Opposition Brief — Old Vail Partners v. County of Riverside

Supreme Cour

No. 97-135

In The a

Supreme Court Of Che Anited States

OCTOBER TERM 1996

>

OLD VAIL PARTNERS,

Petitioner,

COUNTY OF RIVERSIDE; CITY OF TEMECULA,

Respondents.

o—

On Petition For Writ of Certiorari To The

United States Court of Appeais For The Ninth Circuit

+

RESPONDENT, CITY OF TEMECULA’S

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

= 2

PETER M. THORSON

CITY ATTORNEY

MITCHELL E. ABBOTT*

STEVEN R. ORR

ROBERT A. BALBUENA

RICHARDS, WATSON & GERSHON

A Professional Corporation

333 South Hope Street

Thirty-Eighth Floor

Los Angeles, CA 90071

(213) 626-8484

Counsel for Respondent *Counsel of Record

City of Temecula

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTION PRESENTED

Whether the Court of Appeals erred in ordering

abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971) where Petitioner prosecutes an

identical inverse condemnation action in state court.

a es ey eee rete: <_* Rem

Peres a

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............::.ccccccccssocscccccsssoeeee i

TABLE OF AUTHORITIES ...............cc.cccsscccessecooeeece. iv

RESPONDENT'S BRIEF IN OPPOSITION ................... l

STATEMENT OF THE CASE ..............ccccccecccsecceecees 2

REASONS WHY A WRIT OF CERTIORARI

SHIOULD BE DENIED ..........cccsccessccccccccccccccscccsesess 10

I. THE COURT OF APPEALS DID NOT

ERR IN ORDERING ABSTENTION

BS re 10

Il. OLD VAIL'S CLAIMS ARE

WITHOUT MERIT AND SHOULD

BE SUMMARILY DENIED................... 14

A. Petitioner Mistakenly Assumes

That It Is Guaranteed a Federal

Forum as a Matter of

Constitutional Right.................... 14

B. California Courts Present an

Appropriate Forum in Which to

Adjudicate Petitioner's Federal

ANEURIN

C. The Court of Appeals Fully

Considered and Correctly

Decided That Petitioner's

Federal Action Should Be

Dismissed on Younger

i ietieitcsdcnesinacscccscncscoceses 21

Il. ABSTAINING UNDER YOUNGER

DOES NOT CONFLICT WITH

PRECEDENT OF THE NINTH

- ie eee

eee ee a we th

iV

Cases cited: Page

Beltran v. California,

7 big Us BF EDrpErrIrTT 22

C-Y Development Co. v. City of Redlands,

Fy Ges BOD ccncccscccvccsvccsccccccnscoes 9

Colorado River Water Conservation Dist. v.

