Motion to Dismiss or Affirm — Portlock Community Association v. Midkiff

Office-Supreme Court, US,

Iren

No. 83-236 OCT 8 1983

* = n

IN THE . —

Supreme Court of the United States

OCTOBER TERM, 1983

PORTLOCK COMMUNITY ASSOCIATION, et al.,

1 Appellants,

FRANK E. MIDKIFF, et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Ninth Circuit

MOTION TO AFFIRM

E. BARRETT PRETTYMAN, IR.“

PAUL J. LARKIN, JR.

B. EVAN BaYH, III

HOGAN & HARTSON

(a partnership including

professional corporations)

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

CLINTON R. ASHFORD

ROSEMARY T. FAZIO

ASHFORD & WRISTON

235 Queen Street

P.O. Box 131

Honolulu, Hawaii 96810

(808) 524-4787

G. RICHARD MoRRY

EARL T. SATO

HAMILTON, GIBSON,

NICKELSEN, RUSH & MOORE

20th Floor

Hawaii Building

745 Fort Street

Honolulu, Hawaii 96813

(808) 521-0400

* Counsel of Record Counsel for Appellees

— — — — ‘

WILSON - Eras PrinTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Appellees respectfully submit that the only questions

properly before this Court are the following: *

1. Whether a state statute providing for a taking by

eminent domain of the fee simple title of lessors’ lots for

the immediate transfer of that title to lessees violates the

“public use” requirement of the Fifth and Fourteenth

Amendments to the Constitution of the United States,

where that taking (a) can be performed only at the behest

of the individual lessees already owning homes situate

upon the lots; (b) applies only to the specific lots for

which the lessees have applied and for which the lessees

themselves pay the amount awarded upon condemnation;

(e) does not change the use, usability, possession, or oc-

cupancy of the lots taken, or their environs, but instead

simply transfers title to the applicant lessees; (d) involves

the State only as the conduit for the transfer of title;

and (e) does not establish any restriction of any kind

upon the lessees’ right to impose restraints upon the fur-

ther alienation of those lots once the lesses have obtained

title.

2. Whether the courts below did not correctly assume

jurisdiction over the constitutional questions presented

where:

(a) under the Pullman doctrine, (i) no party had

raised this doctrine in the Court of Appeals; and (ii) the

state eminent domain statute at issue clearly stated that

any exercise of the state’s eminent domain authority “is

* The various appellants in Nos. 83-141, 83-236 and 83-288 can-

not agree as to what the Questions Presented are and have set

forth three different sets of such questions. See the Jurisdictional

Statement of the Hawaii Housing Authority et al. (hereinafter

“HHA JS”) at i; the Jurisdictional Statement of the Kahala Com-

munity Association et al. (hereinafter “Kahala JS”), at 1; and the

Jurisdictional Statement of the Portlock Community Association

et al. (hereinafter “Portlock JS”) at i.

_ (i)

ii

for a public use and purpose,” thus leaving no room for

ambiguity or a different state court interpretation;

(b) under the Younger doctrine, (i) the State never

claimed at any time throughout the proceedings in both

lower courts that Younger was applicable and, to the con-

trary, affirmatively sought a federal judicial decision on

the merits; (ii) private parties cannot assert Younger ab-

stention; and (iii) there were no pending state court pro-

ceedings either at the time this suit was brought or at the

time the, federal District Court issued a temporary re-

straining order and later a partial preliminary injunction

against the enforcement of the challenged state law;

(e) under the Burford doctrine, (i) no party had ever

contended before now that abstention was appropriate un-

der this doctrine; (ii) appellees raised substantial federal

constitutional claims under 42 U.S.C. § 1983 in their com-

plaint; (iii) there was no question of whether the State

had the purported authority, under state law, to condemn

appellees’ property; and (iv) the State had not established

a specialized court system to resolve state condemnation

suits; and

(d) under the Colorado River doctrine, (i) no party

had ever contended before now that abstention was ap-

propriate under this doctrine; (ii) there was no federal

statute counseling in favor of state court litigation; (iii)

plaintiffs’ claims were based upon federal law; (iv) the

federal suit preceded the filing of any state court. suit;

(v) abstention would have inevitably have lead to piece-

meal litigation; and (vi) there was no inconvenience to

the parties in litigating this case in federal court.**

If probable jurisdiction is noted, appellees will also address

the following questions which were presented to, but did not have

to be decided by, the Court of Appeals:

8. Whether the stat“ statute described in Question 1 violates

the Due Process Clause of the Fourteenth Amendment by imper-

missibly delegating to private parties the right to exercise the

sovereign power of eminent domain.

4. Whether the state statute described in Question 1 violates

the Due Process Clause of the Fourteenth Amendment by failing

to have as a sustaining legislative purpose anything other than a

bare desire to harm a politically unpopular group of landowners

within the state.

5. Whether the state statute described in Question 1 violates

the Contract Clause of Article I, § 10, of the Constitution as applied

to leases executed prior to its initial enactment.

TABLE OF CONTENTS

QUESTIONS PRLSENTEBDo

— 3 ——

r c

SUMMARY OF ARGUMENT —————)————

. —̃ — T —

THE COURT OF APPEALS’ NARROW DE-

CISION IS MANIFESTLY CORRECT AND

DOES NOT CONFLICT WITH PRIOR DECI-

SIONS OF THIS COURT OR OTHER CIRCUIT

COURTS ON ABSTENTION .

(v)

(i)

10

12

ty

vi

TABLE OF AUTHORITIES

Cases: Page

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).. 15

Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir.

1975) f ˙,²m . taht atl des 19

Alabama Public Service Comm’n v. Southern Ry.

, ! 22

Arizona v. San Carlos Apache Tribe, 108 S. Ct.

t 22, 23

Babbitt v. United Farm Workers Nat' Union, 442

r AA cl etaciacadac 12

Brown V. Fogel, 387 F.2d 692 (4th Cir. 1967), cert.

denied, 390 U.S. 1045 (19688) 16

Burford v. Sun Oil Co., 319 U.S. 315 (1943 passim

Colorado River Water Cons. Dist. v. United States,

e x passim

County of Allegheny v. Frank Mashuda Co., 360

,,,, ĩ 0... 21, 22

Davis v. Finance Realty, No. 4735 (Haw. Sup. Ct.

%% 2

Delta Air Lines, Inc. v. August, 450 U.S. 346

r ⁰ A NES LD BRHF 15

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) 20

Engle v. Isaac, 456 U.S. 107 (198277 16

Estelle v. Smith, 451 U.S. 454 (1981777 16

Examining Board v. Flores de Otero, 426 U.S. 572

PP —T—. csddassetesiadl 13, 14

H. L. v. Matheson, 450 U.S. 398 (19817 19

Harris v. McRae, 448 U.S. 398 (1980) 19

Harrison v. NAACP, 360 U.S. 167 (1959) ............ 15

Hawaii Housing Authority v. Midkiff, Civil No.

63408 (Haw. Cir. Ct. Mar. 30, 1983 8

Hawaii Housing Authority v. Midkiff, Civil No.

