fee
simple title. Berman does not authorize such a scheme.
Nothing in Berman permits the lessee of property to take
ownership of that property from the owner involuntarily
through condemnation proceedings. Nothing in Berman would
provide, as does the Hawaii Land Reform Act, the lessee of
condemned property with greater rights to that property than
the owner.

It is against this factual background that we must read its
sweeping language: “Once the object is within the authority of
Congress, the right to realize it through the exercise of eminent
domain is clear.” /d. at 33, 75 S.Ct. at 103. The Supreme Court
also stated in Berman that: “Subject to specific constitutional
limitations, when the legislature has spoken, the public interest
has been declared in terms well-nigh conclusive.” /d. at 32, 75
S.Ct. at 102 (emphasis added). We read this language as
requiring the judiciary to scrutinize carefully any legislative
attempt to take private property so as to determine if it is in
violation of any constitutional provision. The fifth amendment
is specific: “No person shall. . . be deprived of life, liberty, or
property, without due process of law; nor shall private prop-
erty be taken for public use, without just compensation.” U.S.
Const. Amend. V; see also, cases cited § VI(B) infra (role of
judiciary in determining public use). To hold, as the district
court below did, that the public use limitation is subsumed
under a “police power/due process analysis,” Midkiff, 483
F.Supp. at 67, would be to ignore the explicit language of the
constitution and to disregard the fifth amendment protections
granted to citizens of the states under the fourteenth amend-

Al9

ment. See, e.g., Missouri Pacific Railway, 164 U.S. at 417, 17
S.Ct. at 135. Such a result is untenable. Indeed, the Supreme
Court has held that merely because the legislature has the
power to regulate private property does not allow it to take
that property without just compensation in violation of the
fifth amendment. Kaiser Aetna v. United States, 444 U.S. 164,
179-80, 100 S.Ct. 383, 392-393, 62 L.Ed.2d 332 (1979). It
follows that because the state legislature has the power to
regulate private property does not allow it to take that property
for a nonpublic use in violation of the fourteenth amendment.

B

Appellees, citing Old Dominion Land Co., 269 U.S. at 66,
46 S.Ct. at 40, also argue that review by this court is limited to
the question of whether the determination of the existence of
public use by the Hawaiian Legislature, Hawaii Rev.Stat.
§ 516-83(a)(12)* “is shown to involve an impossibility.” Appel-
lees direct our attention to the following cases as well: Berman,
348 U.S. at 32, 75 S.Ct. at 102 (citing T7V.A., 327 U.S. at 552,
66 S.Ct. at 718; Old Dominion Land Co., 269 U.S. at 66, 46
S.Ct. at 40); Gettysburg Electric Railway Co., 160 U.S. at 680,
16 S.Ct. at 429; Southern Pacific Land Co. v. United States,
367 F.2d 161, 162 (9th Cir. 1966), cert. denied, 386 U.S. 1030,
87 S.Ct. 1485, 18 L.Ed.2d 591 (1967). The cases cited by
Appellees, however, involved the review of a congressional
determination that there was a oublic use, not the review of a
state legislative determination. In 77V.A., 327 U.S. at 552, 66
S.Ct. at 718 the Supreme Court stated that review of a
congressional public use declaration is not the same as the

4 Hawaii Rev.Stat. § 516-83(a)(12) states:

The use of the power to eminent domain to condemn the fee simple
title to residential land and the payment of just compensation
therefor for the purpose of making the fee simple title thereto and
the use thereof available for acquisition by people who are lessees
under long-term leases of such land and on which such land their
homes are situated is for a public use and purpose.

(emphasis added).

A20

review of a state legislative determination: “But whatever may
be the scope of the judicial power to determine what is a
‘public use’ in Fourteenth Amendment controversies, . .
when Congress has spoken on this subject ‘Its decision is
entitled to deference until it is shown to involve an impossibil-
ity.” ” (quoting Old Dominion Land Co., 269 U.S. at 66, 46
S.Ct. at 40 (emphasis added)). Where a state legislative deter-
mination is involved: “[i]t is well established that .. . the
question what is a public use is a judicial one.” Cincinnati v.
Vester, 281 U.S. 439, 446, 50 S.Ct. 360, 362, 74 L.Ed. 950
(1930); This matter involves a review, under the fourteenth
amendment, of a state legislative determination. This court
must properly make the ultimate determination of whether the
use is public.

Madisonville Traction Co. v. Saint Bernard Mining Co., 196
U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462 (1905) cited by one of the
appellees for the proposition that courts should pay deference
to state legislative determinations, is particularly appropriate
here. The Court is explicit: “ ‘It is erroneous to suppose that
the legislature is beyond the control of the courts in exercising
the power of eminent domain . . . . For if the use be not
public . . . the legislature cannot authorize the taking of
private property against the will of the owner, notwithstanding
compensation may be required.’” Jd. at 252, 25 S.Ct. at 256
(quoting Tracy v. Elizabethtown, Lexington & Big Sandy
Railroad, 80 Ky. 259, 265 (1882)). Moreover, were Congress to
enact a statutory provision that would allow condemnation of
A’s private property for transfer to B, sciely for B’s private
use, this court would necessarily find such action contrary to
the fifth amendment whether or not congress declared such
proceedings to be for a public purpose. See, e.g., Colchico v.
United States, 286 F.Supp. 507, 509 (N.D. Cal. 1968) (court to
review wh.cuner federal taking for a public use); United States
v. 23.9129 Acres of Land, 192 F.Supp. 101, 102 (N.D. Cal.
1961) (“This court need not, and will not, stand idly by and
allow [federal] administrative officiais to take private property
arbitrarily, capriciously, in bad faith, or for what is essentially
a private purpose.” (emphasis added)).

A2l

Vil

When we strip away the statutory rationalizations contained
in the Hawaii Land Reform Act, we see a naked attempt on the
part of the state of Hawaii to take the private property of A
and transfer it to B solely for B’s private use and benefit.

The founders of this nation sought to give constitutional
protection to minority rights. They wisely foresaw that at-
tempts would be made by the states to take away the private
property rights of the landed minority. Our Federal Constitu-
tion and the Bill of Rights were designed to prevent such
abuses by the majority. That Constitution now compels us to
find that the Hawaii Land Reform Act violates the public use
limitation of the fifth and fourteenth amendments. Those
provisions of the Hawaii Reform Act that provide for the
condemnation of certain residential property are facially un-
constitutional.

The decision of the district court is REVERSED and RE-
MANDED for further proceedings consistent with the views
expressed in this opinion.

co

+

POOLE, Circuit Judge, concurring.

I concur in Judge Alarcon’s careful and well-researched
opinion and in his conclusion that the Hawaii Land Reform
Act violates the Fifth and the Fourteenth Amendments to the
Constitution of the United States. I recognize that another
member of this court, whose opinion is of value and entitled to
thoughtful consideration, expresses a contrary view.

Nonetheless an independent review convinces me that in
light of all considerations of logic, of the compelling authority
of precedent, and of the Constitution itself, the Hawaii Land
Reform Act is unconstitutional. It is my further opinion that
the United States District Court properly undertook to decide
that issue but reached a manifestly erroneous conclusion in
upholding the Act.

A22

But however firm these conclusions may appear to me, I am
concerned that we not seem to have, as charged in our
brother’s scold, ‘‘cavalierly’’ ventured to decide these legal
issues; asked the ‘‘wrong’’ questions and gotten ‘‘wrong”’
answers; or foresworn that ‘‘judicial modesty’’ which ought to
have warned that we are not in position (as presumably are the
Hawaiian legislature and courts) ‘‘to judge the effectiveness
and constitutionality of any attempt at reform.’’ I therefore
think it useful to set forth in calmness and reason such of my
Own analysis as may indicate why the dissent is mistaken. For
it is incorrect that we should have abstained; and it is incorrect
that there was not squarely presented to a court of the United
States an unavoidable constitutional issue which this court was
bound to meet and which, I submit, we now have properly
decided.

1. Abstention.

First of all, we have decided this constitutional issue because
it is before us and as a court of the United States we are
obligated to hear and decide those issues over which we have
jurisdiction. Colorado River Water Conservation District V.
United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47
L.Ed.2d 483 (1976). It is that obligation, not pride or immo-
desty, that makes federal abstention ‘‘the exception, not the
rule.’” Id. See also Knudsen Corp. v. Nevada State Dairy
Commission, 676 F.2d 374, 376-78 (9th Cir. 1982); Turf
Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 819-21 (9th
Cir.), cert. denied, _._ U.S. ___, 102 S.Ct. 2308, 73 L.Ed.2d
1308 (1982). Abstention is only appropriate, ‘‘ ‘in the excep-
tional circumstances where the order to the parties to repair to
the State court would clearly serve an important countervailing
interest.” ’’ Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244
(quoting County of Allegheny v. Frank Mashuda Co., 360
U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163
(1959)). Since the decision to abstain involves the district
court’s discretionary exercise of its equitable powers, it is
reviewed under the abuse of discretion standard. Turf Para-

A235

dise, 670 F.2d at 819. It would have been an abuse of
discretion had the district court abstained.

