Evа KOLLSMAN, City National Bank, Tashi Land Corporation, a New York corporation, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, a municipal corporation, Defendant-Appellant.
No. 83-5798.
United States Court of Appeals, Ninth Circuit.
Decided July 17, 1984.
Appellant argues his conviction on Counts I and II “was against the weight of the evidence and contrary to the law.”
If appellant is arguing that the evidence was insufficient to convict, the argument has no merit. Viewing the evidence in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), a rational jury could conclude that all elements of both Counts I and II had been proven. Appellant admits to drawing a weapon to compel the agents to leave his property, knowing that they were federal agents. There was evidence from which a jury could conclude he did so wilfully.
If appellant is arguing that the verdicts are inconsistent, that argument is still meritless. The jury could have acquitted appellant of the charge under
(4) Testimony of the IRS Agents.
Appellant‘s final argument is that the verdicts must be set aside because they are based on perjured or deliberately misleading testimony. Appellant asserts the testimony of the agents at trial that appellant pointed the gun directly at one of them conflicts with earlier statements by the agents. This testimony, appellant argues, could have affected the jury‘s conclusion on the issue of appellant‘s wilfulness.
We find no merit in appellant‘s claim. The agents’ pre-trial statements were not inconsistent with their trial testimony. Agent Atchison testified before the grand jury and at trial that she saw the gun pointed directly at Agent Erickson before she turned to the other agents to suggest they leave. Agent DeMay‘s pre-trial statement to an IRS investigator that he “never saw the gun pointed directly at anyone” was not inconsistent with his trial testimony that the gun was pointed “in the direction of” Agent Erickson. Under cross-examination at trial Agent DeMay repеated the substance of his pretrial statement and explained any apparent inconsistency by testifying, “It was pointed toward the direction of Dave Erickson. I did not see it pointed directly at him but I did see it at that angle.” Finally, Agent Erickson‘s pretrial statement that he did not see the gun pointed directly at him was not necessarily inconsistent with his trial testimony that the gun was pointed in his direction from time to time.
Even if the agents’ pretrial and trial statements were not identical, there was no justification for setting aside the verdicts. Appellant received copies of the prior statements of the witnesses and used them during cross-examination. See United States v. Cervantes, 542 F.2d 773, 776-77 (9th Cir.1976). The jury was fully informed of the alleged discrepancies and concluded the evidence was sufficient to convict.
AFFIRMED.
Michael M. Berger, Fadem, Berger, McIntire & Norton, Los Angeles, Cal., for plaintiffs-appellees.
William L. Waterhouse, Los Angeles, Cal., for defendant-appellant.
Joseph Barbieri, Deputy Atty. Gen., San Francisco, Cal., for amicus Cal. Coastal Comm. et al.
Before SNEED and REINHARDT, Circuit Judges, and SOLOMON*, District Judge.
SNEED, Circuit Judge:
Paul Kollsman sought approval from the City of Los Angeles to develop an eighty-
REINHARDT, Circuit Judge, dissented and filed opinion.
I.
FACTS AND PROCEEDINGS BELOW
Paul Kollsman proposed to develop a seventy lot subdivision on an eighty-five acre tract of land located in the Santa Monica Mountains. On January 12, 1977, Kollsman submitted to the City of Los Angeles a proposed tract map and an “Environmental Assessment Form.” The City notified Kollsman on February 16, 1977, that it would not accept his subdivision application before he submitted a draft Environmental Impact Report (EIR). Kollsman submitted a first draft EIR on July 28, 1977.
By a memorandum dated August 16, 1977, the City informed Kollsman that two additional sections should be added to the EIR. Kollsman submitted a second draft EIR on September 13, 1977. The City circulated this draft for comment among concerned homeowner groups. On November 30, 1977, the City sent Kollsman a memorandum requesting further environmental information. The City sought information on development alternatives that would conform to the City‘s “slope density formula” and utilize “cluster development” as
The City informed Kollsman in a letter dated May 11, 1978, that the draft EIR could not be completed until he submitted information on alternative development plans and the slope density formula. On advice of counsel, Kollsman did not provide the additional information. The City mailed Kollsman a form notice of “Determination of Incompleteness of Application” on November 22, 1978. Two months later, on January 12, 1979, the City informed Kollsman that a public hearing could not be held on his application without completion of the EIR. On November 14, 1979, the City sent Kollsman a “Notice of Intent to Disapprove without Prejudice” for the reason that he had not submitted requested information. The City denied Kollsman‘s subdivision application on November 26, 1979.2
Concurrent with the City‘s processing of the subdivision application, Kollsman contested the land use regulations in federal district court. Kollsman filed a six-count complaint on March 1, 1977. Counts I and III sought to invalidate the slope density formula on constitutional theories of inverse condemnation and equal protection. Count II requested $6.3 million in damages for inverse condemnation. Counts IV, V, and VI involved state law claims. The district court granted the City‘s motion to dismiss Count V on April 25, 1977, and granted summary judgment in favor of the City on Counts IV and VI on March 28, 1978. In March and April of 1979, a seven-day bench trial was held on the constitutional claims.