63408 (Haw. Cir. Ct. Apr. 28, 1983

Hawaii Housing Authority v. Midkiff, No. A-113

(Sept. 2, 1983) (Rehnquist, J., in Chambers) 9

Hicks v. Miranda, 422 U.S. 332 (1975) 20

Hopkins v. Jarvis, 648 F. 2d 981 (5th Cir. 1981) 16

Hunt v. Washington State Apple Advertising

Comm’n, 482 U.S. 888 (1977) 19

.

vii

TABLE OF AUTHORITIES—Continued

Pege

Jenkins v. Anderson, 447 U.S. 231 (1980) .............. 16

Kolender v. Lawson, 108 S. Ct. 1855 (1983 17

Louisiana Power & Light Co. v. City of Thibodauz,

,, 22

McKart v. United States, 395 U.S. 185 (1969) 21

Middlesex County Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423 (1982) 18

Midkiff v. Amemiya, No. 7294 (Haw. Sup. Ct. May

(CR SET ENS SER 2S re 5

Midkiff v. Greig, No. 9208 (Haw. Sup. Ct. Apr. 21,

r eteedanlesiion 8

Midkiff v. Hagegawa, No. 4727 (Haw. Sup. Ct.

% 2

Midkiff v. Tom, No. 80-4368 (9th Cir. Apr. 14,

r alae 8,9

Midkiff v. McCormack, No. 4728 (Haw. Sup. Ct.

117%yr%%yy%%%%%ꝓC:!ũ 2

Moses H. Cone Memorial Hosp. v. Mercury Con-

str. Corp., 108 S. Ct. 927 (1983) 22, 23

New Motor Vehicle Bd. v. Orrin W. Fox Co., 439

r AONE Se em CR 12

Ohio Bureau of Employment Service v. Hodory,

,, teciticninessndncondvicethasitietgeashs 17, 19

Patsy v. Board of Regents, 457 U.S. 496 (1982) 21

Railroad Comm’n v. Pullman Co., 312 U.S. 496

1f1J7777˙Ü˙.⁵᷑§Ü[——— 2 passim

State v. Anderson, Civil No. 43937 (Haw. Cir. Ct.

i . 2

Steagald v. United States, 451 U.S. 204 (1981) 18

Steffel v. Thompson, 415 U.S. 452 (1974) ............ 20

Town of Lockport v. Citizens for Community Ac-

. 20

United States v. Oritz, 422 U.S. 891 (1975) ............ 18

Valley Forge Christian College v. Americans for

Separation of Church and State, Inc., 454 U.S.

( PO ae area SIS a 19

Vance v. University Amusement Co., 445 U.S. 308

(1980) (per CUTIAQM) .02......cccceeceeeeeeeeeeeeeee 15

viii

TABLE OF AUTHORITIES—Continued

Page

Wainwright v. Sykes, 433 U.S. 72 (1977) .............. 16

Warth v. Seldin, 422 U.S. 490 (1975) 19

Wisconsin v. Constantineau, 400 U.S. 433 (1971) 12, 13

Younger v. Harris, 401 U.S. 37 (19717722 passim

Zwickler v. Koota, 389 U.S. 241 (1967) 12, 15

Constitution:

cc lait 23

, 23

Fourteenth Amendment . 3, 15

Statutes:

42 U.S.C. 1983 (1976 & Supp. V 198177777 11, 21

42 U.S.C. 1997 et seq. (Supp. V 1981) ...................... 21

e ...... 22

. passim

R. 4

1967 Haw. Sess. Laws Act 307 . 1.3

1968 Haw. Sess. Laws Act 46 2

1980 Haw. Sess. Laws Act 10 3

Treatises:

R. Stern & E. Gressman, Supreme Court Practice

. 15

17 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure (1978)))t::; 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-236

PORTLOCK COMMUNITY ASSOCIATION, et al.,

* Appellants,

FRANK E. MIDKIFF, et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Ninth Cireuit

MOTION TO AFFIRM

Pursuant to Rule 16 of the Rules of this Court, ap-

pellees Frank E. Midkiff, et al. (hereinafter Trustees“),

move that the judgment of the United States Court of

Appeals for the Ninth Circuit be affirmed on the ground

that the judgment is plainly correct and the challenge to

it so insubstantial as to warrant no further review.

STATEMENT

Trustees recite here only those facts relevant to the

Court’s consideration of appellants’ arguments on absten-

tion. For a fuller discussion of the underlying facts, we

invite the Court’s attention te the Statement in our Mo-

tions to Affirm in Nos. 83-141 and 83-283, which is in-

corporated herein by reference.

A. Background.

The initial version of Chapter 516 was enacted as Act

307 in 1967.' For nearly a decade the statute lay dor-

11967 Haw. Sess. Laws, Act 307 (hereinafter “Act 307”).

2

mant, in part due to unanswered questions regarding its

constitutionality,? and in part due to the continuance of

low rents fixed at the inception of the lease terms.* After

a series of liberalizing amendments to improve the lessees’

litigation position, the HHA began administrative pro-

ceedings in 1978 that, if uninterrupted, would ultimately

have led to the involuntary condemnation of Trustees’ fee

title in various lots. These included a direction that

Trustees submit to mandatory arbitration for prima facie

determination of the prices to be paid to Trustees by

lessees in Tract H of the Waialae-Kahala subdivision in

2 Prior to these proceedings, all actions under the purported

authority of the statute were carried out by voluntary agreement

among the lessors and the lessees (Preliminary Injunction Hearing,

April 24-27, 1979 (Tr. 217)).

Act 307 gave the Hawaii Supreme Court original jurisdiction

of suits questioning the statute’s constitutionality. Trustees filed

two such actions in 1967 (Midkiff v. Hasegawa, No. 4727, and

Midkiff v. McCormack, No. 4728) and another residential lessor

filed a similar action (Davis v. Finance Realty, No. 4735). The

HHA and the State of Hawaii were defendants in the three suits.

When the legislature rendered moot many of the questions raised,

through statutory amendments designed to blunt the Complaints

(1968 Haw. Sess. Laws, Act 46), the suits were dismissed without

prejudice. Recognizing that the legislature could legislate faster

than they could litigate, Trustees declined to seek judicial protec-

tion again until the statute was applied against them. Meantime,

in 1975, the Hawaii Attorney General brought suit against the

private property for non-public purposes. This, too, was dismissed

without prejudice. State v. Anderson, Civil No. 43937 (Haw. Cir.

Ct.).

Honolulu for the taking of the fee simple title.“ Under

state law, none of these administrative proceedings was

part of any later-filed state court condemnation suit;

Haw. Rev. Stat. § 516-51(b) explicitly states that It] his

mandatory arbitration shall be in advance of and shall

not constitute any part of any action in condemnation or

eminent domain.”* Rather than submit to mandatory

arbitration, Trustees instead brought the present action

for injunctive and declaratory relief.

