It's been our experience that when a court of appeals -- particularly when it's the Ninth Circuit, and it's the eve of oral argument -- raises an issue on its own after the briefs have been filed and requests supplemental briefing, then whatever that issue is must really be on the judges' minds. They're the cream of the crop (right?) and along with their cohort of law clerks (the next generation cream), they know the law (right?). And, as one Ninth Circuit judge candidly revealed at one of those bench/bar tip sessions last year, law clerks like nothing better than to catch the advocates in a misstatement or to find a missed argument, so they can present the issue to their judge like a cat bringing home a dead bird to its master (we're paraphrasing that last bit, of course, but the judge did say that clerks groove on finding things the lawyers get wrong or have missed).
So it is with great interest that we post the latest in a case we've been following, which will be argued before an august panel of the Ninth Circuit on June 10, in Honolulu. We're talking, of course, about Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, which we blogged about last week (including the full set of briefs on the appeal and cross-appeal). The issues before the court on appeal read like an outline for a 3L Federal Courts class, and involve a claim for absolute and qualified immunity (several members of the State of Hawaii Land Use Commission were sued by the property owner in their individual as well as official capacities), Younger and Pullman abstention, and the like. The substantive claims include due process, equal protection, and takings claims (among others). This is manna to us law nerds.
But after briefing was submitted, the Ninth informed the parties that Williamson County ripeness was on the panel's mind, and if the parties would submit 10-page letter briefs on the applicability of that case, Their Honors would be most appreciative. Odd. But when judges ask you this sort of thing even though you may be puzzled, you can't politely decline or say "really?" in your brief, although as the letter briefs posted below reveal, that's pretty much what both sides did because both the property owner and the LUC agree that Williamson County has little if anything to do with the issues before the court on appeal:
- Property Owner's letter brief re Williamson County
- Defendants-Appellants-Cross Appellees' Letter Brief re Effect of Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)
As to the "final decision" prong of the ripeness test, there's no question there's no more administrative process to play out, so it is strange the court would ask for briefing on that. The LUC made its decision, there's no process to reconsider or to mitigate it (don't get us started on so-called "variance" in federal takings jurisprudence), and there's nowhere else to go but to court. Which the plaintiff did. Indeed, it went to state court, and it was the LUC which removed the case to federal court.
Which takes us to the second prong of Williamson County, the requirement for a plaintiff to utilize available state procedures to obtain compensation. As noted, the plaintiff did just that, and it was the LUC which took the case to federal court. Thus, there is little doubt that this prong of Williamson County should not apply here, unless the Ninth is willing to join those courts which have concluded that Williamson County requires a federal court to grant a motion to dismiss because the case is not in state court, made by the party that brought the case to federal court from state court. Amazingly, this argument gets traction in some courts, although there have been other cases where the courts have rightly seen through this argument's inherent chutzpah. The LUC, being the party which removed the case to federal court, rightly does not argue that Williamson County now demands dismissal from federal court for the plaintiff's not seeking compensation in state court.
So with both parties agreeing that Williamson County doesn't have much, if any, impact on the appeal, where does that leave us, and why did the court even raise the issue when the answer was, in our view (and, to the parties) so obvious? The panel is comprised of Circuit Judges William A. Fletcher, Sandra Ikuta, and Andrew Hurwitz, if that information might help tell you about why they think the case is relevant. We sure can't understand it. Maybe we'll find out on Tuesday.
