Matthewman v. Akahane

Decision Date15 November 1983
Docket NumberCiv. No. 77-0406.
Citation574 F. Supp. 1510
PartiesFrieda J.I. MATTHEWMAN, et al., Plaintiffs, v. George G. AKAHANE, et al., Defendants.
CourtU.S. District Court — District of Hawaii

James N. Duca, Honolulu, Hawaii, for plaintiffs.

Gary Slovin, Corp. Counsel, City and County of Honolulu, Honolulu, Hawaii, for defendants.

Tany S. Hong, Atty. Gen., State of Hawaii, James H. Dannenberg, Deputy Atty. Gen., Honolulu, Hawaii, amicus curiae.


FONG, District Judge.

Plaintiffs have brought the instant action against certain former members of the City Council of the City and County of Honolulu in their individual capacities, the Director and Building Superintendent of the City and County of Honolulu, and the City and County of Honolulu itself. Plaintiffs claim that the City Council deprived them of property without just compensation and without due process of law when it downzoned their property and denied them a Certificate of Appropriateness which was necessary for a building permit. Plaintiffs seek damages and the issuance of a peremptory writ of mandamus requiring the defendants to issue the Certificate of Appropriateness and the building permit.

On July 27, 1978, the defendants moved for summary judgment, arguing, inter alia, that the action was barred by the statute of limitations. On July 10, 1979, this court, through Judge Weigel, entered an order which held that the applicable statute of limitations was Hawaii Revised Statutes § 657-1(4), the "catch all" section. Defendants have now moved for a reconsideration of that order in light of the decision in Bill's Crane Service, Inc. v. Quisenberry, 545 F.Supp. 359 (D.Haw. 1982), wherein it was held that H.R.S. § 657-11 is the applicable statute of limitations for all actions brought under 42 U.S.C. § 1983. The State of Hawaii has filed an amicus brief in support of the motion for summary judgment.

H.R.S. § 657-11 provides:

Recoveries authorized by federal statute. Whenever any federal statute provides for an imposition of a civil penalty or liquidated damages or imposes a new liability or enlarges any existing liability and the statute does not specify the period within which suit to recover the penalty, liquidated damages, or any sum arising out of any new or enlarged liability may be brought, the suit, if brought in a state court, shall be commenced within one year from the date the cause of action arises or be thereafter barred.

Section 657-11 has been held to be the applicable statute of limitations for actions brought under 42 U.S.C. § 1983. Bill's Crane, supra; Lai v. City and County of Honolulu, 562 F.Supp. 903 (D.Haw.1983). If § 657-11 is applied to the instant action, there is no question that the plaintiffs' claims would be time barred, since the complaint instituting this action was filed more than two years after all the acts alleged to have been committed by the defendants were completed.

Plaintiffs first argue that, even if their § 1983 claims are time barred, that they have also alleged constitutional torts as well, which are not "created by statute" and are therefore not time barred by § 657-11. These "constitutional torts", they argue, give rise to damage claims under the authority of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). This argument can be quickly disposed of at the outset. It is clear, under the authority of Ward v. Caulk, 650 F.2d 1144 (9th Cir. 1981), that a plaintiff cannot pursue a Bivens-type claim when he has a statutory remedy under § 1983, and even though his § 1983 action is barred by the statute of limitations.

Plaintiffs next argue that § 657-11 should be declared unconstitutional on three grounds: 1) that it is an invalid legislative act, 2) that it is not applicable to the instant case because § 1983 claims cannot be construed to be a "new" or "enlarged" liability, and 3) that it discriminates against the federal causes of action. The 1st and 3rd arguments were not considered by the court in Bill's Crane and Lai, and it appears that they are being considered for the first time in this district.


In determining what statute of limitations to "borrow", the Federal courts must first characterize the claim involved and then apply the most analogous state law. Copitas v. Retail Clerks Int'l Ass'n., 618 F.2d 1370 (9th Cir.1980). This is a matter of federal, not state, law. U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966); Smith v. Cremins, 308 F.2d 187 (9th Cir.1962). Plaintiff's first argument is that H.R.S. § 657-11 is an invalid legislative act, because it intrudes into the domain of the federal courts in their selection of the appropriate state statute.

