# Appendix — Portlock Community Association v. Midkiff

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## Record

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

## Text

g 8 23 2 g 6 wees Bi hae US.
No. AUG 10 1983

ALEXANDER L. STEVAS,

In the Supreme Court ii

OF THE

United States

Octoser TERM, 1983

PorTLOCK COMMUNITY ASSOCIATION (MAUNALUA BEACH);
KoxoHeap Community Lease-Fee, INc.; West MARINA
CoMMUNITY ASSOCIATION; HAHAIONE VALLEY
CoMMUNITY ASSOCIATION,

Appellants,
vs.

Frank E. Movxirr, Ricuarp LyMan, Jr., HUNG Wo Cuinc,
Matsuo TAKABUKI and Myron B. THompson, Trustees of the
Kamehameha Schools/Bishop Estate,

Appellees.

APPENDIX TO JURISDICTIONAL STATEMENT OR
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT FILED BY PORTLOCK COMMUNITY
ASSOCIATION (MAUNALUA BEACH); KOKOHEAD
COMMUNITY LEASE-FEE, INC.; WEST MARINA
COMMUNITY ASSOCIATION; AND HAHAIONE VALLEY
COMMUNITY ASSOCIATION INC.

Coney Y. S. Park RICHARD J. ARCHER
PAuL, JOHNSON & ALSTON Pau ALSTON
A Law Corporation CounsEL or REcorp
Honolulu, Hawaii Suite 1300
ARCHER RoseNAK & HANSON Pacific Trade Center
San Francisco, California Honolulu, HI 96813
Of Counsel (808 ) 524-1212

BOWNE OF SAN FRANCISCO, INC. * 190 NINTH ST. © S.F.,CA 94103 © (415) 864-2300

ASSOCIATION, INcC.; HAHAHIONE VALLEY COMMUNITY ASSOCIATION,
Inc.; KaMiLomi COMMUNITY ASSOCIATION; LUNALILO MARINA
CoMMUNITY ASSOCIATION; MARINERS RipcE AND Cove FEE/ LEASE
CONVERSION COMMITTEE; SPINNAKER IsLE ASSOCIATION;
WalaLae [x1 CoMMuNITY AssoOcIATION; WalAu COMMUNITY
ASSOCIATION; KAHALA COMMUNITY ASSOCIATION, INC.;
KAHALA COMMUNITY FEE PURCHASE FuND and
HaLawa VALLEY Estates FEE CONVERSION CORPORATION,
-Intervenors-Appellants,
vs.

Frank E, Mipxirr, RicHarp LYMAN, Jr., Hunc Wo CuHinc,
Matsuo TaAKABUKI and Myron B. THompson, Trustees of the
Kamehameha Schools/ Bishop Estate, :

Plaintiffs- Appellees.

TABLE OF CONTENTS

Appendix A—Midkiff v. Tom, 702 F.2d 788 (9th
5 EE: ROOD ce av ead AS

Appendix B— Midkiff v. Tom, 483 F.Supp. 62 (D.
Ns TI Sithisnsctsctanbesinnistcttlastectes

Appendix C—Midkiff v. Tom, 471 F.Supp. 871 (D.
A RI LET 208 MMR _—
Appendix D—1967 Hawaii Session Laws, Act No.
i RRO SR Pe

Appendix E—1975 Hawaii Session Laws, Act No.
BE UIE saad teens sccaaseeantepinbece

Appendix F—1975 Hawaii Session Laws, Act No.
8 eee

Appendix G—1975 Hawaii Session Laws, Act No.
gg) | RE RRO A et

Appendix H— Hawaii Housing Authority v. Brown,
og Eee»

Appendix 1—Hawaii Housing Authority v. Castle,
65 Hawaii ...., 653 P.2d 781 (1982)

Appendix J—Docket Entries Herein in Court of
REID: Sccincseistienchitéalbaeiitacenncntiiadiin

OER 250k ERS Oe OS

I I cis lccdcahinilnscoreiaiscnnsgntiesens
Appendix M—Order Denying Petition for Rehear-
ing and Rejecting Suggestion for
Rehearing En Banc ................-.....0.
Appendix N—Judgment of Court of Appeals ..........
Appendix O—Notice of Appeal— Defendants ..........
Appendix P—Notice of Appeal—Intervenors ..........
Appendix Q—Notice of Appeal—Intervenors ..........

A-l

Appendix A
Frank E. Midkiff, Richard Lyman, Jr. Hung Wo Ching,
Matsuo Takabuki and Myron B. Thompson, Trustees of
the Kamehameha Schools/Bishop Estate, Plaintiffs-Ap-
pellants,
vs.

Paul A. Tom, Tony Taniguchi, Wilbert K. Eguchi, Wayne
T. Takahashi, Lawrence N.C. Ing, Nobuyoshi Tamura,
Andrew I.T. Chang, and David C. Slipher, Commis-
sioners of the Hawaii Housing Authority; Franklin Y.K.
Sunn, Executive Director of the Hawaii Housing
Authority; and Hawa:i Housing Authority, Defendants-
Appellees,

and

Wai-Kahala Tract “H” Association, Inc.; Halawa Hills
Landsale Committee; Awakea Association; Alii Shores
Community Association; Enchanted Hills, Unit I;
Portlock Community Association (Maunalua Beach) ;
Kokohead Community Lease-Fee, Inc.; West Marina
Community Association; Kalama Valley Community As-
sociation; Maunalua Triangle-Koko Kai Community As-
sociation, Inc.; Hahahione Valley Community Associa-
tion, Inc.; Kamiloiki Community Association; Lunalilo
Marina Community Association; Mariners Ridge and
Cove Fee/Lease Conversion Committee; Spinnaker Isle
Association ; Waialae Iki Community Association; Waiau
Community Association; Kahala Community Association,
Inc.; Kahala Community Fee Purchase Fund and Halawa
Valley Estates Fee Conversion Corporation, Intervenors-
Appellees.