A. Pullman Abstension

Four general categories of abstention have been generally
recognized. The first, Pullman abstention, is appropriate
where a federal constitutional issue may be avoided or pre-
sented in a different light by resolution of an issue under state
law. Colorado River, 424 U.S. at 814, 96 S.Ct. at 1244-1245;
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496,
61 S.Ct. 643, 85 L.Ed. 971 (1941); Knudsen Corp., 676 F.2d at
377. For example, a state court might interpret the provisions
of a challenged statute so as to moot the federal constitutional
issue raised. See, e.g., Red Bluff Drive-in, Inc. v. Vance, 648
F.2d 1020 (Sth Cir. 1981), cert. denied, 455 U.S. 913, 102 S.Ct.
1264, 71 L.Ed.2d 453 (1982). Here, however, as Judge Alarcon
points out, the Hawaii Land Reform Act specifically provides
that its provisions are intended to serve ‘‘a public use and
purpose.’” Hawaii Rev.Stat. § 516-83(a)(12). Therefore, state
courts of Hawaii could not interpret the statute to avoid the
‘*public use’’ issue and hence federal review is not thereby
spared.

Pullman abstention may also be appropriate where a state
court may find that the challenged statute violates the state’s
own constitution. But such abstention is limited to application
of a specialized state constitutional provision with no clear
counterpart in the federal constitution. See Sanita Fe Land
Improvement Co. v. City of Chula Vista, 596 F.2d 838, 840-41
n. 3 (9th Cir. 1979); Pue v. Sillas, 632 F.2d 74, 80-81 (9th Cir.
1980); C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure § 4242 at 462-63 (1978). The Hawaii Constitutional
Provision concerning eminent domain imposes the same
**public use’’ standard as required under the Fifth and Four-
teenth Amendment due process clauses of the United States
Constitution. See Hawaii Const. art. 1, § 20'; Missouri Pacific

1 Section 20 provides:

Private property shall not be taken or damaged for public use
without just compensation.

A24

Railway v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41
L.Ed. 489 (1896). Therefore Pullman abstention to permit
application of this ‘‘mirror image’’ state constitutional provi-
sion would not be appropriate.’ See, e.g., Examining Board of
Engineers, Architects, and Surveyors v. Flores de Otero, 426
U.S. 572, 598, 96 S.Ct. 2264, 2279, 49 L.Ed.2d 65 (1976)
(abstention not appropriate under state constitutional provi-
sion similar to federal constitution equal protection clause);
| Pue v. Sillas, 632 F.2d at 81.

B. Burford Abstention

Abstention may also be appropriate under the standards
originally set out in Burford v. Sun Oil Co., 319 U.S. 315, 63
S.Ct. 1098, 87 L.Ed. 1424 (1943), to avoid ‘‘federal intrusion
into matters which are largely of local concern and which are
within the special competence of local courts.’’ /nternational
Brotherhood of Electrical Workers, Local Union No. 1245 v.
Public Service Commission, 614 F.2d 206, 212 n. 1 (9th Cir.
1980). In considering Burford abstention this court has ex-
amined whether the state channels into a single court lawsuits
challenging the state agency’s actions, whether the federal
issues are inextricably linked to the state law issues, and
whether federal adjudication would interfere with the state’s
efforts to maintain a consistent policy. See Knudsen Corp.,
676 F.2d at 377; International Brotherhood of Electrical
Workers, 614 F.2d at 211.

Hawaii has not created specialized courts to hear cases
arising under the Act and the federal due process issue is not
linked to complex state law issues. Moreover, we have recently
specifically refused to apply Burford abstention to cases in-
volving zoning and land use questions, even though, as appel-
lees suggest, issues regarding land use and regulation are

2 The dissent implies, but does not endeavor to support, the view that
somehow the courts of Hawaii might chance upon a construction of the Land
Reform Act under circumstances not relying upon familiar concepts of
“‘public use.’’ Since this is only sheer speculation, it need not detain our
thoughts.

A25

special local concerns. See /niernational Brotherhood, 614
F.2d at 211; tsthmus Landowners Association v. California,
601 F.2d 10.7 (9th Cir. 1979) (challenge to coastal zoning
regulations); Rancho Palos Verdes Corp. v. City of Laguna
Beach, 547 F.2d 1092 (9th Cir. 1976) (zoning challenge); Santa
Fe Land Improvement Company v. City of Chula Vista, 596
F.2d 838 (9th Cir. 1979). Thus, Burford abstention is not
appropriate in this case.’

C. Prudential Abstention—Colorado River

The third ground for abstention, recognized in Colorado
River Water Conservation District v. United States, 424 U.S.
800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), stems from princi-

3 The principal case upon which appellees rely, Louisiana Power &
Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058
(1959), is generally classified as within Burford abstention. See Colorado
River, 424 U.S. at 814, 96 S.Ct. at 1244-1245. In Thibodaux the Court
upheld a lower court decision to abstain in an eminent domain action
removed to federal court, referring to the ‘‘special nature’’ of eminent
domain as ‘intimately involved with sovereign prerogative.’’ 360 U.S. at 28,
79 S.Ct. at 1073.

Yet Thibodaux should not be read as un endorsement of abstention in all
proceedings involving eminent domain. On the day it decided Thibodaux, the
Court held that abstention was not appropriate in another eminent domain
case, County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct.
1060, 3 L.Ed.2d 1163 (1959). The Court specifically stated that merely
because ‘‘a case concerns a state’s power of eminent domain no more
justifies abstention than the fact that it involves any other issue related to
sovereignty."’ 360 U.S. at 191-92, 79 S.Ct. at 1064.

Although the two opinions are not easily reconciled, see C. Wright, A.
Miller and E. Cooper, Federal Practice and Procedure § 4241 at 441 (1978),
the Supreme Court has subsequently indicated that the principal significance
of Thibodaux is its holding that a district court may find it necessary to
abstain where the case involves ‘difficult questions of state law bearing on
policy problems of substantial public import whose importance transcends
the result in the case then at bar."’ Colorado River, 424 U.S. at 814, 96 S.Ct.
at 1244. In particular, the state law issue in Thibodaux was whether a city
vould exercise the power of eminent domain under Louisiana law—an issue,
as Colorado River suggests, which transcended the importance of the case
itself. Here there is no such independent state law issue.

A26

ples of ‘* ‘wise judicial adminstration.’ ’’ 424 U.S. at 817, 96
S.Ct. at 1246 (quoting Kerotest Manufacturing Co. v. C-O-
Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219,
221, 96 L.Ed. 200 (1952)). A district court may abstain where
“*exceptiona’ circumstances * * * indicate that concurrent
jurisdiction by state and federal courts is likely to cause
piecemeal litigation, waste of judicial resources, inconvenience
to the parties, and conflicting results.’’ Tovar v. Billmeyer, 609
F.2d 129i, 1293 (9th Cir. 1979). However, given the ‘‘unflag-
ging obligation’’ of the federal courts to exercise their jurisdic-
tion, the applicability of this doctrine is even more limited than
the circumstances normally justifying abstention. Colorado
River, 424 U.S. at 818, 96 S.Ct. at 1246-1247. Thus in
Colorado River the Court found that ‘‘exceptional circvin-
stances’’ existed to dismiss the federal action in favor of a
pending state action because of the Congressional policy set
out in the McCarren Amendment to avoid piecemeal adjudica-
tion of water rights—a policy reflected in traditional rules
governing the adjudication of property matters, and also
because state law had established a single continuous proceed-
ing for the adjudication of Colorado river water disputes. No
comparable factors here favor adjudication in state court, and
therefore the heavy burden necessary to justify abstention has
not been met.

D. Younger Abstention

A fourth area for abstention is based on the principles of
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971). Younger held abstention appropriate where the federal
claimant sought to restrain ongoing state criminal judicial
proceedings. The principle has subsequently been extended
beyond the criminal context to state proceedings which involve
‘important state interests.’’ Middlesex County Ethics Com-
mittee v. Garden State Bar Association, __.. U.S. ___, 102
S.Ct. 2515, 73 L.Ed.2d 116 (1982). Thus, the Supreme Court
has specifically approved abstention to avoid interference with
civil contempt proceedings initiated by a state court, Juidice v.