B. The Proceedings Below.

1. Before any state court condemnation suits were

filed against them, Trustees filed this suit on February

28, 1979, seeking a declaratory judgment that Chapter

516 is unconstitutiona! and an injunction against its en-

forcement.’ In its answer, HHA raised only the rationale

5 Decision on Motion for Preliminary Injunction (HHA JS App.

A102 n.52). Trustees and the lessees in Tract H ultimately agreed

upon a voluntary sale, and the Tract H Community Association

withdrew its intervention in this lawsuit.

* After the District Court had ruled that the mandatory arbi-

tration provisions were unconstitutional, the legislature amended

this section to substitute the term “preliminary negotiations” for

the term “mandatory arbitration” (1980 Haw. Sess. Laws, Act 107,

§8; HHA JS A131-A132).

7 Trustees’ complaint asserted that the use of eminent domain

for the taking of fee simple titles for transfer to lessees was solely

for private use and not for public use, in violation of the Fifth and

Fourteenth Amendments to the Constitution of the United States.

The complaint also alleged that the statute does not vest power in

the state or its agency, the HHA, to make the essential determina-

tion as to which, if any, lots should be taken; but, rather, uncon-

stitutionally delegates that power to lessees. Further, it alleged

that the statute contravenes the Contract Clause of the Constitu-

tion because it abrogates the terms of pre-existing lease contracts

(Record Excerpts in the Court of Appeals (“RE”), 10-14).

4

of Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941),

as a basis for abstention, and did not assert that any other

abstention doctrine was appropriate.* Several private

organizations, representing lessees of appellees’ prop-

erty, later intervened.“ Like HHA, the only abstention

doctrine adverted to in the answers (filed on behalf of

some, not all, of the intervenors) was Pullman abstention

(RE 67). Furthermore, intervenors admitted in their

answers what Chapter 516 itself makes clear: that the

administrative proceedings antedating the filing of ap-

pellees’ suit in federal court were “not part of any action

in condemnation or eminent domain” (RE 60).

2. At the time Trustees filed their suit, there were no

pending state court proceedings involving the constitu-

tionality of Chapter 516. The Ninth Circuit’s express

finding to this effect (HHA JS App. A2-A4 n.1) is plainly

correct. The case cited by Portlock (Portlock JS 6-7) in-

volved a challenge to a different statute, Haw. Rev. Stat.

519-2, Hawaii’s rent control law, which is not a part

of the so-called Land Reform Act.“ Trustees could not

Paragraph 18 of HHA’s answer stated:

This court should abstain from ruling on the matters raised

in the Complaint until such time as State courts have provided

authoritative interpretations of provisions of Chapter 516,

Hawaii Revised Statutes, which interpretations may preclude

the necessity for a decision of the constitutional issues raised

by the Complaint. [RE 52.]

HHA later made clear, in its opposition to appellees’ motion for a

preliminary injunction, that the only abstention doctrine about

which it was concerned, and which it presented to the District

Court, was Pullman (see State Defendants’ Memorandum In Oppo-

sition To Plaintiff’s [sic] Motion For Preliminary Injunction (filed

Apr. 19, 1979), pp. 82-87).

On March 23, 1979, the District Court granted motions of cer-

tain community associations, representing lessees, to intervene.

Some of these associations later withdrew from the case after their

members purchased the fee titles to their lots in negotiated

transactions.

% Judge Lum’s extensive findings of facts“ have no collateral

estoppel or other legal effect. While on appeal, the case was

5

have earlier raised their constitutional claims in either of

the two cases cited by HHA (HHA JS 6-8), because the

Wai-Kahala Tract “H” suit was not filed until Septem-

ber 21, 1979, months after the preliminary injunction was

entered by the District Court, and the Kamiloiki Valley

suit was not filed until November 10, 1980, after more

than another year had passed."

3. The District Court, on February 28, 1979, issued

a temporary restraining order against HHA enforcement

of the Act (HHA JS App. A78 & n.5), which it modified

on March 27, 1979, so as to permit all procedural steps

under the statute prior to mandatory arbitration and

condemnation (id.). Trustees later moved for a prelimi-

nary injunction against the further enforcement of Chap-

ter 516. Again, in their oppositions to Trustees’ motion,

the only abstention doctrine adverted to by HHA and

intervenors was Pullman (see note 8, supra). After

a hearing, the District Court handed down its decision

on Trustees’ motion on May 8, 1979 (HHA JS App. A77

et seg.) . The preliminary injunction itself was entered on

June 8, 1979."* There were still no state court condemna-

rendered moot and the judgment was vacated. Judgment on Appeal

filed on May 18, 1982, in Midkiff v. Amemiya, No. 7294 (Haw.

Sup. Ct.).

11 Contrary to the assertions (HHA JS 6) that Wai-Kahala Tract

“H” “had been designated for acquisition by HHA on October 20,

1978” and that this “designation” had been “appealed,” the HHA

merely passed the resolution preliminarily, concluding that desig-

nation would effect the purposes of the Act and requesting the

lessor and lessees to negotiate the price to be paid. The actual

designation did not occur until September 21, 1979, immediately

preceding the filing of the suit. The “appeal” was an attempt by

the Wai-Kahala Tract “H” lessees to force Trustees into an arbitra-

tion in District Court which was later held unconstitutional.

12The preliminary injunction permitted condemnation of the

fee simple title to leasehold lots, but restrained compulsory arbi-

tration and exclusive use of the valuation formulae provided by the

statute.

6

tion proceedings involving Trustees filed even by this

time.”

Thereafter, HHA and intervenors abandoned even the

very limited abstention argument they had made pre-

viously. Without claiming that abstention was appropri-

ate for any reason, and prior to the filing of any state

court proceedings involving Trustees, they filed motions

for partial summary judgment asking the District Court

to uphold the constitutionality of the statute on the basis

of the legislative findings. Without affording Trustees an

opportunity to present any evidence to the contrary, the

District Court filed its decision upholding the constitu-

tionality of the statute.“ Trustees appealed.

4. No appellant initially argued to the Court of Ap-

peals that abstention was required under any theory; the

Ninth Circuit panel raised this issue on its own during

oral argument (HHA JS App. A30 & n.7 (Poole, J.)).

After requesting and receiving post-argument briefing on

this issue—in which both HHA and Kahala argued that

abstention was unwarranted for any reason and asked the

Court of Appeals to reach the merits of Trustees’ claims

—a majority of the Court of Appeals concluded that ab-

stention would have been improper (HHA JS App. A2-

A4 n. I; id. at A22-A31 (Poole, J.))“ On the merits, the

1 The earliest condemnation suits against Trustees were filed

in September 1979 (HHA JS App. A380 (Poole, J.))

The District Court's decision was embodied in its Amended

Memorandum Decision on December 19, 1979 (HHA JS App. A64

et seq.) Finally, the District Court granted the HHA and inter-

venors’ motion for partial summary judgment, ruling against

Trustees on the remainder of their constitutional claims. Final

Judgment and Permanent Injunction, incorporating all rulings of

the District Court, was entered on June 10, 1980.

18 First, the Court ruled that abstention was unnecessary under

Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941), because in

light of the clear statement of legislative intent in Haw. Rev. Stat.