A-2

No. 80-4368.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 21, 1981.
Decided March 28, 1983.

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.

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 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. Sham-
rock 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 vo. Public Serv. Comm'n, 614 F.2d

A-3

I

On February 19, 1979, the Trustees of the Kamehameha
Schools/Bishop Estate [Bishop Estate] filed a declaratory
relief action alleging that the Hawaii Land Reform Act,
Hawaii Rev.Stat. ch. 516, was unconstitutional. The Com-
missioners and the Executive Director of the Hawaii Hous-
ing Authority and the Hawaii Housing Authority were
named as defendants [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 fol-
lowed.

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.

206, 211-12 (9th Cir. 1980) [International Bhd]. A fedeiai 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 Alle-
gheny v. Frank Mczhuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060,
1063, 3 L.Ed.2d 1163 (1959) (citing inter alia Railroad Comm'n
v. 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 doc-
trine (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.

A-4

We must decide whether the Federal Constitution per-
mits a state to take the private property of A and transfer
its ownership to B for his private use and benefit. It is our
view that it was the intention of the framers of the Constitu-
tion andthe 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 amendment. Missouri Pacific Railway v.
Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ied. 489
(1896) ; Fallbrook Irrigation District v. Bradley, 164 U.S.
112, 158, 17 S.Ct. 56, 63, 41 L.Ed. 369 (1896).

Canton v. Spokane School Dist. * 81, 498 F.2d 840, 845 (9th 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 in-
timately 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), how-
ever, 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.” Id. 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 statute unambiguously states: “The use of the
power to eminent domain [under the Hawaii Land Reform Act]
. . . 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 unconstitu-
tional.” Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct.
507, 511, 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 .. . .” International 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 absten-
tion under this principle (Burford abstention) to cases where: (1)

A-5

. II

As originally drafted, the Federal Constitution contained
no reference to the protection of private property inter-
ests. 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 Grotius, one of the first commentators to
define eminent domain, articulated a “public advantage” as

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 absten-
tion 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 re-
cently 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 Zablocki, 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 abstension 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 not require that a fed-
eral court abandon jurisdiction it has properly acquired simply
because a similar suit is later filed in a state court.” Town of Lock-
port, 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.

A-6

a necessary prerequisite to a taking by the state. 2 H.
Grotius, De Jure Belli Ac Pacis 385 (F. Kelly trans. Lon-
don 1925) (1st 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. de Vattel, The Law
of Nations, 96 (C. Fenwick trans. 1916) (1st 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) (1st ed.
1688).

Ill

The failure to spell out a precise guarantee for the pro-
tection 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 federal Government
and the jealousy of the subordinate Governments, af-
ford a security which has not existed in the case of the
State Governments, and exists in no other. 4. be-

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

A-7

cause experience proves the inefficacy of a bill of rights
on those occasions when its control is most 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 property interests. He stated this concern elo-
quently 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 Jeffer-
son concerning the need to protect minority rights from
the acts of a majority that might seek to remedy unequal
property distribution through legislative action:

[N]Jo society ever did or can consist of [a] . . . homo-
geneous ... mass of Citizens. . . . In all civilized
societies, distinctions are various and unavoidable. A
distinction of property results from that very protec-
tion which a free Government gives to unequal facul-
ties of acquiring it. There will be rich and poor; cred-
itors and debtors; a landed interest, a monied interest,
a mercantile interest, a manufacturing interest... .
[These distinctions will produce dissention and fac-

*Madison also articulated this concept earlier during the consti-
tutional convention: “The lesson we are to draw . . . is that where
majority are united by a common sentiment and have an oppor-
tunity, the rights of the minor party become insecure.” 1 The
Records of the Federal Convention of 1787, 136 (M. Farrend ed.
1911).
¢

A-8

tion.) However erroneous or ridiculous these grounds
of dissention and faction may appear to the enlight-
ened 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 sufficient motives to restrain
them from oppressing the minority.

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

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 pop-
ular current. Notwithstanding the explicit provision
contained in that instrument for the rights of Con-
science, it is well known that a religious establishment
[would] have taken place in that State, if the Legis-
lative 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 Governments the real power lies
in the majority of the Community, and the invasion of
private rights is chiefly to be apprehended, not from
acts of Government contrary to the sense of its con-
stituents, 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 pre-
serve minority rights.

A-9

Complaints are every where heard .. . that our govern-
ments are too unstable, that the public good is dis-
regarded 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.

... [T]he most common and durable source of fac-
tions, has been the various and unequal distribution of
property. Those who hold, and those who are without
property, have ever formed distinct interests of society.
... A landed interest, a manufacturing interest, a mer-
cantile 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... .

. . . 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. .. .

... [In a pure democracy a] common passion or in-
terest will, in almost every case, be felt by a majority
of the whole; ... there is nothing to check the induce-

A-10

ments to sacrifice the weaker party or an obnoxious
individual. .. .