A27

Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977);
attachment proceedings brought by a state to recover welfare
payments procured by fraud, Trainor v. Hernandez, 431 U.S.
434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); a custody proceed-
ing in which the state sought to recover custody of abused
children, Moore v. Sims, 442 U.S. 415, 99 S.Ct. 237i, 60
L.Ed.2d 994 (1979); and state disciplinary proceedings for
members of the bar, Middlesex, 102 S.Ct. at 2523 (‘‘The
importance of the state interest in the pending state jurisdiction
proceeding * * * calls Younger abstention into play’’); and id.
at 2524 (‘‘No proceedings have occurred on the merits and
therefore no federal proceedings on the merits will be termi-
nated by application of Younger principles’’). Since the federal
claimant could raise the constitutional claims in the state
proceedings, the interests of comity and federalism precluded
federal interference in the state proceedings. See Hart &
Wechsler, The Federal Courts and the Federal System 280-82
(Supp. 1981). :

Although the Supreme Court has not addressed the issue, in
Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975), the
Seventh Circuit has held that a state’s interest in eminent
domain proceedings constitutes so important a governmenial
interest that Younger abstention is appropriate. That court
reasoned that since the federal constitutional claims could be
raised in the ongoing state court proceedings it was appropriate
for the federal court to abstain ‘‘so as not to interfere with
state sovereignty.’ 528 F.2d at 200.

Ahrensfeld, however, relied only in part on Younger’s ab-
stention doctrine. The court also found that ‘‘other circum-
stances’’ were present which made Pullman abstention
appropriate because of an unresolved issue regarding state
valuation standards.* 528 F.2d at 199-200. But as indicated

4 The project involved was the taking for the construction of an
Athletic and Convention Center. The federal plaintiffs challenged public
purpose and also that such a taking was improper under the applicable
Illinois Eminent Domain Act. The court said: ‘‘Since ‘the state court's
interpretation of the [statute] may obviate any need to consider [its] validity

P

A28

above, Pullman abstention is not appropriate here. Also, as
already said, this circuit has concluded that a state’s interest in
land use and regulation does not automatically justify absten-
tion under the Burford doctrine, which, like Younger, contem-
plates deference where there is an ongoing state judicial
proceeding. See Middlesex County Ethics Committee, supra;
Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 678
n. 5, 54 L.Ed.2d 618 (1978). Such ongoing action must begin
**before any proceedings of substance on the merits have taken
place in the federal court.’’ Hicks v. Miranda, 422 U.S. 332,
349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975); Middlesex,
102 S.Ct. at 2524. Unless such an action is underway the
interests expressed in Younger of avoiding duplicative litiga-
tion and interference with the state judicial system are not
applicable. And proceeding in the federal action in such
circumstances is not to be regarded as reflecting a lack of
confidence in the state court’s adjudication of constitutional
issues because ‘‘the relevant principles of equity, comity, and
federalism have little force in the absence of a pending state
proceeding.’’ Steffel v. Thompson, 415 U.S. 452, 462, 94S.Ct.
1209, 1217, 39 L.Ed.2d 505 (1974).

Appellants in this case filed their district court complaint in
February, 1979. At that time the only extant proceedings at the
state level were public hearings being conducted by the Hawaii
Housing Authority as required under the Hawaii Land Reform
Act before instituting condemnation of certain of appeliant’s
residential tracts. See Hawaii Rev. Stat. § 516-22.”

under the Federal Constitution, the federal court should hold its hand, lest it
render a constitutional decision unnecessarily.’ ’’ 528 F.2d at 200 (citing City
of Meridian v. Southern Beil Tel. & Tei. Co., 358 U.S. 639, 641, 79 S.Ct.
455, 457, 3 L.Ed.2d 562 (1959), and Martin v. Creasy, 360 U.S. 219, 224, 79
S.Ct. 1034, 1037, 3 L.Ed.2d 1186 (1959). (Citations omitted.)

5 Section 516-22 provides:

Designation of leased fee interest in all or part of developm. ni tract
Sor acquisition. The authority may designate all or a portion of a
development tract for acquisition and acquire leased fee interests in
residential houselots in such development tract, through the exercise

A29

The dissent refers to four state court condemnation suits
which at various times were pending in the state court. All were
settled without trial. Three were terminated before the district
court ruled on the summary judgment motions before it. The
fourth remained pending after the final judgment was entered
here, but it too was settled. The dissent misreads the law in its
premise that the mere filing of a condemnation action would
proprio vigore bring into play the requirement of abstention.
As Justice Brennan stated in Steffel v. Thompson, 415 U.S.
452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505
(1974):

of the power of eminent domain or by purchase under the threat of
emineni domain after twenty-five or more lessees or the lessees of
more than fifty percent of the residential lease lots within the
development tract, whichever number is the lesser, have applied to
the authority to purchase the leased fee interest in their residential
ieasehold lots pursuant to section 516-33 and if, after due notice
and public hearing, * * * the authority finds that the acquisition of
the leased fee interest in residential houselots in all or part of the
tract through exercise of the power of eminent domain or by
purchase under threat of eminent domain and the disposition
thereof, as provided in this part will effectuate the public purposes
of this chapter.

Younger abstention was, as conténded by the dissent, not triggered by the
Housing Authority hearings provided by the statute since the Supreme Court
has indicated that abstention is limited to judicial and not administrative
proceedings. See Fair Assessment in Real Estate Association v. McNary, 454
U.S. 100, 112-13, 102 S.Ct. 177, 184, 70 L.Ed.2d 271 (1981). Cf. Patsy v.
Board of Regents, _. U.S. ____, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)
(exhaustion of state administrative remedies not required under section
1983).

In Middlesex, 102 S.Ct. at 2522, the Court concluded that the district court
properly abstained to prevent interference with disciplinary proceedings of a
local District Ethics Committee appointed by the New Jersey Supreme Court.
However, there the Court specifically found that under New Jersey law the
proceedings were ‘‘judicial in nature."’ In particular, the Court noted that
the local committees are considered the arm of the New Jersey Supreme
Court and that filing a complaint with the committee ‘‘is in effect a filing
with the Supreme Court."’

In the present case, the public hearings before the Hawaii Housing
Authority bear none of the attributes of a judicial proceeding such as that
found in Middlesex.

A30

‘*The rule in federal cases is that an actual controversy
must be extant at all stages of review, not merely at the
time the complaint is filed. [Citations omitted.]

In May, 1979, the district court heard appellants’ motion for
a preliminary injunction. It found that on the merits appellants
were unlikely to prevail on their general due process challenge,
but that the statute’s mandatory arbitration and valuation
provisions were facially unconstitutional. Accordingly, the
court held that the state administrative condemnation proceed-
ings could proceed but it enjoined the operation of the objec-
tionable arbitration and valuation provisions.° The Hawaii
Housing Authority did not actually file the first of its eminent
domain lawsuits in state court against appellants until Septem-
ber, 1979, shortly after the parties in district court had begun
filing motions for summary judgment.

Thus by the time the state proceedings were instituted in this
case the federal action was well beyond ‘‘the embryonic
stage.’’ Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct.
2561, 45 L.Ed.2d 648 (1975). Under ,hose circumstances ab-
stention was not appropriate. See id. (Younger abstention not
applicable where district court issued preliminary injunction
prior to institution of state criminal action); Housworth vy.
Glisson, 485 F.Supp. 29 (N.D.Ga. 1978) (hearing for injunc-
tive relief on plaintiff's likelihood of success qualifies as
proceedings of substance on the meriis).

Moreover, it appears tha the state attorney general never
raised the Younger issue at any time before the district court.’
Although the parties may not waive the applicability of
Pullman abstention, see e.g., Santa Fe Land Improvement
Co., 596 F.2d at 840, the Supreme Court has specifically
indicated that the Younger doctrine need not be considered if
not invoked by the state:

6 Following the district court's ruling, the Hawaii Legislature
amended Section 516 to remove the mandatory arbitration provision and to
amend the valuation provisions.

7 In fact, no party addressed the abstention issue until the court raised
the subject at oral argument.

A3l

If the state voluntarily chooses to submit to a federal
forum, principles of comity do not demand that the
federal court force the case back into the State’s own
system.

Ohio Bureau of Employment Services v. Hodory, 431 U.S.
471, 480, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 513 (1977). Accord-
ingly, in submitting the issue of the statute’s constitutionality
to the district court in this case, it appears that the Hawaii
attorney general effectively waived his claim for Younger
abstention. See Universal Amusement Co. v. Vance, 587 F.2d
159, 163 n. 5 (Sth Cir.1978), aff'd, 445 U.S. 308, 100 S.Ct.
1156, 63 L.Ed.2d 413 (1980); Evansville Book Mart, Inc. v.
City of Indianapolis, 477 F.Supp. 128, 130 (S.D.Ind. 1979);
Wright, Miller & Cooper, Federal Practice and Procedure
§ 4252, at 547-48 (1978). We need not, however, rely solely on
waiver, for independently it is clear that Younger does not
apply.

In sum, none of the circumstances recognized by the federal
courts as calling for abstention are present here. Therefore the
district court did not abuse its discretion in proceeding to
decide the constitutional issue before it.

Il. Public Use

The Hawaii Land Reform Act, Part Il, authorizes eminent
domain proceedings for the purpose of transferring from the
fee owners to existing lessees the fee simple title to single
family residential lots held under long term ground leases.
Haw.Rev. Stat. §§ 516-21 through 45. The act applies to
residential lots of not more than 2 acres located in development
tracts of not less than 5 acres and held under leases for terms
of twenty years or more. Haw.Rev. Stat. § 516-1(2), (5), (11).