9516-83 (a) (12), there was no uncertain issue of state law, only

7

court ruled that Chapter 516 violated the Public Use

Clause because the Act did not forward any purpose other

than to transfer land from one party to another, and

this purpose was barred by the Public Use Clause.“

C. The Events Following the Court of Appeals’ Decision.

Following the entry of the court’s decision on March

28, 1983, Trustees sought to stay any further state court

proceedings. At that time, Trustees were faced with the

prospect of entry of judgment, and the consequent,

potentially-irreversible transfer of their property in an

ongoing state court suit begun after Trustees had ob-

tained preliminary injunctive relief from the District

Court. Hawaii Housing Authority v. Midkiff, Civil No.

the question of whether Chapter 516 was constitutional (HHA JS

App. A2-A4 n.1; id. at A23-A24 (Poole, J.)).

Second, Burford v. Sun Oil Co., 319 U.S. 315 (1948), did not

require abstention because Hawaii had not funnelled all condemna-

tion suits (and challenges thereto) into a single specialized court,

and there was no question, inseparable from the federal claims, of

whether the state had authority to effect these condemnations

(HHA JS App. A2-A4 n.1; id. at A24-A25 (Poole, J.))

Third, Younger v. Harris, 401 U.S. 87 (1971), did not require

abstention because there were no state court proceedings pending

at the time the District Court had entered a temporary restraining

order (February 28) and, later, a partial preliminary injunction

(June 8), since HHA did not file its first eminent domain suit

against Trustees in state court until September 1979 (HHA JS

App. A2-A4 n.1). Judge Poole also concuded that the State had

waived any claim that Younger was applicable by failing to invoke

that doctrine in the District Court or Court of Appeals (HHA

JS App. A26-A381).

Finally, Judge Poole concluded that Colorado River Water Cons.

Dist. v. United States, 424 U.S. 800 (1976), was inapplicable because

of the absence of any exceptional circumstances, such as the

McCarran Amendment, favoring state court litigation (HHA JS

App. A25-A26).

1% Because of the Court’s ruling, it did not consider Trustees’

other arguments.

63408 (Haw. Cir. Ct.). Trustees first sought relief in

the state courts, from both the Circuit Court in the above

case, and from the Hawaii Supreme Court, but all efforts

proved futile.“ Trustees also sought an injunction from

the Court of Appeals staying the ongoing state court trial

pending issuance of the mandate. On April 14, the Court

of Appeals declined to enjoin the above state court con-

demnation suit pending issuance of the mandate because

the court was unwilling to “presum[e] that the Courts

of Hawaii under the Supremacy Clause of the United

States Constitution, and in light of this Court’s decision

of March 28, 1983, will fail to discharge their obligation

with respect to the rights of appellants.” Midkiff v. Tom,

No. 80-4368 (Apr. 14, 1983), slip op. at 2. Later events

demonstrated beyond any doubt, however, that this pre-

sumption was unjustified.

The Court of Appeals’ mandate issued on June 27,

1988, and the District Court set a hearing for July 8,

1983, on Trustees’ motion for entry of final judgment,

which the District Court later continued, on HHA’s mo-

tion, until July 15, 1983. On that day, just prior to the

hearing, HHA filed two more condemnation suits involv-

ing an additional 727 of Trustees’ residential subdivi-

sions. By this time, more than 4,000 of Trustees’ lots

were at risk. At the July 15 hearing, Trustees intro-

duced uncontroverted evidence that HHA intended to

proceed with further condemnation suits against their

property as if the Court of Appeals had never issued its

March 28 decision. Moreover, counsel for HHA and

17 See Hawaii Housing Authority v. Midkiff, Civil No. 63408

(Haw. Cir. Ct. Mar. 30, 1983) (oral bench ruling denying Trustees’

motion for a stay); Midkiff v. Grieg, No. 9208 (Haw. Sup. Ct. Apr.

21, 1983) (mem.) (order denying Trustees’ Amended Petition for

a Writ of Prohibition or for Writ of Mandamus and Amended Ex

Parte Motion for Temporary Stay); Hawaii Housing Authority v.

Midkiff, Civil No. 63408 (Haw. Cir. Ct. Apr. 28, 1983) (order

denying Trustees’ Motion to Dismiss or, in the alternative, to

Reconsider Trustees’ Motion to Stay Proceedings).

intervenors conceded that this was their very intent.

Notwithstanding Trustees’ proof, and HHA’s admission,

that appellants fully intended to disregard the Court of

Appeals’ March 28 decision, the District Court denied

Trustees’ motion for a permanent injunction (Transcript

of July 15, 1983, Hearing Before the District Court, at

82-83) .**

Four days later, on July 19, Trustees filed a motion

with the Court of Appeals seeking recall and clarifica-

tion of its June 27 mandate. After receiving further

briefing from the parties, the Court of Appeals, on

August 11, 1983, issued an order recalling its mandate.

Midkiff v. Tom, No. 80-4368, slip op. at 1-2. Observing

that “(t]he district court has indicated uncertainty as

to our intention set forth in the opinion” (id. at 1),

which was the reason its judgment had not been “imple-

mented” (id.), the Court of Appeals recalled its mandate

and set an expedited briefing schedule for the parties to

address the appropriate form of the decree to be issued

(id.). Pending issuance of that revised mandate, the

court enjoined HHA, intervenors, and related parties

from pursuing any ongoing or future condemnation suits

under Chapter 516 (id. at 2).

Without awaiting the issuance of that revised man-

date, appellants sought a stay of the Court of Appeals’

August 11 Order from Justice Rehnquist, acting as Cir-

cuit Justice for the Ninth Circuit. On September 2, he

denied appellants’ application. Hawaii Housing Authority

v. Midkiff, No. A-113 (in Chambers). The Court of Ap-

peals thereafter reset an expedited briefing schedule on

18 The District Court gave two reasons for that ruling. First, it

relied upon HHA’s representation that it would not permit title to

pass in Hawaii Housing Authority v. Midkiff, Civil No. 63408

(Haw. Cir. Ct.). Second, the court relied upon the Court of

Appeals’ decision, handed down on April 14 before the mandate

had issued, declining to award Trustees an injunction pending its

issuance because of the Court of Appeals’ assumption that the

Hawaii state courts would respect its judgment (see page 8, supra).

10

Trustees’ motion to recall and clarify the mandate. No

decision has yet been rendered.

SUMMARY OF ARGUMENT

1. HHA’s and Portlock’s claims that the courts below

should have abstained are untimely, and therefore should

not be considered by this Court. HHA had never claimed

until now that Younger, Burford, or Colorado River

were at all applicable to this case. To the contrary,

HHA explicitly disavowed any reliance upon these doc-

trines before the Court of Appeals, and asked that court

to reach the merits of Trustees’ claims. HHA did in-

voke Pullman in its answer to Trustees’ complaint, but

abandoned that claim thereafter, declining to reassert it

before the Court of Appeals. In fact, HHA also argued,

as it did with respect to the other abstention doctrines,

that Pullman absention was unjustified. Therefore, HHA

should not now be permitted to champion claims that it

expressly disavowed below.