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. 7d. No. 85, at 639
(A. Hamilton); and, “[A strong executive is essential] to
the protection of property against those irregular and high-
handed combinations, which sometimes interrupt the
ordinary course of justice... .” Id. 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
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
“Cejireumstances are now changed.” Jd. Madison reversed
his position and supported the amendments as “providing
additional 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). In-
cluded'Was the following eminent domain clause : “No person
shall be . . . obliged to relinquish his property, where it
may be necessary for public use, without a just compensa-

A-ll

tion.” 1 Annals of Congress 434 (J. Gales ed. 1789). Stoe-
buck, 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 interests con-
tained therein according to the intent of those who drafted
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 property 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 Pub-
lic Use Requirement in Eminent Domain, 57 Or.L.Rev. 203,
204-05 (1978), there is one instance where there is general
agreement that eminent domain must not be used. The sov-
ereign 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 jus-
tice ....”). None of the authorities cited by appellees has
declared such an attempt constitutional.

A-12

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 circumstances surrounding the particular subject mat-
ter in regard to which the character of the use is ques-
tioned.” Fallbrook Irrigation District, 164 U.S. at 159-60, 17
S.Ct. at 63. There are several recurring facts and cireum-
stances, 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.

A

Following the establishment of the United States Consti-
tution, there were two major kinds of activities for which
the power of eminent domain was undisputedly properly
employed: mill acts and road building. See Berger, supra
at 205. General mill acts allowed any owner of land upon
a nonnavigable stream to build and maintain mills for manu-

A-13

facturing 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 chal-
lenged a general mill act enacted by Massachusetts. The
Supreme Court summarily disposed of any general objec-
tion 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, 61 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. Jd. 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 rec-
ognized, from time immemorial.” Jd at 706, 43 S.Ct. at 692.

This court found condemnation of private land for road
building was a public use in Guam v. 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.

B

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 con-

A-14

demnation of land to build roads where no previous roads
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. Hairs-
ton v. Danville d 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 purpose of developing a power
plant, Mt. 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) (condemnation 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 redevelopment
of a community. F.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
(1st 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 could subsist or upon
which experts would operate proportional profit farms.

A-15

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

C

Another factual cireumstance 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 dis-
cussed above include examples of such a transfer of posses-
sion. One example 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 rever-
sionary 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) (condemnation of rever-
sionary interest in land leased by government 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, 335 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 govern-
mental 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 pro-
poses to take the land is public [when declared to be

A-16

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 con-
demned property, the government was a lessor seeking
condemnation of the fee simple interest. In Old Dominion
Land Company the government 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 con-
demnation proceedings after an offer to purchase the land
was refused. Jd. The Court upheld the taking as a public
use. Jd. 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 gov-
ernment sought to condemn the fee simple title. Jd. The
court found acquisition of the fee did not violate the public
use limitation in violation of the owners’ constitutional
rights. Id. at 307.

Eastern Sugar Association, 156 F.2d at 319, also in-
volved a situation where the government could have re-
mained in possession of the condemned land after condem-
nation. One of the acts that was challenged permitted the
government to purchase lands and establish an organiza-
tion 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

4s

~~

A-17

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.
Id. at 529-30, 26 S.Ct. at 302. The line would transport ore
from the mines to the railway station two miles away. Id.
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 condemnor’s arid land to produce
crops. Jd, at 362, 25 S.Ct. at 676. The public use was up-
held 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 obligation “to
move the towers as often as reasonably required by the
owners” in order for them to mine their land. 200 1’.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 con-
demnations involved a minimal taking of land that resulted
in an increased productivity 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 para-
meters 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.

A-18

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

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 determination that the slum area was
harmful to the health, safety, morals, and welfare of the
public. 7d. at 28, 75 S.Ct. at 100. It declared that condem-
nations for redevelopment pursuant to the redevelopment
plan were for a public use. Jd. 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. Jd. at 34,
75 S.Ct. at 103. Thus, it was not important whether a sin-
gle 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.” Jd. This transformation from slum to
healthy thriving community represents a change in the use
of the land.

By contrast, the Hawaii Land Reform Act will result in
no change in use of the property. The property itself is
currently used for residential purposes. After condemna-
tion 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

A-19

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.” Id, at 30, 75 S.Ct. at 101. The remaining land
was to be redeveloped preferably by private enterprise.
Id, Thus, it was possible that certain property owners
would be permitted to repurchase their properties. Jd. 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,
i.e., the redevelopment of the area. In the case before us
there is no such intermediate step in which the govern-
ment holds the property for the accomplishment of a pub-
lic purpose. The lessee simply retains possession of resi-
dential 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 author-
ity of Congress, the right to realize it through the exercise
of eminent domain is clear.” Jd. 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.” Jd. at 32, 75 8.Ct. at 102 (emphasis added).
We read this language as requiring the judiciary to scruti-
nize carefully any legislative attempt to take private prop-
erty so as to determine if it is in violation of any

A-20

constitution provision. The fifth amendment is specific: “No
person shall . . . be deprived of life, liberty, or property,
without due process of law; nor shall private property 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 pro-
tections granted to citizens of the states under the fourteenth
amendment. 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 viola-
tion 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 four-
teenth 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 exis-
tence of public use by the Hawaiian Legislature, Hawaii
Rev.Stat. § 516-83(a)(12)* “is shown to involve an impossi-

“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 com-
pensation 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 pub-
lic use and purpose.

(emphasis added ).