On March 21, 1980, Kollsman filed a motion to submit additional evidence that raised, for the first time, the argument that his subdivision application should be “deemed approved” pursuant to California statutes. The court held two additional days of trial in April 1981. On November 11, 1981, the court issued an opinion stating that it had found for the plaintiff on the issue of liability and directing plaintiff‘s counsel to submit proposed findings of fact and conclusions of law. Over the City‘s opposition, the court on February 22, 1982, granted Kollsman‘s motion to amend the complaint to conform to proof. The amendment added two counts: Count VII asserts that Kollsman‘s application must be “deemed approved” under California law, and Count VIII claims rights under
On February 2, 1983, the district court held that Kollsman‘s subdivision application must be “deemed approved” pursuant to
The City filed a timely notice of appeal.4
Count VII raises difficult state law issues of great importance to the people of California. As already indicated, abstention is the appropriate course here.
We, therefore, vacate and remand.
II.
DISCUSSION
The abstention doctrine based on Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) is a narrow exception to the district court‘s duty to decide cases properly before it. Pullman allows postponement of the exercise of federal jurisdiction 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, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959)).
We apply an abuse of discretion test in reviewing district court abstention decisions. E.g., C-Y Development Co., 703 F.2d at 377. This standard of review, however, does not preclude invoking abstention in cases in which there exist compelling reasons to allow state courts to resolve issues of state law. Cf. Richardson v. Koshiba, 693 F.2d 911, 915-18 (9th Cir.1982) (ordering Pullman abstention after raising issue sua sponte). We believe that this is such a case.5
We have relied on three criteria for the application of Pullman abstention: (1) the complaint must touch a sensitive area of social policy into which the federal courts should not enter unless there is no alternative to adjudication; (2) a definitive ruling on the state issues by a state court could obviate the need for constitutional adjudication by the federal court; and (3) the proper resolution of the potentially determinative state law issue is uncertain. Richardson, 693 F.2d at 915; see C-Y Development Co., 703 F.2d at 377; Canton v. Spokane School Dist. No. 81, 498 F.2d 840, 845 (1974).
The first and second criteria are clearly satisfied in this case. We have repeatedly noted that land use planning is a sensitive area of social policy that meets the first requirement for Pullman abstention. E.g. C-Y Development Co., 703 F.2d at 377; Santa Fe Land Improvement Co. v. City of Chula Vista, 596 F.2d 838, 840 (9th Cir.1979); Ranchos Palos Verdes Corp. v. City of Laguna Beach, 547 F.2d 1092, 1094 (9th Cir.1976). The second requirement is also met. The conclusion eventually reached by the district court illustrates that a ruling on Kollsman‘s state law claims could obviate the need to address the federal constitutional claims.
We also find that the third requirement for Pullman abstention is met here. The district court‘s decision rests on an interpretation of interlocking statutory provisions enacted during the course of this litigation. The district court acknowledged that there have been few state cases that interpret the particular California code sections underlying its decision. Slip op. at 21. Moreover, appellants persuasively argue that resolution of this case requires attention not only to Chapter 4.5 of the California Government Code, the focus of the district court‘s opinion, but also consideration of the interrelation of that chapter with the Subdivision Map Act and the California Environmental Quality Act.6
The uncertainty of state law issues is illustrated by comparing the reasoning of the district court with the City‘s arguments before this court. For example, the district court relied on section 65941 of the California Government Code to conclude that the City could not in good faith refuse to accept Kollsman‘s application as complete.7 That section, the court held, prohibits the City from requiring Kollsman to submit the “informational equivalent” of an EIR. Because the district court found that Kollsman had submitted sufficient information to allow the City to prepare a legally adequate EIR, the court held that the City must consider Kollsman‘s application complete even though the City insisted that it was not. The City rejects this interpretation and argues that the request for information was authorized by the City‘s administrative guidelines for evaluating a development project‘s consistency with the general plan.8 Moreover, the City maintains that section 65941 was not applicable to local agencies at the time it determined the application was incomplete.9
The district court and the City also differ on the completeness of Kollsman‘s application. The district court noted that section 65943 of the California Government Code requires that “[i]n the event that the application is determined not to be complete, the agency‘s determinations shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete.” The district court found that the City‘s letter of November 22, 1978, did not satisfy this requirement and concluded that the City‘s determination of incompleteness was both incorrect and ineffective. It therefore concluded that the City had failed to satisfy the time limits of section 65924.10 The district court held that the legislature intended that if the substantive requirements of section 65943 are not satisfied within the specified time limits, a development appli-
The City disputes each link in the district court‘s reasoning. The City argues that the district court erred by applying section 65943, as amended, retroactively to Kollsman‘s application,13 and even if the section applies retroactively, an application should not be deemed complete even when an agency makes a timely, but erroneous determination that an application is incomplete. The City insists that the earliest possible date that Kollsman‘s application could be deemed complete is November 26, 1978.14 If the application is deemеd complete on this date, the City‘s rejection of the application on November 26, 1979 satisfies the one-year time limit provided by section 65950.15
Even if we assume that the district court correctly held that Kollsman‘s application must be deemed complete on November 22, 1978, uncertainty still obscures the legal consequences of that holding. The district court concluded that because the City had not satisfied the one-year deadline to approve or disapprove a completed application, the application must be deemed approved. At 1096. Various California state agencies, participating as amicus curiae, argue that Kollsman‘s application may not be deemed approved because he failed to submit a project proposal that complies with the California Environmental Quality Act and the Subdivision Map Act.16 The City argues that if Kollsman‘s application is deemed approved, such approval must be subject to appeal to the City Planning Commission and the City Council.17 Alternatively, the City maintains that Kollsman‘s subdivision may only be deemed approved subject to the slope density formula.