United States,

424 U.S. 800, 96 S.Ct. 1236,

A ec don evendsseseecessseseseccesooeress 13

County of Allegheny v. Frank Mashuda Co. ,

360 U.S. 185, 3 L.Ed.2d 1163,

TD B.C, LOGS FGI severeveccccsccccccsesccccccecscvscsees 9

Crawley v. Hamilton County Commissioners,

Fe ete BO He GE BOW vo cecccsccnccoccccccscvsseeses 28

Ellison v. County of Ventura,

217 Cal.App.3d 455, 265 Cal.Rptr.

FRE CEPT iadiveresdedcicedesesccetessccesccoscscscsscosesess 17

First English Evangelical Lutheran Church v

County of Los Angeles,

210 Cal.App.3d 1353, 258 Cal.Rptr.

FP aah cbades cccnssasovessvensccovecc.cescvccconsees 17

First Lutheran Church v. County of Los Angeles,

482 U.S. 304, 10 S.Ct. 2378,

FB ER Ee CAPE ccwsccccccesecrcccccccccesscsccsses 16

TT RO FEES

ENE OES Tate

Franchise Tax Bd. v. Construction Laborers

Vacation Trust,

463 U.S. 1, 103 S.Ct. 2841,

Fe RE I CEE oe cinececnecccncescocceccsccceccseces 15

Fresh Int'l Corp. v. Agricultural Labor

Relations Bad.,

805 F.2d 1353 (9th Cir. 1986)...............08. 19-20, 22

Furey v. City of Sacramento,

592 F.Supp. 463 (N.D.Cal. 1984) ..............0.. 25, 26

Gilbert v. State of California,

218 Cal.App.3d 234, 266 Cal.Rptr.

Br iletietaKiaitettacerssksnveserecesescesccccocsscese’ 16

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229, 104 S.Ct. 2321,

Pe BN Be GEM ED orenstsesccscsscsccccssssssecsscons 25

Hensler v. City of Glendale,

8 Cal.4th 1, 32 Cal.Rptr.2d 244

SP ctebrbtierteiesaniesssiscorsisntovesssonscucevee 16

HFH, Ltd. v. Superior Court,

15 Cal.3d 508, 125 Cal.Rptr. 365

(1975), cert. denied, 425 U.S. 904 (1976) ............ 16

Juidice v. Vail, .

430 U.S. 327, 97 S.Ct. 1211,

I anes 20

Kollsman v. City of Los Angeles,

Fe Se HE Gs BO cccccscncstcrsccvesscivesscess 8

vi

Lockerty v. Phillips,

319 U.S. 182, 63 S.Ct. 1019,

a 15

Long Beach Equities, Inc. v. County of

Ventura,

231 Cal.App.3d 1016, 282 Cal.Rptr.

eer IR Iadllini cick becdecndsnsbeonisbsssaccscncassocences 14

MacDonald, Sommer & Grates v. County of

Yolo,

477 U.S. 340, 106 S.Ct. 2561,

Se eho cnsccsccecscnsccencedcoccaceves 14

Middlesex County Ethics Comm. v. Garden

State Bar Ass'n,

457 U.S. 423, 102 S.Ct. 2515,

73 L.Ed.2d 116 (1982)................. 12, 22, 24, 27, 28

Mission Oaks Mobile Home Park v. City of

Hollister,

989 F.2d 359 (9th Cir. 1993),

cert. denied,

PE SE BOO GED cescecccssececevesesesesess 12, 19, 28

Ohio Civil Rights Commission v. Dayton

Christian Schools, Inc..,

477 U.S. 619, 106 S.Ct. 2718,

Oe I cnccccsacicetsssncacestlgsusonseces 18

Palmore v. United States,

411 U.S. 389, 93 S.Ct. 1670,

er ET SE CFP ekki acsiisisiccasatncrciaricacansss 15

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 107 S.Ct. 1519,

EEE ET 12, 19

Polykoff v. Collins,

816 F.2d 1326 (9th Cir. 1987)..........ccccccceeceeeeee 25

Railroad Commission of Texas v.

Pullman Co.,

312 U.S. 496, 61 S.Ct. 642,

85 L.Ed.2d 971 (1941).......... 8, 10-12, 18, 23, 25-27

Sinclair Oil Corp. v. County of Santa

Barbara,

Pee Gs BID non. ccccccccccccsccneccccesess 26

Varjabedian v. City of Madera,

20 Cal.3d 285, 142 Cal.Rptr. 429 (1977).............. 16

Williamson County Regional Planning

Comm'n v. Hamilton Bank,

473 U.S. 172, 105 S.Ct. 3108,

Ne... sceccecceccces 7

Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746,

27 L.Ed.2d 669 (1971)... i, 8, 10-11, 13, 17-25, 27-28

Statutes Cited:

United States Constitution, Article III,

Viii

re i 7,15

OO RO 15

ote TT a 2,6

42 U.S.C. Section 1985 ...............ccsccccccsseccossssocoeeees 2,6

Federal Rule of Civil Procedure 12(b)(1) .................c0000--. 7

Federal Rule of Civil Procedure 12(b)(6) .............cccceceee0-. 7

EEE AR NERP UROL ne aT oe 2

California Streets & Highways Code

SE WUE, OPIN cncccccccsccnssoccncceccccnevecesesees 3

RESPONDENT'S BRIEF IN OPPOSITION

Respondent City of Temecula, California ("City" or

"Temecula"), hereby opposes Petitioner Old Vail Partners'

("Old Vail") petition for writ of certiorari seeking review of

the judgment and opinion of the United States Court of

Appeals for the Ninth Circuit entered on March 10, 1997. The

Court of Appeals correctly decided that the District Court

should abstain from hearing Old Vail's federal action under the

Younger abstention doctrine inasmuch as Petitioner presently

maintains an identical action in state court. While important to

Petitioner, this case does not raise special or important issues

of federal statutory or constitutional law warranting review by

this Court. For these reasons and those set forth below, Old

Vail's petition should be summarily denied.