A-21

bility.” Appellees direct our attention to the following cases
as well: Berman, 348 U.S. at 32, 75 S.Ct. at 102 (citing
T.V.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 Rail-
way 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
publie use, not the review of a state legislative determina-
tion. In T.V.A., 327 U.S. at 552, 66 S.Ct. at 718 the Supreme
Court stated that review of a congressional public use dec-
laration is not the same as the review of a state legislative
determination : “But whatever may be the scope of the judi-
cial 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 impossibility.’” (quoting Old Do-
minion Land Co., 269 U.S. at 66, 46 S.Ct. at 40 (emphasis
added)). Where a state legislative determination is in-
volved: “[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 prop-
erly 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,

A-22

notwithstanding compensation may be required.’” Jd. at
252, 25 S.Ct. at 256 (quoting Tracy v. Elizabethtown, Lex-
ington & 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, solely 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., Colchice v. United States,
286 F.Supp. 507, 509 (N.D.Cal1968) (court to review
whether 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 officials to take private property
arbitrarily, capriciously, in bad faith, or for what is essen-
tially a private purpose.” (emphasis added) ).

VII

When we strip away the statutory rationalizations con-
tained in the Hawaii Land Reform Act, we see a naked
attempt on the part of the state of Hawaii to take the pri-
vate property of A and transfer it to B solely for B’s pri-
vate 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 pri-
vate property rights of the landed minority. Our Federal
Constitution and the Bill of Rights were designed to pre-
vent such abuses by the majority. That Constitution now
compels us to find that the Hawaii Land Reform Act vio-
lates the public use limitation of the fifth and fourteenth
amendments. Those provisions of the Hawaii Land Reform
Act that provide for the condemnation of certain residential
property are facially unconstitutional.

A-23

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

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 an-
other 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 author-
ity of precedent, and of the Constitution itself, the Hawaii
Land Reform Act is unconstitutional. It is my further opin-
ion that the United States District Court properly under-
took to decide that issue but reached a manifestly erroneous
conclusion in upholding the Act.

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 ef-
fectiveness and constitutionality of any attempt at reform.”
I therefore think it useful to set forth in calmness and rea-
son such of my own analysis as may indicate why the dis-
sent 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.

A-24

I. Abstention.

First of all, we have decided this constitutional issue be-
cause 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 immodesty, that makes federal abstention “the exception,
not the rule.” Jd. 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, ........ US. ........, 102 S.Ct. 2308, 73
L.Ed.2d 1308 (1982). Abstention is only appropriate “ ‘in
the exceptional circumstances where the order to the parties
to repair to the State court would clearly serve an impor-
tant 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, 1062-1063,
3 L.Ed.2d 1163 (1959)). Since the decision to abstain in-
volves the district court’s discretionary exercise of its equi-
table powers, it is reviewed under the abuse of discretion
standard. Turf Paradise, 670 F.2d at 819. It would have
been an abuse of discretion had the district court abstained.

A. Puilman Abstention

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 F2d at 377. For example, a state court might interpret
the provisions of a challenged statute so as to moot the fed-
eral constitutional issue raised. See, e.g., Red Bluff Drive-In,
Inc. v. Vance, 648 F.2d 1020 (5th Cir.1981), cert. denied, 455
U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982). Here, how-

A-25

ver, 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
Santa 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 & FE. 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 Fourteenth Amendment due process
clauses of the United State Constitution. See Hawaii Const.
art. I, § 20'; Missouri Pacific 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 provision would not be appro-
priate.* See, e.g., Examining Board of Engineers, Archi-
tects, 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 provisions similar
to federal constitution equal protection clause) ; Pue v.
Sillas, 632 F.2d at 81.

*Section 20 provides:

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

*The dissent implies, but does not endeavor to support, the view
that somehow the courts of Hawaii might chance upon a construc-
tion of the Land Reform Act under circumstances not relying upon
familiar concepts of “public use.” Since this is only sheer specula-
tion, it need not detain our thoughts.

A-26

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.Fed. 1424 (1943), to avoid “federal intru-
sion into matters which are largely of local concern and
which are within the special competence of local courts.”
International 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 examined 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 involving zoning and land use questions, even though,
as appellees suggest, issues regarding land use and regula-
tion are special local concerns. See International Brother-
hood, 614 F.2d at 211; Isthmus Landowners Association v.
California, 601 F.2d 1087 (9th Cir.1979) (challenge to
coastal zoning regulations) ; Rancho Palos Verdes Corp. v.
City of Laguna Beach, 547 F.2d 1092 (9th Cir.1976) (zon-
ing 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.’

*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 ab-
stention. 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

A-27

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
principles of “ ‘wise judicial administration.’ ” 424 U.S. at
817, 96 S.Ct. at 1246 (quoting Kerotest Manufacturing Co.
v. C-0-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 “exceptional circumstances * * * indicate that con-
current jurisdiction by state and federal courts is likely to
cause piecemeal litigationy, waste of judicial resources, in-
convenience to the parties, and conflicting results.” Tovar
v. Billmeyer, 609 F.2d 1291, 1293 (9th C@ir.1979). However,
given the “unflagging obligation” of the federal courts to
exercise their jurisdiction, the applicability of this doctrine
is even more limited than the circumstances normally

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 an endorsement of absten-
tion in all proceedings involving eminent domain. On the day it
decided Thibodaux, the Court held that abstention was not ap-
propriate 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 ab-
stention 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 indi-
cated 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 could exercise the power of eminent domain under
Louisiana law—an issue, as Colorado River suggests, which tran-
scended the importance of the case itself. Here there is no such
independent state law issue.