Condemnation proceedings are actually initiated on petition
of lessees desiring to obtain the fee title to their leased prop-
erty. The statute requires that the application be on behalf of
the lessees of 25 lots or 50% of the lots in a development,
whichever is less. Haw.Rev.Stat. § 516-22.

A32

While the statute permits the state to appropriate funds and
issue bonds for the purpose of implementing the statute, it
appears that (except for administrative overhead) the state uses
no public monies to acquire property under the statute. The
condemnation award and incidental costs of condemnation are
paid by the private lessee acquiring a given property.
Haw.Rev.Stat. §§ 516-30, -33, -33.5.

Under the statute, the Hawaii Housing Authority may elect
to condemn only those lots which lessees have applied to
purchase. Haw.Rev.Stat. § 516-22. While the Housing Author-
ity is required to find that the acquisition “will effectuate the
public purposes” of the statute, it need not find existence of a
shortage of fee simple property in the county in which a
condemned lot is located. Compare 167 Haw.Sess.Laws, Act
307 § 11 and Haw.Sess.Laws, Act 184 § 2(6) with 1976
Haw.Sess.Laws, Act 242 § 2 and Haw.Rev.Stat. § 516-22.

In addition to the condemnation provisions, the Hawaii
statute also provides new safeguards to lessees of residential
properties who continue under long term leases.
Haw.Rev.Stat., Part III. Rights of Lessees, 9 516-61 through
70. Among these are rent control and guarantees that such
lessees may sell or assign their leasehold interesis, and may
cure default, this presumably easing the structures of the
landlord-tenant rigid relationships.

But no restrictions are placed by the Act on the use or
alienation by a lessee-turned-feeholder of his property interesi.
If the new owner elects to let out to a new tenant under a
long-term lease, that tenant does not receive protections of
Part III. The new feeholder may therefore turn around and sell
that property subject to a long-term ground lease in which he
now holds a reversionary interest, thereby continuing the very
cycle and effectively frustrating the avowed purpose of increas-
ing the incidence of fee simple residential properties in Hawaii.
Because the property is no longer part of a minimum five-acre
tract, the lessee-turned-lessor’s property is not subject to dis-
feasance by operation of the eminent domain scheme under
which the former tenant, now a landlord of a long-term lease,

A33

acquired the interest. See Haw.Rev.Stat. § 516-1(5). Al-
ternatively, of course, the new feeowner may elect to retain and
live on his land as before, or may sell or lease a partial or entire
interest therein, just as prior to the taking he and his former
landlord had such options according to their respective hold-
ings.

Thus the statute permits, but neither requires nor contem-
plates, a change in the use of the land. It merely provides a
procedure for the involuntary transfer of title in the affected
property from the disfavored lessor to the now advantaged
lessee. Appellants argue that a condemnation scheme which
results in change neither in use nor in possession, and whose
sole effect is to transfer title from A (the lessor) to B (the
lessee) does not constitute a taking for a public purpose, and so
violates the fourteenth amendment. Judge Alarcon agrees, and
I concur.

The taking by a State of the private property of one
person or corporation, without the owner’s consent, for
the private use of another, is not due process of law and is
a violation of the Fourteenth Article of Amendment of
the Constitution of the United States.

Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417, 17
S.Ct. 130, 135, 41 L.Ed. 489 (1896). “[OJne person’s property
may not be taken for the benefit of another_private person
without a justifying public purpose, even though compensation
be paid.” Thompson v. Consolidated Gas Utilities Corp. , 300
U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510 (1937) (citing
Hairston v. Danville & Western Railway Co., 208 U.S. 598,
605, 28 S.Ct. 331, 334, 52 L.Ed. 637 (1908); Rindge Co. v.
County of Los Angeles, 262 U.S. 700, 705, 43 S.Ct. 689, 692,
67 L.Ed. 1186 (1923); Cincinnati y. Vester, 281 U.S. 439, 446,
449, 50 S.Ct. 360, 362, 363, 74 L.Ed. 950 (1930). In my view,
the Hawaii statute accomplishes precisely this invalid result,
for if it does not constitute a transfer “for the private use of
another,” that term can have no meaning.

The legislature has set forth a number of findings in its
attempt to clothe with the trappings of “public use” what is no

A34

more than a transfer for the private use of another. See e.g.,
Haw.Rev.Stat. § 516-83. Determining what constitutes a
public use for fourteenth amendment due process examination
of eminent domain proceedings, however, is a justiciable ques-
tion ultimately to be determined by the court, and not the
legislature. Thus, while a legislative determination of public
use is entitled to considerable deference, it is not binding on
this court. Hairston v. Danville & Western Railway, 208 U.S.
598, 606, 28 S.Ct. 331, 334, 52 L.Ed. 637 (1908); United States
ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546,
551-52, 66 S.Ct. 715, 717-718, 90 L.Ed. 843 (1946); Cincinnati
v. Vester, 281 U.S. 439, 446, 50 S.Ct. 360, 362, 74 L.Ed. 950
(1930); 2A J. Sackman & P. Rohan, Nichols’ The Law of
Eminent Domain, § 7.4 (1981).

It is true that “public use” is not synonymous with “use by
the public,” and that a state may condemn property to be sold
or leased to individuals as Judge Alarcon has explained, citing
inter alia, Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99
L.Ed. 27 (1954); Strickley v. Highland Boy Gold Mining Co.,
200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581 (1906); Clark v.
Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085 (1905);
Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 17 S.Ct.
56, 41 L.Ed. 369 (1896); Puerto Ricd*y. Eastern Sugar Associ-
ates, 156 F.2d 316 (lst Cir.), cert. denied 329 U.S. 772, 67 S.Ct.
190, 91 L.Ed. 664 (1946). But the private benefit must be an
incidental one, and not the dominant purpose of the taking.
Adams v. Housing Authority, 60 So.2d 663 (Fla. 1952); Bay-
col, Inc. v. Downtown Development Authority, 315 So.2d 451
(Fla. 1975).

{E]Jminent domain cannot be employed to take private
property for a predominately private use; it is, rather, the
means provided by the constitution for an assertion of the
public interest and is predicated upo”: the proposition that
the private property sought is fur a necessary public use.
It is this public nature of the need and necessity involved
that constitutes the justification for the taking of private
property, and without which proper purpose the private

A35

property of our citizens cannot be confiscated, for the
private ownership and possession of property was one of
the great rights preserved in our constitution and for
which our forefathers fought and died; it must be jeal-
ously preserved within the reasonable limits prescribed by
law.

Id. at 455 (footnotes omitted).

In determining public use, the court may consider extrinsic
facts and examine the statute as a whole to “discover the
dominant purpose of the taking.” 2A J. Sackman & P. Rohan,
Nichols’ The Law of Eminent Domain § 7.4[{1]. “In short, the
constitutional protection against the taking of public property
for private use cannot be evaded by any colorable declarations
that the use is public however formally and officially made.”
Id.

Upon examination of the statute and the evidence of record,
I conclude that the Hawaii Land Reform Act’s eminent do-
main provision cannot be saved as an exercise of police power.
It is beyond doubt that legislation need not be wise, nor the
best means for fulfilling relevant social and economic objec-
tives. Massachusetts Board of Retirement v. Murgia, 427 U.S.
307, 317, 96 S.Ct. 2562, 2568, 2569, 49 L.Ed.2d 520 (1976);
Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162,
25 L.Ed.2d 491 (1970). However, when as here the drastic
effects of a statute contrast so starkly with its professed goals,
leaving in shadow the nexus of reasonable relationship to those
goals, one may question whether a public purpose in fact
exists.

The Hawaii Land Reform Act proclaims its purpose to be
the alleviation of the shortage of fee simple residential land in
Hawaii. Yet, as set forth above (see page 13, lines 23-26), the
legislature has amended the statute to delete a requirement that
the Housing Authority, to whom is committed the power and
decision to take, first find a shortage of fee simple housing in
areas in which acquisitions under the statute are to be made.

The legislature has determined that the concentration of
residential lands in the hands of a few holders who choose to

A36

lease under long term leases has caused shortage and has
resulted in an inflation of land values. In fact, the statute itself
is so structured that it can only aggravate this shortage and
resultant inflation of land values. The Hawaii Circuit Court
has found as fact that in late years the large landholders have
made. residential homesites available, albeit through the tradi-
tional leasehold arrangements. Midkiff v. Amemiya, Civ.No.
47103 (Haw. Ist Cir.) (Findings of Fact).

But those problems with the Act, while telling of its nature,
could not alone condemn it entirely. What does infect it with
unconstitutionality is that it authorizes an agency of the state,
upon the application -of tenant, to divest his landlord of the
latter’s entire property and to convey it to the erstwhile tenant
in fee for the sole purpose of constituting that tenant as the
owner. The statute does not accomplish this transformation
merely incidentally en route to the effectuation of other,
different, presumably more urgent objectives; nor is it that in
its unreconstituted form, the present right of freeholding
threatens, interferes with, delimits, pollutes or offends against
the commonweal. The divestiture is single-minded and patent
of purpose: it strips the owner of the fee and vests the fee in
the tenant. Otherwise, there is not an iota of change. Not a
stick, stone, blade of grass, or flake of paint is altered; the use
continues precisely as it was before; the awesome mechanism
of taking becomes functus officio in the instant of its exercise;
its only service is to sever ownership from A and bestow the
same on B.