Portlock has also sought to assert abstention claims for

the first time in this Court. Portlock did not claim in

its answer or in its initial brief to the Court of Ap-

peals that absention was appropriate for any reason.

Thereafter, Portlock only claimed that Younger was ap-

plicable in a post-argument brief after the Court of Ap-

peals requested briefs on absention.

2. The Ninth Circuit’s narrow holding that absention

was inappropriate is manifestly correct and does not

warrant further review by this Court. That decision

does not conflict with any decision of this Court or any

other federal court. The court applied well-established

precedent in two comprehensive opinions giving detailed

consideration to all the arguments made below and re-

peated here by appellants. Thereafter, the full Court of

10 Only HHA and Portlock have argued that abstention was

appropriate in this case (HHA JS i, 23-27; Portlock JS i, 20-24).

Kahala has not presented any abstention question, or supporting

argument, in its jurisdictional statement.

11

Appeals denied en banc review. The court’s application

of the law to the unique facts of this case does not war-

rant further review.

(a) Pullman abstention is inappropriate because Chap-

ter 516 clearly identifies takings accomplished there-

under as serving a public use, and therefore no ambiguity

or opportunity for a different interpretation is present.

Younger does not require abstention for several reasons.

Not only did HHA never claim that Younger was ap-

plicable (and, instead, sought a federal judicial decision

on the merits), but the intervenor-lessees do not have

standing to assert this claim. In any event, there were

no pending state court proceedings at the time appellees

filed this suit, or even at the time the District Court is-

sued a temporary restraining order and, later still, a

partial preliminary injunction. By these later points

in time, the District Court had clearly undertaken pro-

ceedings of substance on the merits of Trustees’ federal

claims, and absention under Younger would have been

error. In fact, allowing appellants not only to acquiesce

in federal court jurisdiction but to actively seek a decision

on the merits, and then permitting them to claim that

the federal courts should not have been involved from the

beginning, would create utter chaos in the relations be-

tween federal and state courts.

(b) The Court of Appeals’ conclusions that neither

Burford nor Colorado River required absention not only

are plainiy correct, but also went unchallenged by the dis-

sent below. None of the preconditions for application of

these doctrines is present here, where Trustees asserted

substantial federal constitutional claims (under 42 U.S.C.

§ 1983 (1976 & Supp. V 1981)), rather than rely solely

upon diversity jurisdiction; Trustees have never chal-

lenged HHA’s statutory authority to condemn their land;

there is no specialized court system for resolution of

Chapter 516 questions; and there is no federal statute

exhibiting a special solicitude for state court eminent

domain decisions.

12

ARGUMENT

So as not to unduly burden the Court, Trustees will

not repeat here the Argument already made in their Mo-

tions to Affirm in Nos. 83-141 and 83-283 in regard to

correctness of the ruling below on the constitutionality

of Chapter 516. The Argument is instead incorporated

herein by reference. Trustees will address in this Motion

only appellants’ arguments relating to abstention.

THE COURT OF APPEALS’ NARROW DECISION IS

MANIFESTLY CORRECT AND DOES NOT CON-

FLICT WITH PRIOR DECISIONS OF THIS COURT

OR OTHER CIRCUIT COURTS ON ABSTENTION.

In this case, the Court of Appeals was plainly correct

in concluding that abstention would have been improper

(HHA JS A2-A4 n.1; id. A22-A31 (Poole, J.)). No one

has seriously questioned the Court of Appeals’ judgment

that Pullman and Colorado River are inapposite, and ap-

pellants’ arguments that Burford or Younger abstention

is required must also fail.

A. Pullman.

It is well-settled that Pullman abstention is appropriate

only where a state court resolution of an uncertain

question of state law may moot or substantially alter the

posture of a federal constitutional question.” There is

no uncertain state-law question here. As the Court of

Appeals observed, Haw. Rev. Stat. § 516-83 (a) (12) is

“perfectly clear” and “unambiguously states” that

““Tt}he use of the power to eminent domain [under

Chapter 516] is for a public use and purpose’ * * *”

(HHA JS App. A2-A4 n.1 (quoting § 516-83(a) (12)).

2 E.g., Babbitt v. United Farm Workers Nat'l Union, 442 U.S.

289, 306 (1979); New Motor Vehicle Bd. v. Orrin W. For Co.,

439 U.S. 96, 100 n.3 (1978); Wisconsin v. Constantineau, 400 U.S.

433, 438-439 (1971); Zwickler v. Koota, 389 U.S. 241, 249-251

(1967).

13

No appellant has ever cited any provision of Chapter

516 suggesting that Section 516-83(a)(12) (or (10))

does not mean exactly what it says, or any provision of

that existing Act—rather than ones Hawaii has never

enacted—in any way negating or lessening the plain

language of Section 516-83 (a) (12) (or (10)).2" Accord-

ingly, the Court of Appeals’ conclusion that “there is no

fair construction of this provision that would moot the

federal issue of whether the condemnation is for a pub-

lie use“ (id.; see id. A23-A24 & n.2 (Poole, J.)) is in-

escapable.

Instead, HHA alone argues (HHA JS 24-25) that the

possibility of a state court decision invalidating Chapter

516 on state constitutional grounds requires absention.

But this Court has twice rejected the argument that

Pullman requires abstention, notwithstanding an unam-

biguous state law, simply because of the hypothetical pos-

sibility that state courts might invalidate a state statute

under the state, rather than the federal Constitution.

Examining Board v. Flores de Otero, 426 U.S. 572,

598 (1976) ; Wisconsin v. Constantineau, 400 U.S. at 437-

439. Under the contrary rule, Pullman abstention would

be appropriate in every case because, as HHA admits

(HHA JS 24 & n.61), state courts can always invalidate

state laws on state constitutional grounds, thereby “con-

vert ing] abstention from an exception into a general

21 To the same effect is Haw. Rev. Stat. § 516-83 (a) (10) (“The

State’s acquisition of residential lands held in fee simple, through

the exercise of the power of eminent domain, for the purposes of

this chapter is for the public use and purpose of protecting the

public safety, health and welfare of all people in Hawaii”; HHA

JS App. A139). See also §§ 516-83 (a) (11), (18); §516-83(b);

HHA JS App. A139-140.

22 In fact, any such contention would be plainly inconsistent with

HHA’s insistence that [the legislature concluded * * that the

Act would realize public purposes and put land to public use”

(HHA JS 4; footnote omitted).

14

rule.” Examining Board, 426 U.S. at 598 (footnote

omitted).

Finally, the fact that an Hawaii state court is not

likely either to interpret Chapter 516 in some unique way

or render it unconstitutional under the state Constitution

is borne out by the only state court decision extant on

the subject. This decision, of course, was rendered by

Judge Greig of the Hawaii Circuit Court in Hawaii

Housing Authority v. Midkiff, Civil No. 63408, well after

the trial and appellate proceedings on the merits had been

concluded in the federal courts. But while Judge Greig

disagreed with the Court of Appeals respecting the con-

stitutionality of Chapter 516,% he did not interpret the

statute differently, nor did he find it in conflict with the

Hawaii Constitution. Thus, any argument as to what

the state courts might do with Chapter 516 that would

render the federal courts’ decision moot becomes so spec-

ulative as to lose meaning.”