A-28 if
."

justifying abstention. Colorado River, 424 U.S. at 818, 96
S.Ct. at 1246-1247. Thus in Colorado River the Court
found that “exceptional circumstances” existed to dismiss
the federal action in favor of a pending state action
because of the Congressional policy set out in the McCar-
ven Amendment to avoid piecemeal adjudication 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 proceeding
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 ab-
stention 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 on-going state criminal
judicial proceedings. The principle has subsequéntly been
extended beyond the criminal context to state proceedings
which involve “important state interests.” Middlesex
County Ethics Committee v. Garden State Bar Associa-
a US. ......... 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).
Thus, the Supreme Court has specifically approved absten-
tion to avoid interference with civil contempt proceedings
initiated by a state court, Juidice v. Vail, 430 U.S. 327, 97
8.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 proceeding in
which the state sought to recover custody of abused
children, Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 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 juris-

A-29

diction 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 terminated by application of Younger
principles”). Since the federal claimant could raise the
constitutional claims in the state proceedings, the inter-
ests of comity and federalism precluded federal inter-
ference 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 govern-
mental interest that Younger abstention is appropriate.
That court reasoned that since the federal constitutional
claims could be raised in the ongoing state court proceed-
ings 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
abstention doctrine. The court also found that “other cir-
cumstances” were present which made Pullman abstention
appropriate because of an unresolved issue regarding gtate
valuation standards.‘ 528 F.2d at 199-200. But as indicated

‘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 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 Bell Tel. & Tel. 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. )

A-30

above, Pullman abstention is not appropriate here. Also, as
already said, this circuit has concluded that a state’s inter-
est in land use and regulation does not automatically
justify abstention under the Burford doctrine, which, like
Younger, contemplates deference where there is an on-
going 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 litigation and inter-
ference 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,
94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974).

Appellants in this case filed their district court com-
plaint in February, 1979. At that time the only extant pro-
ceedings at the state level were public hearings being con-
ducted by the Hawaii Housing Authority as required
under the Hawaii Land Reform Act before instituting con-
demnation of certain of appellant’s residential tracts. See
Hawaii Rev.Stat. § 516-22.*

"Section 516-22 provides:
Designation of leased fee interest in all or part of development
tract for 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 develop-
ment tract, through the exercise of the power of eminent do-
main or by purchase under the threat of eminent domain after

A-31

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 stmmary judgment motions
before it. The fourth remained pending after the final judg-
ment was entered here, but it too was settled. The dissent
misreads the law in its premise that the mere filing of a

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 resi-
dential leasehold 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 house-
lots 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 contended by the dissent, not trig-
gered 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 Assess-
ment 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 dis-
ciplinary 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.

A-32

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) :

“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 arbitra-
tion and valuation provisions were facially unconstitutional.
Accordingly, the court held that the state administrative
condemnation proceedings could proceed but it enjoined the
operation of the objectionable 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 September, 1979, shortly after the
parties in district court had begun filing motions for sum- -
mary 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, 2566, 45 L.Ed.2d 648 (1975). Under those circum-
stances abstention was not appropriate. See id. (Younger
abstention not applicable where district court issued pre-
liminary injunction prior to institution of state criminal
action); Housworth v. Glisson, 485 F.Supp. 29 (N.D.Ga.
1978) (hearing for injunctive relief on plaintiff’s likelihood
of success qualifies as proceedings of substance on the
merits).

*Following the district court’s ruling, the Hawaii Legislature
amended Section 516 to remove the mandatory arbitration pro-
vision and to amend the valuation provisions.

A-33

Moreover, it appears that the state attorney general
never raised the Younger issue at any time before the dis-
trict court.’ Although the parties may not waive the appli-
cability of Pullman abstention, see e.g., Santa Fe Land Im-
provement 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:

If the state voluntarily chooses to submit to a federal
forum, principles of comity do not demand that the fed-
eral 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). Ac-
cordingly, in submitting the issue of the statute’s constitu-
tionality 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 (5th Cir.1978), afd, 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, how-
ever, rely solely on waiver, for independently it is clear that
Younger does not apply.

In sum, none of the circumstances recognized by the fed-
eral courts as calling for abstention are present here. There-
fore the district court did not abuse its discretion in pro-
ceeding to decide the constitutional issue before it.

II. Public Use

The Hawaii Land Reform Act, Part II, authorizes emi-
nent domain proceedings for the purpose of transferring
from the fee owners to existing lessees the fee simple title

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

A-34

to single family residential lots held under long term
ground leases. Haw.Rev.Stat. §4§ 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 peti-
tion of lessees desiring to obtain the fee title to their leased
property. The statute requires that the application be on
behalf of the lessees of 25 lots or 50% of the lots in a devel-
opment, whichever is less. HawRev.Stat. § 516-22.

While the statute permits the state to appropriate funds
and issue bonds for the purpose of implementing the stat-
ute, 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. §4 516-30, -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
Authority is required to find that the acquisition “will effec-
tuate 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 1967 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 residen-
tial properties who continue under long term leases. Haw.
Rev.Stat., Part III. Rights of Lessees, §4 516-61 through 70.
Among these are rent control and guarantees that such les-
sees may sell or assign their leasehold interests, and may
cure default, this presumably easing the structures of the
landlord-tenant rigid relationships.

A-35

But no restrictions are placed by the Act on the use or
alienation by a lessee-turned feeholder of his property
interest. If the new owner elects to let out to_a new tenant
under a long-term lease, that tenant does not receive pro-
tections 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 frus-
trating the avowed purpose of increasing 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, acquired the interest. See Haw.Rev.Stat. § 516-1(5).
Alternatively, 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 accord-
ing to their respective holdings.

