Midkiff v. Tom, No. 80-4368
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before ALARCON, POOLE and FERGUSON; ALARCON; POOLE; The Hawaii Land Reform Act, Part II; FERGUSON |
| Citation | 702 F.2d 788 |
| Parties | 13 Envtl. L. Rep. 20,534 Frank E. MIDKIFF, Richard Lyman, Jr., Hung Wo Ching, Matsuo Takabuki and Myron B. Thompson, Trustees of the Kamehameha Schools/Bishop Estate, Plaintiffs- Appellants, v. Paul A. TOM, Tony Taniguchi, Wilbert K. Eguchi, Wayne T. Takahashi, Lawrence N.C. Ing, Nobuyoshi Tamura, Andrew I.T. Chang, and David C. Slipher, Commissioners of the Hawaii Housing Authority; Franklin Y.K. Sunn, Executive Director of the Hawaii Housing Authority; and Hawaii Housing Authority, Defendants-Appellees, and Wai-Kahala Tract "H" Association, Inc.; Halawa Hills Landsale Committee; Awakea Association; Alii Shores Community Association; Enchanted Hills, Unit I; Portlock Community Association (Maunalua Beach); Kokohead Community Lease- Fee, Inc.; West Marina Community Association; Kalama Valley Community Association; Maunalua Triangle-Koko Kai Community Association, Inc.; Hahahione Valley Community Association, Inc.; Kamiloiki Community Association; Lunalilo Marina Community Association; Mariners Ridge and Cove Fee/Lease Conversion Committee; Spinnaker Isle Association; Waialae Iki Community Association; Waiau Community Association; Kahala Community Association, Inc.; Kahala Community Fee Purchase Fund and Halawa Valley Estates Fee Conversion Corporation, Intervenors-Appellees. |
| Decision Date | 28 March 1983 |
| Docket Number | No. 80-4368 |
Page 788
Takabuki and Myron B. Thompson, Trustees of the
Kamehameha Schools/Bishop Estate,
Plaintiffs- Appellants,
v.
Paul A. TOM, Tony Taniguchi, Wilbert K. Eguchi, Wayne T.
Takahashi, Lawrence N.C. Ing, Nobuyoshi Tamura, Andrew I.T.
Chang, and David C. Slipher, Commissioners of the Hawaii
Housing Authority; Franklin Y.K. Sunn, Executive Director
of the Hawaii Housing Authority; and Hawaii Housing
Authority, Defendants-Appellees,
and
Wai-Kahala Tract "H" Association, Inc.; Halawa Hills
Landsale Committee; Awakea Association; Alii Shores
Community Association; Enchanted Hills, Unit I; Portlock
Community Association (Maunalua Beach); Kokohead Community
Lease- Fee, Inc.; West Marina Community Association;
Kalama Valley Community Association; Maunalua Triangle-Koko
Kai Community Association, Inc.; Hahahione Valley Community
Association, Inc.; Kamiloiki Community Association;
Lunalilo Marina Community Association; Mariners Ridge and
Cove Fee/Lease Conversion Committee; Spinnaker Isle
Association; Waialae Iki Community Association; Waiau
Community Association; Kahala Community Association, Inc.;
Kahala Community Fee Purchase Fund and Halawa Valley Estates
Fee Conversion Corporation, Intervenors-Appellees.
Ninth Circuit.
Decided March 28, 1983.
Page 789
Clinton R. Ashford, Honolulu, Hawaii, for plaintiffs-appellants.
Yukio Naito, Shim, Sigal, Tam & Naito, A. Bernard Bays, William E. Atwater, Dennis E.W. O'Connor, John A. Roney, Stubenberg, Roney, Hartnett, Lawhn, Fong & Kuwaski, Tany S. Hong, Atty. Gen., Honolulu, Hawaii, for defendants-appellees.
Appeal from the United States District Court for the District of Hawaii.
Before ALARCON, POOLE and FERGUSON, Circuit Judges.
ALARCON, Circuit Judge:
The question presented by this case is whether a state may take real property from a lessor and transfer title in fee simple absolute to a lessee because of a shortage of land for fee simple residential ownership. 1 We hold that such a taking violates the federal constitution.
Page 790
I
On February 19, 1979, the Trustees of the Kamehameha Schools/Bishop Estate [Bishop Estate] filed a declaratory relief action alleging that the Hawaii Land Reform Act, Hawaii Rev.Stat. ch. 516, was unconstitutional. The Commissioners and the Executive Director of the Hawaii Housing Authority and the Hawaii Housing Authority were named as defendants [original defendants and intervenors hereinafter Appellees]. The district court declared that the challenged statute before us was constitutional. Midkiff v. Tom, 483 F.Supp. 62, 70 (D.Haw.1979). This appeal followed.
The Hawaii Land Reform Act permits certain lessees in possession of land in that state to acquire title in fee simple absolute through eminent domain proceedings. This legislation was enacted after a determination by the Hawaii Legislature that land ownership is concentrated in a few persons who have chosen to lease their property rather than to sell it. The legislature found that this practice has resulted in a shortage of fee simple land and an artificial inflation of residential land values in the state.