28 Findings of Fact and Conclusions of Law entered September

6, 1983.

Judge Grieg entirely ignored the Court of Appeals’ opinion.

His findings of fact and conclusions of law contain no reference

whatsoever to the Ninth Circuit’s judgment declaring the con-

demnation provision of Chapter 516 facially unconstitutional, nor

any reference to Trustees’ defense that that judgment was res

judicata upon the federal constitutional issues.

Moreover, none of the reasons given by the dissent in the

Court of Appeals for Pullman abstention can pass muster.

First. The argument that the federal constitutional question

need not be reached if the State can regulate the lessees’ post-

acquisition use of their new leaseholds hypothecates state-court

interpretations of a statute Hawaii has never enacted, and simply

fails to address the particular statute at issue here. No pro-

vision of the ezisting Act so regulates lessees’ post-acquisition use

—a point which was noted by the Court of Appeals majority (see,

e. g., HHA JS App. A17-A18; id. A32-A33, A36 (Poole, J.)) and

not denied by the dissent. Pullman does not require a federal court

15

B. Younger.

There is no Younger issue in this case.

1. First, HHA may not raise any Younger claim at this

late date. HHA has never before argued that Younger

abstention is appropriate—whether to the District Court,

the panel in the Court of Appeals, or the Ninth Circuit

en banc. Therefore, HHA may not raise this issue for the

first time in this Court. Vance v. Universal Amusement

Co., 445 U.S. 308, 315 n.11 (1980) (per curiam) (spe-

cifically applying this rule to Younger).* Application of

that rule is appropriate notwithstanding the state inter-

ests Younger protects. In a parallel context, the Court

has refused to permit the State to protect already-entered

judgments of conviction in criminal cases by invoking

to await a state court interpretation of an as-yet-unenacted state

law before considering a federal constitutional claim.

Second. The “possibility of a constitutional construction of the

statute” referred to by the dissent below (HHA JS App. A48) is

based upon the dissent’s interpretation of the federal Constitution,

not Chapter 516 (id., referring to dissent at A53-A60). A federal

court may not abstain under Pullman, however, simply to give a

state court the first opportunity to rule on a federal constitutional

question. Zwickler v. Koota, 389 U.S. at 250-251 & n.14, and cases

cited therein.

Third. The distinction drawn by the dissent in the Court of

Appeals between cases involving racial or gender discrimination

and land use (HHA JS App. A48-A49) is based entirely upon an

earlier dissenting opinion by the same author (id. at A49), is con-

trary to well-established precedent (e.g., Harrison v. NAACP, 360

U.S. 167 (1959); 17 C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure § 4242, at 465 (1978) (“it is clear that there

is no rule to this effect”) ), and overlooks the fact that the Trustees

too have raised a claim protected by the Fourteenth Amendment.

Vance is simply an application to Younger of the general rule

that a party-appellant may not raise in this Court an issue no.

raised below. E.g., Delta Air Lines, Inc. v. August, 450 U.S. 346,

362 (1981); Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n.2

(1970); R. Stern & E. Gressman, Supreme Court Practice (5th

ed. 1978), p. 457, and cases cited therein.

16

Wainwright v. Sykes, 433 U.S. 72 (1977), for the first

time in this Court. E. g., Estelle v. Smith, 451 U.S. 454,

468 n.12 (1981); Jenkins v. Anderson, 447 U.S. 231, 234

n.1 (1980). 7 It is manifest that the state interests un-

derlying Sykes are equal to, if not greater than (because

of the additional interest in finality), those underlying

Younger. Compare Engle v. Isaac, 456 U.S. 107, 126-128

(1982), and Sykes, 433 U.S. at 89-91, with Younger, 401

U.S. at 43-49. Therefore, requiring HHA to demonstrate

its need for Younger by invoking that doctrine in the

lower federal courts is entirely appropriate.

Equally important, permitting the state to oust a fed-

eral court of jurisdiction after that court has decided the

merits of a party’s claim adversely to the state, will

necessarily entail the same costs to the judicial process

as this Court spoke of in Sykes. In that case, this Court

acknowledged that forcing a state criminal defendant to

assert his federal claims at trial served a variety of in-

stitutional interests: it contributed to the accuracy and

finality of judgments, prevented a party from “ ‘sand-

bagging’” a nisi prius state court by withholding a

potentially dispositive matter until after an adverse judg-

ment, conserved scarce judicial resources, and promoted

respect for the state court judgments entered after a trial

on the merits. 433 U.S. at 88-91. Those considerations

are equally applicable in this parallel context. Permitting

the state to withhold a Younger claim until after losing

on the merits of a federal court’s decision will entail the

same institutional costs this court found unjustified in

Sykes. The only difference is that the federal courts will

suffer the disrespect attendant upon having their judg-

ments set at naught, a distinction that, of course, makes

27 See also Hopkins v. Jarvis, 648 F.2d 981, 983 n.2 (5th Cir.

1981) (state’s failure to contest state prisoner’s alleged exhaustion

of state court remedies constitutes waiver of right to contest ex-

haustion on appeal); Brown v. Fogel, 387 F.2d 692, 695 (4th Cir.

1967), cert. denied, 390 U.S. 1045 (1968) (same).

17

no logical difference in terms of the costs involved, and

one that would belittle the role of federal courts in pro-

tecting federal rights.

There is no question that the state can waive any

claim under Younger (see Kolender v. Lawson, 103 8.

Ct. 1855, 1857 n.3 (1983); Ohio Bureau of Employment

Services v. Hodory, 431 U.S. 471, 480 (1977) ), and there

is no good reason to relieve HHA from its failure to

raise Younger in a timely and proper fashion. In light

of the State’s oft-acknowledged concern that Chapter 516

would be challenged as violating the Public Use require-

ment of the Eminent Domain Clause (as, indeed, the

state itself had once claimed, see note 3, supra), HHA

was well aware of the possibility that a party whose prop-

erty it sought to condemn would challenge the Act on

federal constitutional grounds. In fact, HHA concedes

in its jurisdictional statement that it was well aware of

appellees’ intent to raise that very claim before this suit

was filed (HHA JS 7). Nevertheless, the only abstention

doctrine HHA raised in the District Court was Pullman

abstention; HHA never argued that Younger abstention,

or any other abstention doctrine, was at all applicable

in either its initial or supplemental briefs filed with the

Ninth Circuit; and HHA did not seek rehearing or re-

hearing en banc on the ground that the panel’s decision

not to abstain was incorrect. Permiting HHA to raise

Younger abstention for the first time in this Court in

these circumstances would permit HHA to bushwack any

private party by waiting until it loses on the merits in

federal court before seeking to avoid just such a result.