Thus the statute permits, but neither requires nor con-
templates, a change in the use of the land. It merely pro-
vides 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 posses-
sion, 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 Grendinent.
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.

A-36

Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417,
17 S.Ct. 130, 135, 41 L.Ed. 489 (1896). “[O]ne 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
v. Vester, 281 U.S. 439, 446, 449, 50 S.Ct. 360, 362, 363,
74 L.Ed. 950 (1930). In my view, the Hawaii statute accom-
plishes precisely this invalid result, for if it does not con-
stitute 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 more than a transfer for the private use of another.
See e.g., Haw.Rev.Stat. § 516-83. Determining what consti-
tutes a public use for fourteenth amendment due process
examination of eminent domain proceedings, however, is a
justiciable question 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. Dan-
ville € 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

A-37

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. Brad-
ley, 164 U.S. 112, 17 8.Ct. 56, 41 L.Ed. 369 (1896); Puerto
Rico v. Eastern Sugar Associates, 156 F.2d 316 (1st 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); Baycol, Inc. v. Down-
town Development Authority, 315 So.2d 451 (Fla.1975).

[E]minent domain cannot be employed to take private
property for a predominantly private use; it is,
rather, the means provided by the constitution for an
assertion of the public interest and is predicated upon
the proposition that the private property sought is for
a necessary public use. It is this public nature of the
need and necessity involved that constitutes the justi-
fication for the taking of private property, and with-
out which proper purpose the private property of our
citizens cannot be confiscated, for the private owner-
ship 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 jealously pre-
served within the reasonable limits prescribed by law.

Id. at 455 (footnotes omitted).

In determining public use, the court may consider ex-
trinsic facts and examine the statute as a whole to “dis-
cover 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.

A-38

Upon exemination of the statute and the evidence of
record, I conclude that the Hawaii Land Reform Act’s
eminent domain 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 objectives. Massachusetts Board of Retire-
ment 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). How-
ever, 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 com-
mitted 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 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 traditional leasehold arrange-
ments. Midkiff v. Amemiya, Civ.No. 47103 (Haw. 1st 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

A-39

agency of the state, upon the application of a 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 effectuatidn 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 contin-
ues 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 “emirfent do-
main” is created by this legislation; but that characteriza-
tion 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 constitutional muster. The problem
which this Act cannot overcome is not its novelty or bold-
ness or philosophical drift or internal deficiencies, The
problem is in the bar of the Fifth Amendment 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 pri-
vate ownership: 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

A-40

become the private property of another. It is said that
“outsiders” may have a problem “in comprehending the
constitutionality” of this legislation. (Dissent, 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 “redistribu-
tion 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 inter-
national polity, that analogy and that rationale are both
inapposite in the “ace of the organic restraints which our
Constitution was intended and is held to impose upon
governmental authority. 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 have
to have come some change in Amendment V, with a cor-
responding 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.”

*“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, nor will we go upon him, nor send
against him, save by lawful judgment of his peers, or by the law
land. We will not sell, nor deny, nor delay to any man
justice or right.” Magna Carta (1225), Cap. XXIX, Pound
Plucknett, Readings on the History and System of the Common
, 3d ed., page 180.

He

A-41

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 conditions that are financially disadvantageous,
that restrict their freedom to fully enjoy such land
and that are weighted heavily in favor of the few land-
owners 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 per-
cent 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 rea-
sonably 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

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

A-42

whether A or B holds title to the land, the public purpose
vanishes. See Thompson v. Consolidated Gas Utilities
Corp., 300 U.S. at 80, 57 S.Ct. at 376."°

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

FERGUSON, Circuit Judge, dissenting: m

The majority cavalierly decides that the legislature of
Hawaii is forbidden by the federal constitution to carry
out its program of residential land reform. In so doing, the
majority has decided, wrongly, an issue that neither this
court nor the district court should have reached in the first
place. The majority has substituted its opinion for the
careful judgment of the Hawaii state courts, and the Ha-
waii 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 8 |, 845 (9th 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 major-
ity has interfered with a state legislature’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 ‘neces-
sary to the very existence of government.’” City of Oak-

“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
power 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)).

A-43

land v. Oakland Raiders, Ltd., 32 Cal.3d 60, 64, 183 Cal.
Rptr. 673, 646 P.2d 835 (1982). “The right is the offspring
of political necessity; and it is inseparable from sover-
eignty, unless denied by its fundamental law.” Kohl 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 fundamental sovereign power a “tyranny of the ma-
jority.” But “concrete cases are not to be decided by calling
names.” Puerto Rico v. Eastern Sugar Associates, 156 F.2d
316, 324 (1st Cir.1946). My research has disclosed no case
supporting the conclusion 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 consti-
tutionality 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 but it, no man should be forced to sell his land
to another. This assumption, although valid in most
parts of continental 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 the world
land reform is essential if democratic forms of govern-
ment are to emerge or to prevail. In both Asia and
Latin America it is taken for granted that a redistribu-
tion of the Jand must be accomplished as a vital first
step in carrying out reforms that will allow democratic
governments to be established and survive. Land re-
form is necessary for the economic, political, and social
health and stability of many of these nations.