STATEMENT OF THE CASE

Through identical state and federal actions below,

Petitioner challenges the propriety of a local special tax and the

City of Temecula's zoning authority, and contends that the

application of that tax and zoning inversely condemns its

property. Petitioner, therefore, seeks money damages from

the City of Temecula, pursuant to 42 U.S.C. §§ 1983 & 1985,

for violation of rights guaranteed under the Fifth Amendment

and Article 1, section 19 of the California Constitution. '

' In that regard, the Fifth Amendment to the United States

Constitution provides:

", . . nor shall private property be taken for

public use, without just compensation."

The parallel provision of the California Constitution (Art. 1,

sec. 19) provides:

"Private property may be taken or damaged for

public use only when just compensation . . . has first

Leen paid to, or into court for, the owner."

Petitioner owns 39.8 acres of unimproved property in

the City of Temecula ("the Property"). A year before

Petitioner purchased the land, the County of Riverside

("County"), acting pursuant to the Municipal Improvement Act

of 1913, as codified, California Streets & Highways Code §§

10000, et seg., formed Special Assessment District AD 159 to

finance numerous public improvements within that special

district.

The Property is located within AD 159, and

consequently, the County levied an assessment on the Property

for a proportionate share of the costs of the public

improvements. The County thereafter recorded a lien against

the Property to secure payment of the assessment in

accordance with California law.

Old Vail purchased the Property on November 21,

1989. At the time, the land was located in an unincorporated

section of the County. The local voters, however, had

previously approved incorporating the City of Temecula

within the County, and on December 1, 1989, Petitioner's land

became part of the newly-incorporated City of Temecula.

As County land, the Property was zoned for

"commercial" use. The City maintained the County's land use

designations for a period of four years. On November 9,

1993, the City adopted its General Plan which designated the

real property adjoining California State Highway 79, one of

the City's major thoroughfares, for "office professional" use.

Petitioner's land adjoins that highway and thus became zoned

for "office professional" use.

At the same time, the City Council adopted the Land

Use Element of the General Plan, which identified the

Property as part of "Future Specific Plan Areas Z2 and Z;3"

and within a "commercial specific plan overlay." This

designation permits office professional uses as a matter of

right, and further contemplates a wide range of other forms of

commercial development, subject to Planning Commission

approval. Such an approach affords the City a measure of

control over commercial development along its major

thoroughfares.

Even though it mever submitted a commercial develop-

ment plan for approval, Petitioner alleges that the City "down-

zoned" the Property, and thereby completely destroyed its

economic viability. Without first exhausting available

administrative remedies, Old Vail filed concurrent complaints

in the Superior Court of the State of California for the County

of Riverside and the United States District Court for the

Central District of California. Through nearly identical

pleadings, Petitioner alleges, inter alia, that Temecula has

effected a "taking" in violation of the Constitutions of the

United States and the State of California.

The gravamen of both lawsuits is that the assessments

levied on the Property prior to the City's incorporation were

based on its use for "commercial" purposes, and that the

City's subsequent alleged down-zoning to "other professional"

office use renders any economically viable use of the property

impossible.

The State Action -- Old Vail seeks to recover

damages from the City under the theory of inverse

condemnation (RCSC Case No. 253598). Old Vail predicates

its claims on the state and federal constitutions.” On February

23, 1996, the court granted the City’s motion for judgment on

the pleadings. Old Vail appealed from the resulting judgment.

That appeal is pending in the Court of Appeal for the State of

’ California, Fourth Appellate District (4th Civ. No. E016793).

The Federal Action -- Old Vail filed an identical

action in federal court. Upon the City's motion to dismiss,

2 Old Vail characterizes its federal claims as "aris[ing]

under the Federal Civil Rights Act, inter alia, 42 U.S.C.