Because Congress never intended plaintiffs, or the federal

courts, to be subjected to any such gambol, there is no

reason to permit HHA to toy with Trustees or this

Court in that fashion. A ruling in favor of appellants on

this issue would be an open invitation to future litigants

to reserve all abstention arguments until after the result

has been announced in the Court of Appeals and then, if

18

the result is adverse, raise abstention for the first time

in petitions for rehearing or in this Court.

Furthermore, here HHA not only failed to assert

Younger but argued that Younger was inapplicable and

asked the Court of Appeals to reach the merits of Ap-

pellees’ federal claims.“ HHA may not take a contrary

position now. This Court has consistently refused to sanc-

tion such a Janus-faced approach by the government of

lulling the lower federal courts into believing that a po-

tentially dispositive threshold question was not properly

before them, only to turn around and present the con-

trary argument for the first time to this Court. E. g.,

Steagald v. United States, 451 U.S. 204, 208-211 & n.5

(1981); United States v. Ortiz, 422 U.S. 891, 898

(1975). For this reason as well, appellants should not be

permitted to shift positions, as if dancing a quadrille,

to raise any Younger claim now.”

2. Second, none of the intervenors has standing to

raise this claim. The Younger doctrine is built upon an

historic concern for intergovernmental comity and the

traditional reluctance of federal equity courts to enjoin

pending state court judicial proceedings. Younger, 401

U.S. at 48-49; see Middlesex County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 431-432 (1982).

None of these parties, therefore, has any interest inde-

pendent of HHA’s which Younger protects. Accordingly,

because the Court of Appeals’ ruling that Younger is in-

applicable does not affect any right of any member of this

28 See Supplemental Brief for Defendants-Appellees in the Court

of Appeals (State Parties; filed Oct. 28, 1981), pp. 2-7.

In fact, because HHA argued to the Court of Appeals that

abstention was inappropriate on any ground (see, e.g., Supplemental

Brief for Defendants-Appellees in the Court of Appeals (State

Parties; filed Oct. 28, 1981), p. 2), HHA may not now contend that

abstention is appropriate under Burford, Pullman, or Colorado

River as wel.

19

class of parties, none hes standing to assert this claim.

H.L. v. Matheson, 450 U.S. 398, 406 (1981); Harris v.

McRae, 448 U.S. 297, 320 (1980); Warth v. Seldin, 422

U.S. 490, 498-499 (1975). Furthermore, private parties

may not champion Younger claims over the state’s desire

to obtain a federal court decision on the merits. See Ohio

Bureau of Employment Services v. Hodory, 431 U.S. at

480. Because HHA plainly waived any Younger claim

in this case, none of the intervenor-appellants may now

raise any such claim.”

3. Third, this case does not present the issue of

whether Younger is applicable to state court condemna-

tion proceedings. To begin with, not only did HHA fail

to raise this issue below, but the Court of Appeals found

(HHA JS App. A4-A6 n.1) that there was no ongoing

state judicial proceedings at the time this suit was filed.™

Moreover, none of the intervenor-appellant organizations has

standing to raise a Younger claim on behalf of its members. The

only exception potentially applicable here to the rule that a party

must assert his own legal rights and interests, and not those of an-

other, to demonstrate standing (e.g., Valley Forge Christian Col-

lege v. Americans United for Separation of Church and State Inc.,

454 U.S. 464, 474 (1982)), would lie only if the intervenor-

appellants could satisfy the three-part test in Hunt v. Washington

State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977), for an

organization to have standing to represent its members. But all of

the intervenor-appellant organizations fail that test because, based

upon the pleadings in this case, none can fulfill the first two parts

of the Hunt test: namely, that (1) their individual members would

have standing in their own right (for the reasons given in the

text), or (2) the interests furthered by Younger are germane to

the organization’s purpose. 432 U.S. at 343.

21 That factual conclusion is also a complete answer to Portlock’s

suggestion (Portlock JS 21-23) that the decision below conflicts

with Ahrenfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975). In

that case, state court condemnation proceedings were pending at

the time the plaintiff filed suit in federal court. 528 F.2d at 195.

HHA, by contrast, candidly acknowledges this difference between

this case and Ahrensfeld (HHA JS 26), and has not suggested

that the two decisions conflict.

20

That finding was plainly correct: Trustees filed this suit

on February 28, 1979, and HHA did not file its first

suit to condemn Trustees’ property that went to judg-

ment until November 10, 1980, over a year later. In-

deed, HHA expressly acknowledged in the Court of Ap-

peals that “no state proceeding under the disputed statute

involving the Trustees and HHA was pending at the time

of the filing of Trustees action * * *” (Supplemental

Brief for Defendants-Appellees in the Court of Appeals

(State Parties; filed Oct. 28, 1981) p. 4). Younger was

therefore no bar to this suit. Steffel v. Thompson, 415

U.S. 452, 462-463 (1974).

Moreover, there were still no ongoing state judicial

proceedings at the time the District Court granted a

temporary restraining order and, later, a partial prelim-

inary injunction (HHA JS App. A2-A4 n.1; id. A30

(Poole, J.)). By that point, “proceedings of substance

on the merits ha[d] taken place in the federal court”

(Hicks v. Miranda, 422 U.S. 332, 349 (1975)), and,

therefore, Younger was no bar to this suit. See also

Doran v. Salem Inn, Inc., 422 U.S. 922, 930-931 (1975).

HHA, again, acknowledged this fact before the Court of

Appeals: “no such state proceeding [“under the disputed

statute involving the Trustees and HHA”] was com-

menced before proceedings of substance on the merit [sic]

took place in the District Court below” (Supplemental

Brief for Defendants-Appellees in the Court of Appeals,

pp. 4-5). Actions thereafter filed in state court do not

require Younger abstention. Town of Lockport v. Citizens

for Community Action, 430 U.S. 259, 264 n.8 (1977).

* HHA’s suggestion (HHA JS 26) that Younger should be

extended to state administrative proceedings is inconsistent with

Chapter 516, which expressly provides that administrative pro-

ceedings antedating the filing of a state court condemnation suit

“shall be in advance of and shall not constitute any part of any

advance of and shall not constitute any part of any action in con-

demnation or eminent domain” (§ 516-51 (b); HHA JS A131-A132;

see page 3, supra). HHA’s claim is also inconsistent with this

21

4. Finally, Trustees submit that, regardless of which

date is determinative for Younger purposes, that doctrine

is inapplicable to privately-initiated condemnation suits

like those authorized by Chapter 516. In this regard, we

agree with HHA’s conclusion that “the statute involved

does not appear to be the kind of statute deemed to be ‘in

aid of and closely related to criminal] statutes’ as to jus-

tify the application of the [Younger] abstention doctrine

to the instant civil ease“ (Supplemental Brief for De-

fendants-Appellees, p. 5). The Court of Appeals ruled

that Chapter 516 simply transferred one private party’s

property to another, a ruling we have argued in our Mo-

tions to be plainly correct. The question of whether Chap-

ter 516 embodies important state interests of the type

Younger would protect is therefore at issue on the merits

Court’s decision last Term in Patsy v. Board of Regents, 457 U.S.