There is a certain attractiveness to this theory, since a state legislature should have no concern with establishing limitations to federal causes of action. When the Congress, in providing for a new federal cause of action, fails to also establish the time within which the action might be brought, federal courts turn to analogous state statutes of limitations established by the state legislatures.

As a policy matter, this procedure should be followed. Statutes of limitations are statutes of repose. Campbell v. Haverhill, 155 U.S. 610, 616, 15 S.Ct. 217, 219, 39 L.Ed. 280 (1895); Rockton & Rion Ry. v. Davis, 159 F.2d 291 (4th Cir.1946). By applying the limitation period for analogous state claims, there would be a certain salutary effect of allowing citizens to be protected by the same period of limitations for similar claims, whether based on state or federal law:

In creating a new right, must we not presume that Congress intended that the remedy should be enforced in the manner common to like actions within the same jurisdiction?

Campbell, supra, 155 U.S. at 616, 15 S.Ct. at 219.

Furthermore, a limitation period established by a statute of limitations is necessarily arbitrary, see, Johnson v. Railway Express Agency, 421 U.S. 454, 463, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), and is a function best left to a legislature, not a court: In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying upon the State's wisdom in setting a limit ... on the prosecution of a closely analogous claim.

Johnson v. Railway Express Agency, supra, 421 U.S. at 464, 95 S.Ct. at 1722.

It is within the unique province of the state legislatures to prescribe limitation periods for state causes of action. In borrowing state statutes of limitations, federal courts are deferring to the views of the state legislature on matters which are within its peculiar concern. But when a state legislature enacts a statute of limitations having specific application to federal causes of action, there is less reason to defer to this determination. The state is at that point deciding a question of federal law. Pauk v. Board of Trustees of City Univ. of N.Y., 654 F.2d 856, 866 n. 6 (2d Cir.1981); cert. den., 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). See, Campbell, supra, 155 U.S. at 614-615, 15 S.Ct. at 218-219.

This is not to say that the federal courts are necessarily bound by the determination of the state legislatures, since as noted before, the selection of the appropriate state statute of limitations is a matter of federal law. The analysis simply reflects a concern that state legislatures should not attempt to engage in federal policy making.

The analysis, however, suffers for the fact that existing case law would seem to support a contrary conclusion. For example, in Kosikowski v. Bourne, 659 F.2d 105 (9th Cir.1981), the Oregon legislature provided for a two year limitation period for actions under the Oregon Tort Claims Act. "Tort" was under the statute specifically defined to include actions under 42 U.S.C. § 1983. See, 659 F.2d at 107.

The Ninth Circuit honored the characterization made by the Oregon legislature, despite the fact that the law of this circuit is that a § 1983 action should generally be characterized as an action created by statute, see, Major v. Arizona State Prison, 642 F.2d 311 (9th Cir.1981).1 The Court held that the procedure of "characterizing" a federal claim when borrowing a state statute of limitations period:

serves no purpose other than to provide guidance in the selection of the applicable state statute. When the state has expressly made that selection the federal courts should accept it unless to do so would frustrate the purposes served by the federal law upon which the plaintiff's claims rest.

659 F.2d at 107.2

See also, U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696, 705, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966) ("there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national policy"); Copitas v. Retail Clerks Int'l Ass'n., 618 F.2d 1370, 1372 (9th Cir.1980).

Thus, a state legislature can properly "characterize" federal claims as being of such a nature as to be most analogous to certain state causes of action, and the federal courts are generally bound by such a characterization. Given this conclusion, it would not seem improper for a legislature to then determine that federal causes of action are unlike any state causes of action and require a special statutory period where the Congress has not provided one. This would seem to be consistent with Zuniga v. Amfac Foods, Inc., 580 F.2d 380 (10th Cir.1978), which allowed the state to single out all federal causes of action for special treatment as long as the treatment is not discriminatory. (See discussion infra). This Court is not aware of any court which is disturbed by a state legislature prescribing nondiscriminatory statutes of limitations applicable only to federal causes of action, and indeed the case law seems to indicate...

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    ...period for a federal right than for a similar state right? See Johnson v. Davis, 582 F.2d 1316 (4th Cir.1978); Matthewman v. Akahane, 574 F.Supp. 1510 (D.Haw.1983); Van Horn v. Lukhard, 392 F.Supp. 384 (E.D.Va. 1975). If either of these questions is answered in the affirmative, the court sh......
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