§1983 and §1985, to redress the deprivation, under color of

state law, or rights, privileges and immunities secured to

plaintiffs by the Constitution of the United States." (State

Court Complaint at 9).

brought pursuant to Federal Rule of Civil Procedure 12(b)(1)

and 12(b)(6), the District Court dismissed Old Vail's complaint

on two grounds. First, it held that the Tax Injunction Act of

1937, as codified, 28 U.S.C. §1341, precluded federal

jurisdiction over Old Vail's complaint because it challenged a

locally imposed tax. Second, the District Court determined

that the complaint was not ripe for federal judicial review

because Old Vail could not make the requisite allegation that it

had unsuccessfully attempted to obtain just compensation.”

The order of dismissal was entered on November 9, 1994.

Petitioner timely moved for reconsideration of the

order granting the City's motion. The District Court denied

that motion on the basis that Petitioner failed to present any

new grounds warranting reconsideration of the prior order,

3 See, e.g., Williamson County Regional Planning

Comm'n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct.

3108, 87 L.Ed.2d 126 (1985).

which had been the subject of thorough briefing and argument

by the parties. The order denying reconsideration was entered

on January 10, 1996.

Petitioner thereafter appealed to the Court of Appeals

on February 10, 1997. Following briefing and argument, the

Court of Appeals issued a decision vacating the judgment and

remanding the case to the District Court with an order to

abstain from exercising federal jurisdiction under Younger v.

Harris, 401 U.S. 37, 91 §.Ct. 746, 27 L.Ed.2d 669 (1971)

("Younger"). ,

On February 21, 1997, Old Vail petitioned for

rehearing. In its petition, Old Vail requested that the order of

abstention be made under Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496, 61 S.Ct. 642, 85 L.Ed.2d 971

(1941) ("Pullman") rather than Younger." On March 10,

“ As the Court of Appeals explained in Kollsman v. City of

Los Angeles, 737 F.2d 830, 833 (9th Cir. 1984): "Pullman

allows postponement of the exercise of federal jurisdiction

1997, the Ninth Circuit denied Old Vail's petition for

rehearing. On remand, the District Court dismissed Old Vail's

complaint without prejudice on July 3, 1997.

Old Vail filed the instant petition for writ of certiorari

on July 22, 1997. As set forth below, the issues presented in

this case do not warrant review by the United States Supreme

Court through a writ of certiorari, and the petition should be

summarily denied.

when ‘a federal constitutional issue . . . might be mooted or

presented in a different posture by a state court determination

of pertinent state law.' C-Y Development Co. v. City of

Redlands, 703 F.2d 375, 377 (9th Cir. 1983) (quoting County

of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 3

L.Ed.2d 1163, 79 S.Ct. 1060 (1959))."

10

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE DENIED

I.

THE COURT OF APPEALS DID NOT ERR IN

ORDERING ABSTENTION UNDER YOUNGER

Seeking to pique the Court's interest, Petitioner

dramatically insists that abstaining under Younger inequitably

precludes an inverse condemnation litigant from ever

adjudicating takings claims in federal court (Pet. at 8), and that

this petition presents the Court with the opportunity to review

when and whether the federal courts should apply the Younger

and Pullman abstention doctrines. In so doing, Petitioner,

however, nowhere contends that it cannot obtain a fair hearing

in the California state courts, or that California's courts are

somehow not able to adjudicate Petitioner's garden-variety

inverse condemnation claims, or that it has been denied the

opportunity to litigate its federal claims fully and completely in

11

the forum of its own choosing.

Old Vail does not challenge the propriety of federal

abstention. Instead, it is unhappy with the Court of Appeals’

decision to order abstention under Younger, rather than

Pullman. Old Vail therefore seeks a writ of certiorari to

preserve its opportunity to relitigate its takings claim in federal

court should the City prevail in the state court proceedings

initiated by Petitioner.

The petition should be denied for one simple reason:

The Court of Appeals decided correctly to abstain under

Younger, given the facts and circumstances presented in this

case. The Court of Appeals accurately perceived and applied

the strong policy of avoiding federal interference in pending

state proceedings enforcing state public policy, absent

extraordinary circumstances (not presented herein), to Old

Vail's claim that Temecula's change in zoning of property

located within a special assessment district, created under

12

California law, constitutes a taking without just compensation.

