# Opposition Brief — Old Vail Partners v. County of Riverside

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1102%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 943

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1102%3A2. Public record. Not legal advice.