Indeed a unique and drastic analogue of “eminent domain”
is created by this legislation; but that characterization would
not alone be cause to strike it down. Indeed the purported
justification is that it responds to a perceived need; but so also
have many legislative enactments since December 15, 1791—
the ratification date of the “Bill of Rights”—proclaimed their
aim to attend outstanding needs, yet failed in passing constitu-
tional muster. The problem which this Act cannot overcome is
not its novelty or boldness or philosophical drift or internal
deficiencies. The problem is in the bar of the Fifth Amendment

A37

which reads in simple words: “[NJor shall private property be
taken for public use, without just compensation.”

It is not enough that a “just” price be paid when the public
(the state) seeks to invade the right of lawful private owner-
ship: the use for which the taking is made must itself be for a
public purpose. It is not a public purpose to take the property
of one person in order that it may become the private property
of another. It is said that “outsiders” may have a problem “in
comprehending the constitutionality” of this legislation. (Dis-
sent, page 808.) A commentator, quoted in extenso by the
dissent, id., has written that one factor which a reviewing court
might consider, “if only subconsciously, is the current political
reality that in much of the world land reform is essential if
democratic forms of government are to emerge or to prevail.”
That writer’s thesis is that elsewhere “redistribution of the
land” is taken for granted, and that it would be anomalous for
“this government” to insist on land reform elsewhere if “its
own Constitution prevents similar reforms in the American
states.”

However interesting a commentary on comparative interna-
tional polity, that analogy and that rationale are both inappo-
site in the face of the organic restraints which our Constitution
was intended and is held to impose upon governmental author-
ity. We cannot foresee what the future may hold, and unborn
generations may yet witness triumph of the right to such
“redistribution” of the property of others. But before that
Huxleyan advent, there will h4ve to come some change in
Amendment V, with a corresponding disfavor of the principle,
known to us not later than Magna Carta, that one’s freehold
may be taken only “by lawful judgment of his peers, or by the
law of the land.”*

8 “No freeman shall be taken, or imprisoned, or be disseised of his
freehold, or liberties, or free customs, or be outlawed, or exiled, or any
otherwise destroyed, now will we go upon him, nor send against him, save by
lawful judgment of his peers, or by the law of the land. We will not sell, nor
deny, nor delay to any man either justice or right.” Magna Carta (1225), Cap.
XXIX, Pound and Plucknett, Readings on the History and System of the
Common Law, 3d ed., page 180.

A38

The legislature has found:

Due to such shortage of fee simple residential land and
such artificial inflation of residential land values, the
people of the State have been deprived of a choice to own
or take a lease of the land on which their homes are
situated and have been required instead to accept long
term leases of such land which contain terms and condi-
tions that are financially disadvantageous, that restrict
their freedom to fully enjoy such lard and that are
weighted heavily in favor of the few landowners of such
land... .

Haw.Rev.Stat. § 516-83(3).’ In fact, however, as the Circuit
Court also found, on Oahu, the most populous Island with the
most acute housing shortage, “there is only a 10 percent
difference in the price between fee simple properties and
comparable leasehold properties.” Midkiff v. Amemiya, supra
(Findings of Fact). The point is not that housing shortages do
not exist in the Islands; it is that shortages of similar kind and
degree exist in other of the 50 states, and so do constitutional
limitations.

The thrust of the statute, therefore, is not nearly so much
the providing of residential housing where it may not reasona-
bly be had; it aims and objectives are to leave the residential
supply as it exists, but to shift the fee from present owners to
their lessees. And this in fact is all that the statute does.

In the Act before us the state legislature has simply decided
that it prefers B’s ownership of the land to A’s, and the vesting
of B with ownership of property heretofore lawfully held by A
constitutes the statute’s only substantive change. When, as
here, the only variable presented is whether A or B holds title
to the land, the public purpose vanishes. See Thompson v.

9 While the legislature finds a shortage of fee simple residential
property, it is significant that there is a surplus of condominiums on the
islands. See Midkiff v. Amemiya (Findings of Fact), supra.

A39

Consolidated Gas Utilities Corp., 300 U.S. at 80, 5” S.Ct. at
376,"

I conclude therefore that the taking authorizet by the
Hawaii Land Reform Act is not a taking “by the law of the
land” and is therefore invalid under the Fifth and Fourteenth
Amendments to the Constitution of the United States.

aol

FERGUSON, Circuit Judge, dissenting:

The majority cavalierly decides that the legislature of Hawaii
is forbidden by the federal constitution to carry out its pro-
gram of residential land reform. In so doing, the majority has
decided, wrongly, #’° sue that neither this court nor the
district court shoulc ave reached in the first place. The
majority has substituted its opinion for the careful judgment
of the Hawaii state courts, and the Hawaii legislature, in “a
sensitive area of social policy upon which the federal courts
ought not to enter unless no alternative to its adjudication is
open.” Canton v. Spokane School Dist. # 81, 498 F.2d 840, 845
(9h Cir. 1974), citing Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496, 498, 61 S.Ct. 643, 644, 85 L.Ed.
971 (1941). The majority has interfered with a state legisla-
ture’s exercise of a power which is “an inherent attribute of
sovereignty,” County of San Mateo v. Coburn, 130 Cal. 631,
634, 63 P. 78 (1900), and which is “ ‘universally’ recognized
and ‘necessary to the very existence of government.’ ” City of
Oakland v. Oakiand Raiders, Lid., 32 Cal.3d 60, 64, 183
Cal.Rptr. 673, 646 P.2d 835 (1982). “The right is the offspring

10 “For a man’s property is not at all secure, though there be good and
equitable laws to set the bounds of it between him and his fellow subjects, if
he who commands those subjects have the powe to take from any private
man what part he pleases of his property, and use and dispose of it as he
thinks good.” J. Locke, The Second Treatise of Government (An Essay
Concerning the True Original, Extent and End of Civil Government 138 (J.
Gough 3d ed. (1966) at 71)).

A40

of political necessity; and it is inseparable from sovereignty,
unless denied by its fundamental law.” KoA et al. v. United
States, 91 U.S. 367, 372, 23 L.Ed. 449 (1875). The majority
labels the Hawaii legislature’s attempt to exercise this funda-
mental sovereign power a “tyranny of the majority.” But
“concrete cases are not to be decided by calling names.” Puerto
Rico v. Eastern Sugar Associates, 156 F.2d 316, 324 (ist Cir.
1946). My research has disclosed no case supporting the con-
clusion that the statute here at issue is unconstitutional on its
face. To the contrary, precedent and common sense both point
quite plainly to the opposite conclusion. I therefore dissent.

One commentator has already anticipated the problem that
outsiders would have in comprehending the constitutionality of
the Hawaii Land Reform Act.:

The almost instinctive feeling that the Hawaii Act is
radical may be based to some degree on an emotional
reaction rooted in the assumption that since land is easily
available on the open market to anyone who wants to buy
it, no man should be forced to sell his iand to another.
This assumption, although valid in most parts of con-
tinental United States, is not valid in the island State of
Hawaii.

One factor that argues in favor of the Act and may be
considered by the Court, if only subconsciously, is the
current political reality that in much of th world land
reform is essential if democratic forms of government are
to emerge or to prevail. In both Asia and Latin America it
is taken for granted that a redistribution of the land must
be accomplished as a vital first step in carrying out
reforms that will allow democratic governments to be
established and survive. Land reform is necessary for the
economic, political, and social health and stability of
many of these nations.

It would be anomalous and somewhat hypocritical if
the United States.Government were to insist that land
reform be undertaken in other countries when its own
Constitution prevented similar reforms in the American

A4l

States. True, there is a substantial difference between the
State of Hawaii and a country like South Vietnam. The
most obvious one is the difference between their econo-
mics—there are no peasants in Hawaii. But to recognize
tliat difference is not to say that for the long-term politi-
cal and economic health of Hawaii, land reform here is
not as necessary as land reform is to the long-term
development of South Vietnam. The existence of a mo-
nopoly that can control scarce land resources in Hawaii is
dangerous because control of land in an island State
represents more than the economic power that the land
represents in dollar value.

The state’s right to control other types of monopolies is
clear; Hawaii’s right to control and break up a land
monopoly should be at least as clear considering the
greater danger such monopoly poses to the political and
economic health of an island State.

Conahan, Hawaii’s Land Reform Act: Is It Constitutional?, 6
Hawaii B.J. 31, 53 (1969) [hereinafter cited as Hawaii’s Land
Reform Act].