See Mission Oaks Mobile Home Park v. City of Hollister,

989 F.2d 359, 360 (9th Cir. 1993), cert. denied, 510 U.S.

1110 (1994), quoting Middlesex County Ethics Comm. v.

Garden State Bar Ass'n, 457 U.S. 423, 431, 102 S.Ct. 2515,

73 L.Ed.2d 116 (1982). The Court of Appeals also correctly

applied decisions conclusively holding that federal claims are

appropriately adjudicated in state proceedings. See Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987) (state courts presumed adequate forums to

raise federal claims "in the absence of unambiguous authority

to the contrary"); Mission Oaks, 989 F.2d at 361 (finding

California state courts "provide ... an adequate opportunity to

raise federal questions."). Moreover, Petitioner's claims do

not involve unsettled questions of state law warranting

Pullman abstention.

13

Younger and its progeny implement traditional

concepts of equity requiring federal courts to refrain from

acting where there exists an adequate remedy at law and

where the petitioning party is not threatened with irreparabie

injury (Younger, 401 U.S. at 43-44). The Younger doctrine

further serves to prevent a multiplicity of suits where a single

action will adequately protect the rights asserted. Most

importantly, by acknowledging the fundamental competency

of state courts to adjudicate federal issues, the Younger

doctrine furthers vital interests of comity which is at the heart

of "Our Federalism."”

As the Court of Appeals correctly directed the District

Court to abstain under Younger, the Court should summarily

deny Old Vail's petition for writ of certiorari.

5 Younger, as well as the other doctrines of abstention,

is an exception to the general rule that federal courts should

exercise the jurisdiction conferred on them by statute. See

Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).

14

Il.

OLD VAIL'S CLAIMS ARE WITHOUT MERIT

AND SHOULD BE SUMMARILY DENIED

A. Petitioner Mistakenly Assumes That It Is

Guaranteed a Federal Forum as a Matter of

Constitutional Right

Old Vail seeks to recover damages from the City of

Temecula on a theory of inverse condemnation. That theory of

liability, of course, exists under both California and federal

law. See Long Beach Equities, Inc. v. County of Ventura,

231 Cal.App.3d 1016, 282 Cal.Rptr. 877 (1991); cert. denied,

505 U.S. 1219 (1992); MacDonald, Sommer & Grates v.

County of Yolo, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d

285 (1986). Even though it predicates its claims, in part, on

the federal Constitution, Old Vail is not guaranteed a federal

forum as a matter of constitutional right. The settled rule is

that Congress is not obliged to provide that a federal claim be

15

litigated in a federal district court. See Palmore v. United

States, 411 U.S. 389, 400-401, 93 S.Ct. 1670, 36 L.Ed.2d

342 (1973); Lockerty v. Phillips, 319 U.S. 182, 187-89, 63

S.Ct. 1019, 87 L.Ed. 1339 (1943). Acting under its

constitutional authority to legislate the scope of district court

jurisdiction (United States Const., Art. III, §1), Congress may

and often does remit federal claims to the state courts. See,

e.g., Franchise Tax Bd. v. Construction Laborers Vacation

Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983);

28 U.S.C. §1341; 28 U.S.C. §1342.

Old Vail fails to offer any authority, case law or

statutory, to support its underlying contention that it is entitled

to adjudicate its federal claims in a federal court. The reason

for its failure is manifest: there is no such right in cases such

as the one at bar. California courts regularly, and quite

competently, adjudicate issues of federal law, and the policy of

comity militates in favor of acknowledging California's ability

16

to determine whether Old Vail's property was inversely

condemned by the City of Temecula's zoning decision.°

® California courts regularly adjudicate federal

constitutional claims. See, e.g., Hensler v. City of Glendale,

8 Cal.4th 1, 32 Cal.Rptr.2d 244 (1994); Varjabedian v. City

of Madera, 20 Cal.3d 285, 142 Cal.Rptr. 429 (1977); HFH,

Lid. v. Superior Court, 15 Cal.3d 508, 125 Cal.Rptr. 365

(1975), cert. « ied, 425 U.S. 904 (1976). In Gilbert v. State

of California, 218 Cal.App.3d 234, 253, 266 Cal.Rptr. 891

(1990) the California Court of Appeal explained:

"California cases frequently do not identify whether the

inverse condemnation action is brought under state or

federal law, or both, and in any event often discuss

federal precedent in deciding state inverse

condemnation claims. The recent litigation in First

Lutheran Church v. Los Angeles County, supra, 482

U.S. 304, represents the most startling, wholesale

adoption of federal precedent to resolve a state

constitutional claim. The lawsuit began solely as a

state cause of action. The United States Supreme

Court, however, was able to devise a federal question

from the church's arguments before the state Court of

Appeal. The church asserted recent federal decisions

demonstrated federal constitutional error in the

California Supreme Court's decision in Agins I. Since

the Court of Appeal applied Agins J to dismiss the

church's action, thus rejecting the federal claim, the

high court concluded the church preserved a federal

question on appeal. On remand to determine whether

the county's action amounted to an unconstitutional

taking, the Court of Appeal for all practical purposes

17

B. California Courts Present an Appropriate

Forum in Which to Adjudicate Petitioner's

Federal Takings Claim

Old Vail contends that abstaining under Younger

forecloses its opportunity to litigate its federal claims in a

federal forum (Pet. at 10, 27-29). Such a concern is

necessarily predicated on Old Vail's apparent anxiety that the

California state courts will not adequately adjudicate its federal

claims, or be in a position to deal with the "synergistic effects"

(Pet. at 23) of zoning ordinances affecting specially assessed

property.

analyzed the taking claim entirely on the basis of

federal decisional law applying and construing the Fifth

Amendment. (First English Evangelical Lutheran

Church v. County of Los Angeles (1989) 210

Cal. App.3d 1353 [258 Cal.Rptr. 893]; see also Ellison

v. County of Ventura (1990) 217 Cal.App.3d 455 [265

Cal.Rptr. 795] [using Agins IT to resolve state inverse

condemnation claim]."

18

However, Old Vail nowhere contends that it has been

(or will be) denied the opportunity to litigate its federal claims

in California state court. Instead, Petitioner, through a mere

ipse dixit, seeks a free insurance policy against defeat in the

state courts in the form of Pullman stay. While such an

outcome would expand Old Vail’s tactical options and please

its attorneys, the Constitution does not guarantee Old Vail

access to a federal forum in the event of a disagreeable

outcome in the state forum on the very same claims. The

Younger doctrine appropriately serves, among other ‘dian

to prevent such multiplicity of suits where a single action will

adequately protect the rights asserted.’

The federal courts have conclusively determined that

federal claims may be adequately adjudicated in the state

” In fact, Old Vail need only have the opportunity to assert

its federal claims in state court to satisfy Younger's concerns.

Whether or not it avails itself of that opportunity is irrelevant.

See, e.g., Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc. , 477 U.S. 619, 106 S.Ct. 2718, 2724, 91

L.Ed.2d 512 (1986).

19

proceedings. See Pennzoil, 481 U.S. at 15-17. In Mission

Oaks, 989 F.2d 359, for example, plaintiff filed suit in state

court to challenge the constitutionality of a rent control

ordinance. When the plaintiff filed in federal district court a

year later, the court dismissed the action on the basis of

Younger. The Court of Appeals affirmed the dismissal,

concluding that Younger applies to claims challenging rent

control ordinances as regulatory takings. In so doing, the

Court of Appeals explained:

"[W]e refuse to find that the courts of

California are inadequate forums in which to raise

federal takings claims.... We are convinced, as was

the district court, that the state courts will provide

Mission Oaks an adequate opportunity to raise

federal questions."

Mission Oaks, 989 F.2d at 361 (emphasis added).