A-44

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 Amer-
ican States. True, there is a substantial difference be-
tween the State of Hawaii and a country like South
Vietnam. The most obvious one is the difference be-
tween their economies— there are no peasants in Ha-
waii. But to recognize that difference is not to say that
for the long-term political and economic health of
Hawaii, land reform here is not as necessary as land
reform is to the long-term development of South Viet-
nam. The existence of a monopoly 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
believes that it “‘must decide whether the Federal Constitu-
tion 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. More-
over, the “transfer” here can be accomplished only through
the intervention of the Hawaii Housing Authority, which

A-45

must find that the transfer accomplishes the public pur-
poses of the Land Reform Act. Thus, the majority’s anal-
ysis 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 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. Hav-
ing asked the wrong question, the majority predictably
arrives at the wrong answer.

I. COMITY AND FEDERALISM

As I see it, the only questions presented to us by this
ease 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 to be ap-
plied 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 unnecessarily with the
exercise of legislative functions by substituting their judg-
ment for that of legislatures on primarily legislative func-
tions, 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 attri-
bute of a state’s sovereignty to be able to use land to
promote the commonweal. That is why a state may take

A-46

land for a public use. Whether land is used to promote the
common good must invariably depend on facts and circum-
stances that will vary from state to state.

Abstention, and, failing that, deference to legislative
judgment, 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 particular 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 judge the effectiveness and con-
stitutionality of any attempt at reform.

The majority ignores the nature of our federalist com-
promise. The Constitution could have decided that states
are merely administrative organs of the central govern-
ment, but in fact the Constitution decided otherwise. States
have been granted independent law-making power, the pur-
pose 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 signle courageous state may if its
citizens choose serve as a laboratory and try social and eco-
nomic 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
experiment. The recognition that control over land is cru-
cial 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

A-47

Power & Light Co. v. City of Thibodaux, 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 legis-
lative function. The majority’s decision to declare facially
unconstitutional the statute before us is thus an extraordi-
nary 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 unnecessar-
ily in state judicial processes and judgments. Several more
particular reasons for abstention are apparent upon closer
examination.

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 im-
portant state interests, when those same issues are the
subject of current adjudication in the state courts. Where
state criminal proceedings are begun against federal plain-
tiffs 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
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, seven-
teen years after Hicks, the policies underlying Younger are
fully applicable to non-criminal judicial proceedings when
important state interests are involved. Middlesex County
Ethics Committee v. Garden State Bar Association, ......
US. ......, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). In the

.

. re

A-48

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’
filing 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 pea the Trustees were»
directed to negotiate the sale of tract land. On January 18,
1979, the Hawaii Housing Authority declared that negotia-
tions 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 judgment), Judge
Lum issued extensive findings of fact and upheld the con-
stitutionality of the Hawaii Land Reform Act. "

Not until February 28, 1979 didpthe plaintiffé in the
instant case file their complaint in federal court. On ‘No-
vember 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, 19807 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 perma- «+
nent injunction, Midkiff v. Tom, 483 F.Supp. 62 (D.C. ,

'» Hawaii 1979). The fourth condemnation proceeding, how-

ever, was not settled until September 1981,

4: .
S “

A-A49

As of October 18, 1981, the date upon which we heard
oral argument in this case, condemnation suits encom-
passing eighteen of the Trustees’ subdivisions were pend-
ing in state courts. Thus, condemnation suits were continu-
ously pending in the state courts from before the federal
district court heard the initial motion for summary judg-
ment 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 we« being done for a public purpose. Hawaii Housing
Aut] |: sv. George Li Brown, Civ. No. 60945, Supreme Ct.
No. 8489. In that case, the Hawaii Supreme Court denied
lessees’ motion to dismiss landowners’ attack on the con-
stitutionality of the Hawaii Land Reform Act. In so doing,
the court stated, “it appears 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 emi-
nent domain proceedings. Ahrensfeld v. Stephens, 528 F.2d
193 (7th Cir. 1975). Citing also Louisiana Power & Light
Co. v. City of Thibodaux, supra, the court noted the sensi-
tive nature of federal court intervention in a state’s emi-
nent domain system. Also cited with approval was Creel v.
City of Atlanta, 399 F.2d 777, 779 (5th 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 munie-

—

A-50

ipal eminent domain ordinarily a local matter, but it is
difficult 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 imple-
mentation 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 constitu-
tional claims of respondents can be determined in the
state proceedings and so long as there is no showing of
bad faith harassment or some other extraordinary cir-
cumstances that would make abstention inappropriate,
the federal courts should abstain.

Middlesex County Ethics Committee v. Garden State Bar
Ass'n, supra, ...... USS. at ...... , 102 S.Ct. at 2523. The con-
stitutional 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 o United States Supreme Court.

_B. Pullman Abstention.

Even if there were no ongoing state proceedings requir-
ing abstention under Younger, the principles announced in
Pullman, supra, would call for abstention in this case. The
Court in Pullman 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 alternative to its adjudication is open.” 312 U.S.

A-51

at 498, 61 S.Ct. at 644. The Court observed that adjudi-
cation 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 to 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
challenge to the land reform statute. The question concern-
ing the meaning of pablic 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 con-
tinued regulation is a doubtful and possibly determinative
issue of state law. By determining the issue on federal
grounds, the majority deprives the state of a 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
‘Constitution, which has its own “public use” requirement.
A judgment 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 requirements of the federal constitution.