We must decide whether the Federal Constitution permits a state to take the private property of A and transfer its ownership to B for his private use and benefit. It is our view that it was the intention of the framers of the Constitution and the fifth amendment that this form of majoritarian tyranny should not occur. The protection provided by the fifth amendment has been extended to the states by reason of the fourteenth amendment. Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896); Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 158, 17 S.Ct. 56, 63, 41 L.Ed. 369 (1896).
As originally drafted, the Federal Constitution contained no reference to the protection of private property interests. It is quite clear, however, that prior to the founding of this nation, it was well established that the government could not take
Page 791
private property except for the use of the public. Hugo Grotius, one of the first commentators to define eminent domain, articulated a "public advantage" as a necessary prerequisite to a taking by the state. 2 H. Grotius, De Jure Belli Ac Pacis 385 (F. Kelly trans. London 1925) (1st ed. Amsterdam 1646). In 1758, E. de Vattel wrote that the exercise of the power of eminent domain had to be for the "public welfare." E. de Vattel, The Law of Nations, 96 (C. Fenwick trans. 1916) (1st ed. 1758). S. Pufendorf stated that a government taking must be for the "necessities of the state." De Jure Naturae et Gentium 1285 (C. & W. Oldfather trans. London 1934) (1st ed. 1688).The failure to spell out a precise guarantee for the protection of life, liberty, and property interests in the body of the United States Constitution was deliberate. James Madison, considered by historians to be the Father of the Constitution, 2 explained the reasons for this conscious omission as follows:
My own opinion has always been in favor of a bill of rights .... At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.... I have not viewed it in an important light--1. because ... the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.... 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed....
Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in 5 The Writings of James Madison 271-72 (G. Hunt ed. 1904).
Madison was, however, keenly mindful of the need to create a form of government which would protect each person's property interests. He stated this concern eloquently at the constitutional convention. "In future times a great majority of the people will not only be without landed, but any other sort of, property. These [may] ... combine under the influence of their common situation; in which case, the rights of property & the public liberty, [will not be secure in their hands] ...." 2 The Records of the Federal Convention of 1787 203-04 (M. Farrand ed. 1911) (footnotes omitted). 3
In 1787 Madison expressed his views to Thomas Jefferson concerning the need to protect minority rights from the acts of a majority that might seek to remedy unequal property distribution through legislative action:
Page 792
be enquired whether a majority having any common interest, or feeling any common passion, will find sufficient motives to restrain them from oppressing the minority.Letter from James Madison to Thomas Jefferson (Oct. 14, 1787), reprinted in 5 The Writings of James Madison 29.
Madison's distrust of government according to the will of a majority of the electorate was based on first hand observation:
In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience, it is well known that a religious establishment [would] have taken place in that State, if the Legislative majority had found as they expected, a majority of the people in favor of the measure .... Wherever the real power in Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in id. at 272.
In the Federalist papers Madison argued forcefully that a republican form of government was essential to preserve minority rights.
Complaints are every where heard ... that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority....
... [Factions develop whereby] a number of citizens, whether amounting to a majority or minority of the whole, ... are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
* * *
* * *
... [T]he most common and durable source of factions, has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed...
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...Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 513 (1977); see also Midkiff v. Tom, 702 F.2d 788, 803 (9th Cir.1983) (in submitting issue of statute's constitutionality to district court, it appears that Hawaii attorney general effectively w......
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J-R Distributors, Inc. v. Eikenberry, J-R
...We will reverse the district court on the issue of abstention only when there has been an abuse of discretion. See, e.g., Midkiff v. Tom, 702 F.2d 788, 789 n. 1, 799 (9th Cir.1983); Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 819 (9th Cir.), cert. denied, 456 U.S. 1011, 102 S.Ct. 23......
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Richardson v. City and County of Honolulu, Civ. No. 90-00856 DAE.
...compensation formulae unconstitutional.36 759 F. Supp. 1496 See Midkiff v. Tom, 483 F.Supp. 62, 70 (D.Haw.1979), rev'd on other grounds, 702 F.2d 788 (9th Cir.1983). No appeal was taken from these rulings, and the state legislature subsequently amended the statute to require mandatory negot......
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Fresh Intern. Corp. v. Agricultural Labor Relations Bd., AFL-CI
...reviewing a district court's holding on abstention. See, e.g., Hillery v. Rushen, 720 F.2d 1132, 1137 n. 3 (9th Cir.1983); Midkiff v. Tom, 702 F.2d 788, 789-90 n. 1 (9th Cir.1983) rev'd on other grounds sub nom., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d ......
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Association of Community Organizations for Reform Now, (Acorn) v. Municipality of Golden, Colo., No. 82-1310
...Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 513 (1977); see also Midkiff v. Tom, 702 F.2d 788, 803 (9th Cir.1983) (in submitting issue of statute's constitutionality to district court, it appears that Hawaii attorney general effectively w......
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J-R Distributors, Inc. v. Eikenberry, J-R
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Richardson v. City and County of Honolulu, Civ. No. 90-00856 DAE.
...compensation formulae unconstitutional.36 759 F. Supp. 1496 See Midkiff v. Tom, 483 F.Supp. 62, 70 (D.Haw.1979), rev'd on other grounds, 702 F.2d 788 (9th Cir.1983). No appeal was taken from these rulings, and the state legislature subsequently amended the statute to require mandatory negot......
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Fresh Intern. Corp. v. Agricultural Labor Relations Bd., AFL-CI
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