496 (1982). Patsy held that a party need not exhaust state admin-

istrative remedies before bringing a suit in federal court under

42 U.S.C. § 1983 (as the Trustees did in this case), and further

ruled that Congress had codified this principle in the Civil Rights

of Institutionalized Persons Act (“CRIP”), 42 U.S.C. § 1997 et seq.

(Supp. V 1981). The only exception to that rule is expressly lim-

ited to Section 1983 actions brought by an adult convicted of a

crime. 42 U.S.C. § 1997e(a) (1).

In that vein, whether Younger should be extended to state

administrative proceedings must also necessarily hinge upon factors

such as a party’s ability to present his federal claims to that

agency, the agency’s authority to consider such claims and afford

complete relief, the deference and respect that the state itself

accords to its agency’s factual findings and legal conclusions, the

degree to which the particular agency is independent of the execu-

tive branch, and a host of other factors, such as those governing

the appropriateness of requiring exhaustion of administrative

remedies. See generally McKart v. United States, 395 U.S. 185,

193-195 (1969). HHA admits that “not all administrative pro-

ceedings are necessarily equivalent to judicial proceedings for

Younger purposes” (HHA JS 26; emphasis in original). Because

none of these matters was explored below, resolution of the larger

issue of the extension of Younger to state administrative proceed-

ings should await a case in which these matters have first been

considered by the lower federal courts.

22

of this case. For the reasons given in our other Motions,

therefore, Chapter 516 does not implicate state interests

of the type Younger would protect.

C. Burford.

The Court of Appeals’ conclusion that Burford is inap-

plicable not only is fully consistent with this Court’s de-

cisions, and not in conflict with the decision of any other

Court of Appeals, but did not even evoke comment from

the dissent. Contrary to appellants’ contentions, this

Court has ruled that Burford does not require absten-

tion simply because eminent domain proceedings are in-

volved. County of Allegheny v. Frank Mashuda Co.,

360 U.S. 185, 188-189 (1959). This Court has never

suggested that Burford requires abstention in a case

like this in which (a) plaintiff has raised substantial fed-

eral constitutional claims, including claims under 42

U.S.C. § 1983, rather than simply relied upon diversity

jurisdiction; (b) plaintiff’s federal Constitutional claims

are severable from any question of whether, under state

law, the state is authorized to condemn Trustees’ prop-

erty, (c) resolution of that federal claim will not frus-

trate state policy beyond that demanded by the federal

Constitution, and (d) the state has not established a

specialized court to entertain all suits challenging the

agency’s actions. Colorado River, 424 U.S. at 814-815

& n.21; Frank Mashuda, supra; Louisiana Power &

Light Co. v. City of Thibodaux, 360 U.S. 25 (1959);

Alabama Public Service Comm’n v. Southern Ry. Co.,

341 U.S. 341 (1951) ; Burford, supra.

D. Colorado River.

Finally, Portlock alone argues, for the first time, that

Colorado River abstention is justified for reasons of judi-

cial administration and because a state court decision on

the merits of Trustees’ claims would be entitled to respect

(Portlock JS 21). Portlock did not raise this claim below,

however, and therefore may not raise it here. In any

event, the Court of Appeals’ conclusion that Colorado

23

River was inapposite—a conclusion to which the dissent

below did not object—is plainly correct and does not con-

flict with any decision of this Court or any other Court of

Appeals. To the contrary, the decision below is fully con-

sistent with Colorado River and with two more recent

decisions of this Court applying this doctrine: Arizona v.

San Carlos Apache Tribe, 103 S. Ct. 3201 (1983), and

Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,

103 S. Ct. 927 (1983)." Further review of this newly-

asserted claim is therefore unwarranted.

* Relying chiefly upon the McCarran Amendment (43 U.S.C.

§ 666 (1976)), a federal statute expressly approving of state court

adjudication of comprehensive water rights disputes, Colorado River

held that abstention in favor of state court adjudication of a massive

(over 1,000 defendants) water rights dispute was appropriate on

the facts of that case. See also San Carlos, supra. But, because

“water rights adjudication is a virtually unique type of proceeding,

and the McCarran Amendment is a virtually unique federal statute”

(San Carlos, 103 S. Ct. at 3216), the abstention doctrine articu-

lated in that case is limited to the peculiar circumstances respecting

that type of problem. See Moses H. Cone, supra. Furthermore,

none of the reasons given in Colorado River or San Carlos for

abstention are applicable here.

First, this Court has on three occasions ruled that by far the

most important factor in determining whether Colorado River

abstention is appropriate was the presence of the McCarran Amend-

ment, a federal statute approving of state court adjudication as a

means of avoiding piecemeal litigation. San Carlos, 103 S. Ct.

3215; Moses H. Cone, 103 S. Ct. at 987; Colorado River, 424 U.S.

at 820. There is no comparable federal statute here. Second, here,

as in Moses H. Cone, and unlike in Colorado River and San Carlos,

federal law will provide the basis for decision. Third, abstaining

now on this basis would plainly be more, rather than less, efficient

as a matter of judicial administration, because far more has taken

place in federal court than the mere filing of a complaint, as was

the case in Colorado River. 424 U.S. at 820 & n.25; see San Carlos,

108 S. Ct. at 3206 n.3; Moses H. Cone, 108 S. Ct. at 936. Fourth, the

federal suit piainly preceded any state court suit. See Moses H.

Cone, 103 S. Ct. at 939-941. Appellees also brought suit in federal

court as promptly as possible (pages 4-5, supra). Fifth, the federal

suit in no way approached the massive size of the Colorado River

suit. See 424 U.S. at 820. Finally, Portlock has not suggested that

the site of the federal courthouse was in any way inconvenient for

24

CONCLUSION

For the foregoing reasons and for the reasons given in

our Motions to Affirm in Nos. 83-141 and 83-283, the

judgment of the Court of Appeals should be affirmed.

Should this Court instead note probable jurisdiction, the

Court should do so only with respect to the Public Use

Clause question presented by appellants, for the above

reasons regarding abstention.“

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.“

PAUL J. LARKIN, JR.

B. EVAN Bayu, III

HoGAN & HARTSON

(a partnership including

professional corporations)

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

CLINTON R. ASHFORD

ROSEMARY T. FAZIO

ASHFORD & WRISTON

235 Queen Street

P.O. Box 131

Honolulu, Hawaii 96810

(808) 524-4787

G. RICHARD MORRY

Ear. T. SATO

HAMILTON, GIBSON,

NICKELSEN, RUSH & MOORE

20th Floor

Hawaii Building

745 Fort Street

Honolulu, Hawaii 96818

(808) 521-0400

Counsel for Appellees

* Counsel of Record

the parties. San Carlos, 108 S. Ct. at 3206 & n.3; Moses H. Cone, 103

S. Ct. at 989; Colorado River, 424 U.S. at 820. None of the reasons

for abstention suggested by Portlock (Portlock JS 23-24) are

apposite.

* Trustees, of course, would raise the other bases for affirmance

identified at pages ii-iii, swpra, should this Court decide to give

plenary consideration to the case.