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 absten-
tion doctrine has persuasively argued :

A-52

[Blefore 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 pro-
gram is unconstitutional will irreparably damage the pro-
gram. Moreover, the federal constitutional issue is complex
and not one that demands immediate adjudication. And
there is a possibility of a constitutional construction of the
statute. See Parts III(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 federa-
tion. 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 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 Califor-

A-53

nia, 650 F.2d 1004 (9th Cir.1981) (Ferguson, J., dissenting).
Certain kinds of issues are not easy to federalize. Land
reform in particular presents a situation in which the prob-
lems 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.

Ill. 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, I think both by mischaracter-
izing the facts and by misconstruing the applicable law.

A. Standard of Review

If a federal court must consider the merits of a defend-
ant’s contention that a 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 con-
sequence :

(T]he Court has never actually held a use to be private
which the courts of a state, with their intimate knowl-
edge of local conditions and requirements (and with
the concurrence 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 unable to profit from the wisdom of Hawaii’s
courts, whose judges are intimately knowledgeable about
the conditions of that state, because the federal proceeding
has aborted the orderly adjudication of issues in the state
courts.

A-54

The majority is cognizant of precedent requiring great
judicial 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. a con-
gressional rather than a state legislative determination.

In the most recent of those cases, Berman, supra, Con-
gress authorized a taking in the District of Columbia. “The
power of Congress over the District of Columbia,” the
Court specificially noted, “includes all the legislative powers
which a state may exercise over its affairs.” Berman, supra,
348 U.S. at 31, 75 S.Ct. at 102 (emphasis added). In delimit-
ing 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-night 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 Dis-
trict of Columbia... or the States legislating concern-
ing local affairs..... This prinaiple admits of no ex-
ception 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 pur-
pose is an 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, I believe
that it is not within our province to usurp the role of
Hawaii's legislature.

A-55

The rule of deference was also set forth in Welch, supra,
a case that preceded Berman. A commentator has re-
marked:

[I]t could be argued that the Court in Welch was re-
serving to itself a greater discretion to review the acts
of state legislature 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, Gettys-
burg Electric Railway, supra, 160 U.S. at 680, 16 S.Ct. at
429, cited with approval the rule “that when the legislature
has declared the use or purpose to be a public one, its judg-
ment 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 congressional 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 prin-
ciple 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

A-56

use frequently and largely depends upon the facts and cir-
cumstances surrounding the particular subject-matter in
regard to which the character of the use is questioned.”
Unfortunately, the majority never analyses this case on
the basis of its own particular facts and circumstances. In-
stead, the majority applies five mechanistic rules, described
as “recurring facts and circumstances,” derived from other
cases. But general propositions do not decide concrete cases.

Before further considering the majority’s wrong ap-
proach, it is instructive to consider ‘the right approach of
Fallbrook Irrigation District, supra. In that case, Califor-
nia had passed a law allowing irrigatiou districts to con-
demn property. In upholding the law, the court said:

[I]n a State like California, which confessedly em-
braces 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 sur-
round the subject and with the necessities and the
occasion for the irrigation of the lands than can any
one 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 fact which surround the subject
in their own State. “or these reasons, while not re-
garding the matter as concluded by these various decla-
rations and acts and decisions of the people and legis-
lature 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.

A-57

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 circum-
stances that justify a taking.

The reasoning in Fallbrook was reitérated in Clark v.
Nash, 198 U.S. 361, 25 S.Ct. 676, 49 . 1085 (1905).
Clark upheld 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 exer-
cising 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 condemna-
tion 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 ex-

- ceptionally familiar with them. They are not the sub-
ject of judicial investigation as to their existence, but
the local courts know and appreciate them.

A-58

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 conse-
quences 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 concen-
trated under the suzerainty of a few large landowners.
The legislature of Hawaii has specifically found:

(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 govern-
ments 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 land.

(b) The small number of landowners have continued
to follow the policy of not selling their lands for resi-
dential use but of leasing their lands under long-term
residential leases. While fee simple ownership still
accounted for 68.9 per cent of all owner-occupied
housing on Oahu in 1972, leasehold residential develop-
ment 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, leaseholds constituted 32
per cent of all owner-occupied housing, more than
double the percentage in 1960.

The foregoing developments have compelled thou-
sands of people in the State to resort to leaseholds to

A-59

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 landowners 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 Conclu-
sions of Law, June 29, 1978. Much of Hawaii’s population
is concentrated on the island of Oahu, the island on which
Hawaii’s most populous city, Honolulu, is located.

The legislature has specifically found that the concen-
tration of land, coupled with the large landowners’ policy of
leasing rather than selling that land, has undesirable eco-
nomic and social effects. Among the undesirable economic
effects are artificially high prices on leasehold units, the
discouragement of the development of fee simple units,
inequality of bargaining power that strongly favors the
lessor in rental negotiations, and a decline in leasehold
value 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 in-
creasing 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
Hawaii.

A-60

The Hawaii’s legislature’s findings and declaration of
purpose are eloquent testimony to the need for a land
reform program that will give persons an oportunity 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 prac-
tice 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 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
residential land values and by such deprivatien of the
people of the State of the choice to own or take 8 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, wel-

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fare, 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 nutri-
tional intake, safe and healthy housing accommoda-
tions, clothing, and adequate preventive and curative
health services. A substantive and significant contrib-
uting factor to the high and rising cost of. living is
the high cost of land, whether leasehold or fee. Stabi-
lizing the cost 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 con-
tinues unchecked, the resultant inflationary total cost
of living could creeate such a large population of
persons deprived of decent and healthful standards of
life that the consequent disruptions in lawful social
behavior could irrepar

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0238%3A2. Public record. Not legal advice.