The majority begins by asking the wrong question. It be-
lieves that it “must decide whether the Federal Constitution
permits a state to take the private property of A and transfer
its ownership to B for his private use and benefit.” Maj. op.,
ante, at 790. But the land reform program does not simply
transfer land from one owner to another owner for his private
use and benefit; it transfers land from a handful of large
owners to numerous small owners. Moreover, the “transfer”
here can be accomplished only through the intervention of the
Hawaii Housing Authority, which must find that the transfer
accomplishes the public purposes of the Land Reform Act.
Thus, the majority’s analysis begins with a distorted account
of what the statute actually does. The real question in this case
is not Whether a naked transfer of title solely for a person’s
private use is an unlawful taking. The real question is whether
the legislature of Hawaii may, pursuant to a plan carefully
tailored to guarantee due process and just compensation, bring

A42

about the redistribution of privately held land where the
legislature has found (a) that the concentration of such land in
the hands of a few landholders is a cause of great social and
economic harm to the public and (b) that the distribution of
such land in small parcels to many persons will be to the
public’s benefit and advantage. Having asked the wrong ques-
tion, the majority predictably arrives at the wrong answer.

I. COMITY AND FEDERALISM

As I see it, the only questions presented to us by this case
are, first, whether the district court should have abstained
from deciding it on the merits; and, second, if not, what is the
appropriate standard of review io be applied by a federal court
in passing upon a facial challenge to a legislature’s exercise of
the power of eminent domain. The answers to both questions
emanate from the joint principles of judicial restraint, comity
and federalism, which counsel courts not to interfere unneces-
sarily with the exercise of legislative functions by substituting
their judgment for that of legislatures on primarily legislative
functions, and which counsel the federal courts not to interfere
unnecessarily with the exercise of fundamental state powers.

Issues concerning land use within a state are not easily made
a subject of federal concern. It is an essential attribute of a
state’s sovereignty to be able to use land to promote the
commonweal. That is why a state may take land for a public
use. Whether land is used to promote the common good must
invariably depend on facts and circumstances that will vary
from state to state.

Abstention, and, failing that, deference to legislative judg-
ment, was uniquely appropriate in this case not only because
the Land Reform Act is significant to the Hawaiian people, but
because the case will now have an unfortunate impact on any
future attempt by any state to experiment with land reform,
regardless of whatever compelling needs may exist in a particu-
lar state. Hawaii faces a very difficult land situation. Judicial
modesty should prevent us from thinking that we are in a
better position than the Hawaiian legislature and courts to

~~

A43

judge the effectiveness and constitutionality of any attempt at
reform.

The majority ignores the nature of our federalist compro-
mise. The Constitution could have decided that states are
merely administrative organs of the central government, but in
fact the Constitution decided otherwise. States have been
granted independent law-making power, the purpose of which
is to provide their people with public benefits and services.
There can be no more basic “benefit” than land.

One advantage often cited in favor of our federal system is
that it allows a high degree of free play to the states. “It is one
of the happy incidents of the federal system,” Justice Brandeis
wrote, “that a single courageous state may if its citizens choose
serve as a laboratory and try social and economic experiments
without risk to the rest of the country.” New State Ice Co. v.
Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 387, 76 L.Ed. 747
(1932) (Brandeis, J., dissenting).

The Hawaii Land Reform Act is an important state experi-
ment. The recognition that control over land is crucial to the
existence of “the state as a state” is implicit in federal court
decisions abstaining in state eminent domain proceedings. As
the majority recognizes, citing Louisiana Power & Light Co. v.
City of Thibodeux, 360 U.S. 25, 28, 79 S.Ct. 1070, 1073, 3
L.Ed.2d 1058 (1959), “a state’s eminent domain proceeding is
intimately involved with sovereign prerogative.” Maj. op.,
ante, at 789, n. 1.

The power of eminent domain is a fundamental sovereign
power of the states. Its exercise has always been a legislative
function. The majority’s decision to declare facially unconsti-
tutional the statute before us is thus an extraordinary exercise
of the federal judicial power. I find nothing in the statute so
extraordinarily offensive as to call for such an exercise.

Il. ABSTENTION

Abstention is appropriate in this case, basically, because
without it the federal courts will be interfering unnecessarily in
state judicial processes and judgments. Several more particular
reasons for abstention are apparent upon closer examination.

A44

A. Younger Abstention.

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d
669 (1971), and its progeny, teach that the federal courts ought
to abstain from deciding cases which implicate important state
interests, when those same issues are the subject of current
adjudication in the state courts. Where state criminal proceed-
ings are begun against federal plaintiffs after the federal
complaint is filed but before any proceedings of substance on
the merits have taken place in the federal court, the abstention
principles of Younger may apply in full force. Hicks v.
Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2291-92, 45
L.Ed.2d 223 (1975). Today, seventeen years after Hicks, the
policies underlying Younger are fully applicable to noncriminal
judicial proceedings when important state interests are in-
volved. Middlesex County Ethics Committee v. Garden State
Bar Association, _. U.S. —___., 102 S.Ct. 2515, 73 L.Ed.2d
116 (1982). In the instant case, state court proceedings were
pending before any proceedings of substance on the merits had
taken place in federal court.

State administrative proceedings preceded the plaintiffs’ fil-
ing of their complaint herein in federal district court. On April
22, 1977, pursuant to the statutory requirements of the Hawaii
Land Reform Act, a public hearing was held on the proposed
acquisition of Tract H. On October 20, 1978, the Hawaii
Housing Authority made statutorily required findings that
acquisition of tract land would effectuate the public purpose
underlying the Hawaii Land Reform Act. On October 23,
pursuant to statute, the Trustees were directed to negotiate the
sale of tract land. On January 18, 1979, the Hawaii Housing ~
Authority declared that negotiations had failed. On January
22, 1979, the Hawaii Housing Authority ordered mandatory
negotiations, a move that was later enjoined by the federal
district court. Meanwhile, in Midkiff v. Amemiya, Civ. No.
47103 (Hawaii Ct.App. filed June 29, 1978) (complaint of the
Trustees of the Bishop Estate asking for declaratory judg-
ment), Judge Lum issued extensive findings of fact and upheld
the constitutionality of the Hawaii Land Reform Act.

A4s

Not until February 28, 1979 did the plaintiffs in the instant
case file their complaint in federal court. On November 14,
1979, the district court held a hearing on the initial motion for
summary judgment. But by then, three condemnation suits
were already pending in the state court. Civ. Nos. 59201, 59202
& 59191. These suits were eventually settled. On April 3, 1980,
a subsequent motion for partial summary judgment was heard
in the federal district court. However, by then, a fourth
condemnation proceeding was pending in the state courts. Civ.
No. 60465. On June 10, 1980, the district court issued a final
judgment and permanent injunction. Midkiff v. Tom, 483
F.Supp. 62 (D.C.Hawaii 1979). The fourth condemnation pro-
ceeding, however, was not settled until September 1981.

As of October 18, 1981, the date upon which we heard oral
argument in this case, condemnation suits encompassing
eighteen of the Trustees’ subdivisions were pending in state
courts. Thus, condemnation suits were continuously pending in
the state courts from before the federal district court heard the
initial motion for summary judgment until after we took this
appeal under submission. It appears that such suits are still
pending now.

On November 9, 1981, an interlocutory appeal was taken to
the Hawaii Supreme Court on the issue of whether a particular
condemnation under the Hawaii Land Reform Act was being
done for a public purpose. Hawaii Housing Authority v.
George Li Brown, Civ. No. 60945, Supreme Ct. No. 8489. In
, that case, the Hawaii Supreme Court denied lessees’ motion to
iss landowners’ attack on the constitutionality of the
aii Land Reform Act. In so doing, the court stated, “it
¢ that the law does not favor the waiver of a claim that a
statute is unconstitutional. . . . The constitutional issue in
this case is of course an issue of public importance.”

Citing both Younger and Railroad Comm’n of Texas v.
Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941),
the Seventh Circuit held that a district court properly refrained
from interfering with pending state court eminent domain
proceedings. Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir.
1975). Citing also Louisiana Power & Light Co. v. City of

A46

Thibodaux, supra, the court noted the sensitive nature of
federal court intervention in a state’s eminent domain system.
Also cited with approval was Cree/ v. City of Atlanta, 399 F.2d
777, 779 (Sth Cir. 1968), which stated in reference to a federal
constitutional challenge proceeding simultaneously with a state
court condemnation proceeding:

{T]he principal and essential issue is one properly for
determination by the state courts. Not only is municipal
eminent domain ordinarily a local matter, but it is diffi-
cult to imagine a situation where more confusion would
arise than would be the case if the parties here were
allowed to simultaneously pursue both this action and the
state condemnation proceeding.

Ahrensfeld, supra, at 198. The Ahrensfeld court reasoned that,
since the plaintiffs were able to raise the crux of their federal
constitutional claims in the pending state action, federal court
intervention was unnecessary.