Simply put, the availability of a federal forum is not

indispensable to the adjudication of federal claims. See Fresh

20

Int'l Corp. v. Agricultural Labor Relations Bd. , 805 F.2d

1353, 1362 (9th Cir. 1986) ("All that Middlesex requires is an

opportunity to present the federal issue...."). As this Court

stated in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51

L.Ed.2d 376 (1977):

"Here it is abundantly clear that appellees had

an opportunity to present their federal claims in the

state proceedings. No more is required to invoke

Younger abstention .... Appellees need be accorded

only an opportunity to fairly pursue their

constitutional claims in the ongoing state

proceedings, Gibson v. Berryhill, 411 U.S. 564, 577

(1973), and their failure to avail themselves of such

opportunities does not mean that the state

procedures were inadequate. Presumptively,

therefore, the principles which underlie Younger call

for dismissal of the action."

Juidice, 430 U.S. at 337 (emphasis added).

21

Old Vail attempts to avoid this body of law by arguing

that it has a right to separate state and federal forums on the

basis that it is pursuing the adjudication of "distinct

constitutional rights." (Pet. at 9). That argument, however,

lacks a crucial explanation as to how the federal claims

presented by Old Vail in the state forum are distinct from its

identical federal claims presented to the District Court.

Again, the reason is simple: Old Vail is simply advancing the

same claims in two courts. Younger is appropriately applied

in such a situation.

c. The Court of Appeals Fully Considered and

Correctly Decided That Petitioner's Federal

Action Should Be Dismissed on Younger

Grounds

This Court has set out a three-pronged test for

determining the circumstances in which abstention under

Younger is appropriate and must be applied. Those

circumstances must include the following:

22

“(1) the state proceedings are ongoing;

(2) the proceedings implicate important

state interests; and

(3) the state proceedings provide an

adequate opportunity to raise federal

questions."

Middlesex County Ethics Committee, 457 U.S. at 432;

Fresh Int'l, 805 F.2d at 1357-58; Beltran v. California, 871

F.2d 777, 781 (9th Cir. 1988).

In deciding to apply Younger, the United States Court

of Appeals for the Ninth Circuit made the requisite findings:

"[i]n addition to this federal action, appellant is pursuing

identical claims against defendants in California state court."

(Pet., Appendix B, at 2) (emphasis added). Applying the

Middlesex test to the Old Vail's concurrent and identical

federal and state actions, the Court of Appeals found:

23

"Each of these criteria is met: [1] Appellant's

parallel state action was filed on the same day as the

federal complaint and is currently on appeal [citations

omitted]; [2] 'land use planning is a sensitive area of

social policy,' [citations omitted] that implicates

‘substantial’ state interests; and [3] California state

courts afford appellant 'an adequate opportunity’ to

raise federal takings claims."

(Pet., Appendix B, at 3). Consequently, the Court of Appeals

vacated the District Court's opinion and remanded the case to

be dismissed without prejudice on the grounds of Younger

dette,

In short, the Court of Appeals correctly found that each

criterion was satisfied. It properly abstained from the

Petitioner's case on Younger grounds as it was required to do.

Although Petitioner attempts to make a case for applying

Pullman, Old Vail nowhere denies the criteria for abstaining

under Younger were not met in this instance. Instead, Old

24

Vail argues on the basis of an undesirable outcome rather than

in how the Court of Appeals implemented the unambiguous

guidelines of Middlesex, and attempts to argue that the

competing doctrines have been applied inconsistently and

interchangeably in the land use context.

Its points notwithstanding, Old Vail cannot ignore

(though it tries) the fact that important state interests (as to

community zoning and the means of financing public

improvements) are implicated by its claims, that state

proceedings were ongoing at the time of federal action, and

that the state court provides an adequate opportunity and

competent forum to present the federal claims. No matter how

one looks at it, this case presents a textbook example of

Younger abstention.®

® Old Vail, additionally, attempts to attribute significance

to the respective moments of filing its state and federal

complaints (Pet. at 16, fn. 3). When the respective clerks

accepted the identical complaints for filing is of no moment.

"Whether the state proceedings are 'pending' is not determined

by comparing the commencement dates of the federal and state

25

Ill.