Since important state interests are involved in the implemen-
tation of a state’s land use policy, Younger abstention is fully
applicable here:

The importance of the state interest in the pending state
judicial proceeding and in the federal case calls Younger
abstention into play. So long as the constitutional claims
of respondents can be determined in the state proceedings
and so long as there is no showing of bad faith harass-
ment or some other extraordinary circumstance that
would make abstention inappropriate, the federal courts
should abstain.

Middiesex County Ethics Committee v. Garden State Bar
Ass’n, supra, _._. U.S. at ___., 102 S.Ct. at 2523. The
constitutional issue in the case before us has been and remains
before the Hawaii courts. Clearly the proper route of review
for the instant case would have been up the state court ladder
and then to the United States Supreme Court.

A47

B. Pullman Abstention.

Even if there were no ongoing state proceedings requiring *

abstention under Younger, the principles announced in
Pullman, supra, would call for abstention in this case. The
Court in Pu'iman was confronted with an issue which was
“more than substantial. It touches a sensitive area of social
policy upon which the federal courts ought not to enter unless
no aliernative to its adjudication is open.” 312 U.S. at 498, 61
S.Ct. at 644. The Court observed that adjudication of the
constitutional question might be avoided because the case also
presented a potentially determinative issue of state law. Under
those circumstances, the Court held, the district court ought te
abstain from deciding the constitutional issue, as long as it
appeared that a definitive ruling on the state issue could be
obtained in the state courts “with full protection of the
constitutional claim.”

Pullman abstention is appropriate here, as there may well be
an alternative to adjudicating the federal constitutional chal-
lenge to the land reform statute. The question concerning the
meaning of public use need not be broached if the Hawaii
Land Reform Act permits the state to continue to regulate the
condemned property in some way to achieve the public goals of
alleviating conditions such as inflation and land shortage.
Whether the statute permits any continued regulation is a
doubtful and possibly determinative issue of state law. By
determining the issue on federal grounds, the majority deprives
the state of legitimate opportunity to uphold the land reform
program. ,

Furthermore, there has been no definitive ruling as to
whether the statute is constitutional under the Hawaii Consti-
tution, which has its own “public use” requirement. A judg-
ment by the Hawaii Supreme Court that the statute was in
conflict, either on its face or as applied, with the Hawaii
Constitution, would eliminate forever the need for this or any
court to decide whether the statute conforms to the require-
ments of the federal constitution.

A48

The majority correctly points out that our court will only
reverse the district court’s refusal to abstain if such a refusal
involves abuse of discretion. In the case at hand the district
court did “abuse its discretion,” and thus this court should
overturn the decision. A leading article on abstention doctrine
has persuasively argued:

[Bjefore abstaining in an authorization case, the federal
judge should ascertain whether abstaining will serve any
purpose by determining which way he would rule on the

* state law issue in the absence of abstention. If he would
hold the program unauthorized, so that abstention might
prevent interference with a state program, he should also
ascertain whether the program would suffer irreparable
harm from interference. The greater the harm, the more
this factor weighs in favor of abstention.

Field, Abstention in Constitutional Cases: The Scope of the
Pullman Abstention Doctrine, 122 U. of Pa.L.Rev., 1021 at
1126 (1974). Among the “imprecise factors” to be weighed in
making the decision are “the degree of unclarity of state law;
the extent to which error might harm a state program; and the
extent to which the federal constitutional issue is sensitive and
calls for swift adjudication.” Jd.

Here, the federal court’s decision that the state’s program is
unconstitutional will irreparably damage the program. More-
over, the federal constitutional issue is complex and not one
that demands immediate adjudication. And there is a possibil-
ity of a constitutional construction of the statute. See Parts
Ili(C) & (D), infra. Thus, in this case the factors weigh in
favor of abstention.

In making the decision to abstain in a particular case, a
federal court must refer back to our system of federation.
Some issues demand federalization. One thinks, for example,
of the rights of women and minorities. Given our national
history, women and blacks have suffered harms unique to our
nation, not to any given state. Thus, it is not only feasible but
necessary to protect such rights on a national basis. Rarely is it

A49

appropriate for a court to abstain when it has before it a case
addressing rights of women or minorities. Los Angeles Unified
School Dist. v. United States Dist. Court for the Central Dist.
of California, 650 F.2d 1004 (9th Cir. !981) (Ferguson, J.,
dissenting). Certain kinds of issues are not easy to federalize.
Land reform in particular presents a sitvation in which the
problems of each state vary widely. An attempt to federalize
takes away from the state an important power and robs its
people of any attempt to reach an innovative solution demo-
cratically.

ii!. THE DOCTRINE OF PUBLIC USE

Having wrongly reached the merits in this case, the majority
comes to the wrong conclusion about those merits. My analysis
of the facts of this case and the applicable law convinces me
that the statute under review is constitutional on its face. The
majority errs, | think both by mischaracterizing the facts and
by misconstruing the applicable law.

A. Standard of Review

If a federal court must consider the merits of a defendant’s
contention that 2 taking is not for a public use, the court
should apply the proper standard of review. The court must
give great deference to the state legislature’s determination and
to the ruling of the state’s highest court. The standard of
review is a narrow one. As a consequence:

[T]he Court has never actually held a use to be private
which the courts of a state, with their intimate knowledge
of local conditions arid requirements (and with the con-
currence of the legislature or even of the people of the

state), have declared to be public.
Nichols, Eminent Domain § 7.31{1] [1980]. Of course, this
court has been to profit from i of Hawaii’s
courts, whose j are intimately know about the

conditions of that state, because the federal proceeding has
aborted the orderly adjudication of issues in the state courts.

ASO

The majority is cognizant of precedent fequiring great judi-
cial deference to a legislative determination that a use is a
public use. Berman v. Parker, 348 U.S. 26, 31-32, 75 S.Ct. 98,
101-02, 99 L.Ed. 27; United States ex rel. T.V.A. v. Welch, 327
U.S. 546, 551-52, 66 S.Ct. 715, 717-18, 90 L.Ed. 843 (1946);
United States v. Gettysburg Electric Ry. Co., 160 U.S. 668,
680, 16 S.Ct. 427, 429, 40 L.Ed. 576 (1896).

The majority, however, incorrectly distinguishes those cases
on the ground that they involve the review of congressional
rather than a state legislative determination.

In the most recent of those cases, Berman, supra, Congress
authorized a taking in the District of Columbia. “The power of
Congress over the District of Columbia,” the Court specifically
noted, “includes all the legi:lative powers which a state may
exercise over its affairs.” Be.man, supra, 348 U.S. at 31, 75
S.Ct. at 102 (emphasis added). In delimiting the scope of
judicial review in eminent domain cases, the Berman Court
referred to the narrow role that courts play in reviewing state
legislation:

Subject to specific constitutional limitations, when the
legislature has spoken, the public interest has been de-
clared in terms well-nigh conclusive. In such cases the
legislature, not the judiciary, is the main guardian of the
public needs to be served by social legislation, whether it
be Congress legislating concerning the District of Colum-
bia . . . or the States legislating concerning local af-
fairs. . . . This principle admits of no exception merely
because the power of eminent domain is involved. The
role of the judiciary in determining whether that power is
being exercised for a public purpose * un extremely
narrow one.

Berman, supra, 348 U.S. at 32, 75 S.Ct. at 102 (emphasis
added). In light of the firm language in Berman, | believe that
it is not within our province to usurp the role of Hawaii’s
The rule of deference was also set forth in Welch, supra, a
case that preceded Berman. A commentator has remarked:

ASI

[I]t could be argued that the Court in Welch was reserving
to itself a greater discretion to review the acts of state
legislatures in this area, but it seems clear that the reserve
power of the state in this area is greater than the power of
the federal government when the federal government is
acting within the boundaries of a state (in Welch the
federal government condemned land in a state).

Hawaii’s Land Reform Act, supra, at 37. Finally, Gettysburg
Eiectric Railway, supra, 160 U.S. at 680, 16 S.Ct. at 429, cited
with anpioval the rule “that when the legislature has declared
thc use or purpose to be a public one, its. judgment will be
respected by the courts, unless the use be palpably without
reasonable foundation.” The Court in Gettysburg borrowed
that rule from a standard work on municipal corporations—
hardly a repository of lore about judicial review of congres-
sional action.

The majority is unquestionably correct that it lies with the
judiciary to make the ultimate determination of whether a use
is public. This is merely a restatement of the principie of
judicial review established in Marbury v. Madison,.5 U.S. (1
Cranch) 137, 2 L.Ed. 60 (1803). However, the majority is sadly
mistaken if it believes that a restatement of the obvious negates
the rule of judicial deference in eminent domain cases.

B. The Fallbrook Approach

The majority’s approach to reviewing the taking issue comes
closer to the mark when it states, “we must look at each case
on an ad hoc basis,” and quotes the language in Fallbrook
Irrigation District v. Bradley, 164 U.S. 112, 159-60, 17 S.Ct.
56, 63, 41 L.Ed. 369 (1896), “[W]hat is a public use frequently
and largely depends upon the facts and circumstances sur-
rounding the particular subject-matter in regard to which the
character of the use is questioned.” Unfortunately, the major-
ity never analyses this case on the basis of its own particular
facts and circumstances. Instead, the majority applies five
mechanistic rules, described as “recurring facts and circum-

AS2

stances,” derived from other cases. But general propositions do
not decide concrete cases.

Before further considering the majority’s wrong approach, it
is instructive to consider the right approach of Fallbrook
Irrigation District, supra. In that case, California had passed a
‘aw allowing irrigation districts to condemn property. In up-
holding the law, the court said:

{I]n a State like California, which confessedly embraces
millions of acres of arid lands, an act of the legislature
providing for their irrigation might well be regarded as an
act devoting the water to a public use, and therefore as a
valid exercise of the legislative power. The people of
California and the members of her legislature must in the
nature of things be more familiar with the facts and
circumstances which surround the subject and with the
necessities and the occasion for the irrigation of the lands
than can any one be who is a stranger to her soil. This
knowledge and familiarity must have their due weight
with the state courts which are to pass upon the question
of public use in the light of the facts which surround the
subject in their own State. For these reasons, while not
regarding the matter as concluded by these various decla-
rations and acts and decisions of the people and legisla-
ture and courts of California, we yet, in the consideration
of the subject, accord to and treat them with very great
respect, and we regard the decisions as embodying the
deliberate judgment and matured thought of the courts of
that State on this question.

Id. at 160, 17 S.Ct. at 64. Fallbrook is significant in two
respects. First, in its emphasis on facts and circumstances,
Fallbrook points to the significance that the shortage of water,
an important state resource, has in determining whether a use
is public. Second, Fallbrook stresses that the people of a state
and members of her legislature have more familiarity than
have strangers with the circumstances that justify a taki

The reasoning in Fallbrook was reiterated in Clark v.
198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085 (1905). Clark upheld

AS5S3

a Utah law that gave individual landowners the right to
condemn surrounding private land to irrigate their own private
land. Shortage of water in Utah also helped to justify the
taking. The court again emphasized that peculiar conditions
may exist in a particular state, and that great deference is due
to the knowledge that a state’s citizens possess about local
conditions:

Where the use is asserted to be public, and the right of the
individual to condemn land for the purpose of exercising
such use is founded upon or is the result of some peculiar
condition of the soil or climate, or other peculiarity of the
State, where the right of condemnation is asserted under a
State statute, we are always, where it can fairly be done,
strongly inclined to hold with the state courts when they
uphold a state statute providing for such condemnation.
The validity of such statutes may sometimes depend upon
many different facts, the existence of which would make a
public use, even by an individual, where, in the absence of
such facts, the use would clearly be private. Those facts
must be general, notorious and acknowledged in the
State, and the state courts may be assumed to be excep-
tionally familiar with them. They are not the subject of
judicial investigation as to their existence, but the local
courts know and appreciate them. pon ge

Id. at 367-68, 25 S.Ct. at 678. Similarly, the state courts and
legislature of Hawaii must be assumed to be exceptionally
familiar with the land shortages in Hawaii and to have an
informed understanding of social and economic consequences
that result from this peculiar fact. A review of the Hawaii
legislature’s findings in this regard is illuminating.

C. The Facts of the Case

In Hawaii, a special problem exists that did not exist in
eighteenth century America: Land in that state is concentrated
under the suzerainty of a few large landowners. The legislature
of Hawaii has specifically found:

AS4

mS j (a) The fee simple ownership of residential lands in the
State is still concentrated in the hands of a small number
of landowners. The state and federal governments and the
largest 72 private landowners own approximately 95 per
cent of all land area within the State. On Oahu alone, 22
major private landowners own 72.5 per cent of all iand.

(b) The small number of landowners have continued to
follow the policy of not selling their lands for residential
use but of leasing their lands under long-term residential
leases. While fee simple ownership till accounted for 68.9
per cent of all owner-occupied housing on Oahu in 1972,
leasehold residential development has dominated the
housing market since 1967 as it had during the period
1950 to 1967. Between 1950 and 1966, 40 per cent of all
owner-occupied housing units developed on Oahu had
been on leasehold. Between 1967 and 1972, 46 per cent of
such development had been on leaseholds. In 1973, lease-
holds constituted 32 per cent of all owner-occupied hous-
ing, more than double the percentage in 1960.

The foregoing developments have compelled thousands
of people in the State to resort to leaseholds to satisfy
their housing needs, and this trend is likely to continue in
view of the limited availability of land for residential
purposes.

1975 Haw.Sess.Laws Act 184 § 1, cited in Midkiff v. Tom, 471
F.Supp. 871, 876 n. 21 (D.Hawaii 1979). The Trustees as a
group are the single largest private landowner on Oahu. They
own 15.1% of all land and 22.1% of all privately owned land
on the island. Midkiff v. Amemiya, Civil No. 47103
(Haw.Ct.App.1978). Findings of Fact and Conclusions of
Law, June 29, 1978. Much of Hawaii’s population is concen-
trated on the island of Oahu, the island on which Hawaii’s
most populous city, Honolulu, is located.

The legislature has specifically found that the concentration
of land, coupled with the large landowners’ policy of leasing
rather than selling that land, has undesirable economic and
social effects. Among the undesirable economic effects are

ASS

artificially high prices on leasehold units, the discouragement
of the development of fee simple units, inequality of bargain-
ing power that strongly favors the lessor in rental negotiations,
and a decline in leasehold values after the renegotiation of
leases. 1975 Haw.Sess.Laws Act 184 § 1(d).

The legislature has also found that residential leaseholds
have undesirable social effects. In particular, the pattern of
renegotiating leaseholds at ever higher and inflated prices
aggravates

the already acute need for government-sponsored low and
middle income and elderly housing. With the increasing
number of elderly in this State, the problem promises to
become even more acute in the foreseeable future, and
will adversely affect the health and welfare of these
people and the general welfare of the people of the State
of Hawaii.

Id., 184 § 1(e).

The Hawaii legislature’s findings and declaration of purpose
are eloquent testimony to the need for a land reform program
that will give persons an opportunity to own their own land.
The following are excerpts from Hawaii Rev.Stat. § 516-83
(1976):

There is a concentration of land ownership in the State
in the hands of a few landowners who have refused to sell
the fee simple titles to their lands and who have instead
engaged in the practice of leasing their lands under long-
term leases;

The refusal of such landowners to sell the fee simple
titles to their lands and the proliferation of such practice
of leasing rather than selling land has resulted in a serious
shortage of fee simple residential land and in an artificial
inflation of residential land values in the State;

Due to such shortage of fee simple residential land and
such artificial inflation of residential land values, the
people of the State have been deprived of a choice to own
or take a lease of the land on which their homes are

AS6

situated[.] . . . Long-term leases. . . contain terms and
conditions . . . that restrict their freedom to fully enjoy
such land. . .;

The economy of the State and the public interest,
health, welfare, security, and happiness of the people of
the State are adversely affected by such shortage of fee
simple residential land and artificial inflation of residen-
tial land values and by such deprivation of the people of
the State of the choice to own or take a lease of the land
on which their homes are situated > .;

. . . [T]he ability of such people to fully enjoy such land
through ownership of such land in fee simple will alleviate
these conditions and will promote the economy of the
State and public interest, health, welfare, security, and
happiness of the people of the State;

. . . For a growing proportion of Hawaii’s population,
quite possibly a majority, the high cost of living is denying
them such basic necessities as sufficient nutritional intake,
safe and healthy housing accommodations, clothing, and
adequate preventive and curative health services. A sub-
stantive and significant contributing factor to the high
and rising cost of living is the high cost of land whether
leasehold or fee. Stabilizing the costs of land or, at least,
slowing the artificial inflation of land values would curb
the rising cost of living in Hawaii. . .;

The Constitution of the State of Hawaii provides the
State the power to provide assistance for persons unable
to maintain a standard of living compatible with decency
and health. The rising cost of land tied to other cost of
living increases is swelling the ranks of those persons
unable to maintain a decent and healthful standard of
life. If the inflationary trend of land continues un-
checked, the resultant inflationary total cost of living
could create such a large population of persons deprived
of decent and healthful standards of life that the conse-
quent disruptions in lawful social behavior could irrepara-
bly rend the social fabric which now protectively covers

AS7

tie life and safety of ali Hawaii’s people. The threat
posed by this possibility is/sufficiently real and imminent
to warrant State action to/redistribute land as a means of
curbing continuing inflationary rises in land values.

The right to own land is not an irrevocable grant of a
special privilege where it operates against the general
welfare of the many for the particular benefit of the few

. Checking inflation, improving the stability of the
economy, and forestalling disadvantageous economic dis-
ruptions all are productive of general benefit to all mem-
bers of the Hawaiian society. The sound and wise
conservation, preservation, use and management of land
cannot be separated from the subject of patterns of land
ownership. To accomplish the public purposes of wisely
conserving, preserving, using, and ma

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0143%3A02. Public record. Not legal advice.