ABSTAINING UNDER YOUNGER DOES NOT

CONFLICT WITH PRECEDENT OF THE NINTH

CIRCUIT

Petitioner boldly asserts that the Court of Appeals’

decision to abstain under Younger doctrine conflicts with its

own precedent and should be set aside for that reason (Pet. at

11, 18). In support of that inaccurate assertion, Old Vail

points to several decisions applying Pullman to land

use/inverse condemnation cases. Petitioner's discussion

focuses only on two readily distinguishable cases. The first

case, upon which Petitioner place principal reliance, is the

decision of the District Court in Furey v. City of Sacramento,

592 F.Supp. 463 (N.D.Cal. 1984). Other than stating that

proceedings." Polykoff v. Collins, 816 F.2d 1326, 1332 (9th

Cir. 1987). Younger abstention applies if the state

proceedings have been initiated “before any proceedings of

substance on the merits have taken place in federal court."

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 238, 104

S.Ct. 2321, 81 L.Ed.2d 186 (1984).

26

federal and state actions had been filed, the court in Furey

does not discuss the analysis involved (or not) in applying

Pullman abstention. Rather, the district court simply stated

that Pullman abstention was applied in the prior action and

nothing more.’

Petitioner next invokes the recent decision in Sinclair

Oil Corp. v. County of Santa Barbara, 96 F.3d 401 (9th Cir.

1996). Sinclair is even more distinguishable given that the

parties had informed the court that the state litigation had been

voluntarily stayed (96 F.3d at 404 n.1). As such, the state

® Petitioner similarly directed the District Court's attention

to the Furey decision. In its opinion (Pet., Appendix D, at

10), the District Court noted:

"Plaintiff fails to mention, however, that the

Furey court had explicitly noted that the plaintiff had

exhausted his state procedures and therefore had no

adequate state remedy remaining. Jd. At 1450, n.1."

The District Court correctly decided that the decision in Furey

did not apply to Old Vail's claims. Nothing about the claim

has changed since the District Court entered its order of

dismissal on November 9, 1994.

AE ETERS SRSA TF ADP AR NA HEIN

27

proceedings in Sinclair were not ongoing so as to satisfy the

first element of the Middlesex test in deciding whether to apply

Younger abstention.

Moreover, as Old Vail readily admits, the fact that the

state action did not request damages and/or "just

compensation" prevented the state court from addressing this

important federal issue. As such, Younger was inapplicable

given that the state proceeding would not have provided an

adequate opportunity to raise this federal issue. Not

surprisingly, the court applied Pullman to abstain, albeit

temporarily, from hearing the takings claim.

Petitioner then attempts to fashion additional require-

ments and/or restraints to applying the Younger abstention

doctrine. Petitioner, for example, cites Sixth Circuit authority

to prove that Younger is inapplicable where there is a single

plaintiff in both the state and federal actions, and where the

federal action is not an attempt to contravene or undermine the

correlative state action (Pet. at 27). In so arguing, Old Vail

28

boldly asserts that "(t]he U.S. Supreme Court has never

explicitly sanctioned the employment of Younger abstention"

in such circumstances (Pet. at 25-26). The United States

Supreme Court, of course, is not able, in advance, to identify

every instance in which Younger abstention is appropriate.

Arguing in the negative, however, only results in Petitioner's

succeeding to prove nothing.

Although Old Vail is able to cite to a Sixth Circuit

decision (Crawley v. Hamilton County Commissioners, 744

F.2d 28 (6th Cir. 1984)), and a Ninth Circuit decision case

referencing Crawley in a footnote, those cases do not control,

or even lend assistance, to the task at hand. A brief review of

the previously discussed and more recent Ninth Circuit

decision, Mission Oaks, reveals that the Middlesex test

controls the analysis (Mission Oaks, 989 F.2d at 360-63), and

whether the plaintiff is identical in both actions (which was the

case) or whether there was a supposed attempt to restrain the

state action is irrelevant.

kde is aetna aaa

29

Therefore, the decision below to abstain under

Younger was proper and required.

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests the Court to deny Old Vail's petition for a writ of

certiorari.

Dated: August 21, 1997

30

Respectfully submitted,

PETER M. THORSON

CITY ATTORNEY

MITCHELL E. ABBOTT”

STEVEN R. ORR

ROBERT A. BALBUENA

RICHARDS, WATSON &

GERSHON

A Professional Corporation

333 South Hope Street

Thirty-Eighth Floor

Los Angeles, CA 90071

(213) 626-8484

Counsel for Respondent

City of Temecula

* Counsel of Record