These state law issues require us to conclude that the district court abused its discretion by failing to abstain. This case implicates the concerns underlying the first and third criteria for Pullman abstention.18 Land use planning is a sensitive
III.
Because the district court should have abstained, we vacate its judgment and remand. At the request of either party, the district court should retain jurisdiction of the federal constitutional issues pending proceedings in the state courts. See, e.g., Migra v. Warren City School District Bd. of Ed., 465 U.S. 75, 104 S.Ct. 892, 898 n. 7, 79 L.Ed.2d 56 (1984); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Richardson, 693 F.2d at 918.
VACATED and REMANDED.
REINHARDT, Circuit Judge, dissenting:
I respectfully dissent.
I believe that the majority errs in holding that the district court abused its discretion by not abstaining from deciding the merits. There are no uncertain state law questions that must be resolved here. Rather, the case turns principally on a factual issue with a painfully obvious answer. Moreover, I believe that the majority‘s disposition of the case illustrates how procedural rules intended to aid the federal judiciary in performing its duties can, if misapplied, serve to deprive parties of a fair and adequate resolution of their dispute. By unnecessarily and improperly invoking the abstention doctrine, the majority does a disservice to both parties, and no favor to the federal courts. Rather than vacate the district court‘s decision on abstention grounds, we should reverse its state lаw decision on the merits and remand the case to the district court for resolution of Kollsman‘s constitutional claims.
In January 1977, Paul Kollsman submitted to the City of Los Angeles an application for the development of a seventy lot
The district court held, in what must have been a surprise to all concerned, that, under California law, Kollsman‘s application was accepted as complete on November 22, 1978 and was deemed to be approved as a result of the City‘s failure to act by November 22, 1979. Apparently finding it difficult to accept the district court‘s singular approach to the issue, the majority concluded that there are too many uncertain questions of state law involved аnd abstention is therefore warranted. I, on the other hand, think it clear that the district court wholly ignored the plain requirements of the California Government Code as well as the uncontrovertible facts when it decided that the City had accepted Kollsman‘s application as complete. In my opinion, there are no unclear or uncertain questions of state law that require resolution in this case.
The district court, intentionally or otherwise, circumvented the provisions of California law by finding as a matter of fact that the City had accepted Kollsman‘s application as complete. Because its critical finding of fact is so clearly erroneous, the district court‘s decision cannot stand. It is obvious from the record before us that the City did the precise opposite of that which the district court says it did. The City expressly found that the application was incomplete, not complete. Moreover, even if, under California law, Kollsman‘s application could have been deemed complete, that event would not have occurred until several days late on November 26, 1978. Even in that case, the City could not be deemed to have approved the application, for the City subsequently explicitly disapproved the application in a timely manner. Thus, contrary to the district court‘s assertion, it is absolutely clear that the City never approved the application, explicitly or by operation of law.
The majority unnecessarily raises many state law questions that it says have unclear answers. However, we need not resolve any of those state law issues in order to decide this case. We can and must view the issue of the appropriateness of abstention differently after the district court has decided the case on the merits than we would at the outset of the litigation. When an abstention motion is made early in the proceedings, the court will often not be in a position to know which issues will prove determinative or even which issues it will be necesary to consider. Much may depend on how the parties decide to develoр facts that are not yet before the court and how the court then resolves particular factual questions: whether or not a court must proceed down a particular road often will be determined by the decisions that are made at the preceding crossroad. However, after the trial is over and the facts and the law have both been fully explored, we can determine with certainty what, if any, state law questions must be decided and whether the answer to any such questions is unclear. The majority therefore errs in justifying abstention by raising many state law questions simply because at first blush they may appear to be of some relevance; in fact, a careful review of the fully developed record demonstrates that those questions are wholly irrelevant to the proper resolution of the dispute before us.
The majority errs in another basic respect in its approach to the abstention doc-
THE INAPPLICABILITY OF THE ABSTENTION DOCTRINE
The general rule concerning the exercise of federal jurisdiction was once simple: The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution . . . . With whatever doubts, with what-ever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821) (Marshall, C.J.).
Over time, however, the Supreme Court has made limited inroads on that rule. One example is the abstention doctrine, originally created in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). “[T]he Supreme Court has stated that the doctrine of abstention ‘is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.‘” Hillery v. Rushen, 720 F.2d 1132, 1137 (9th Cir.1983) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959)); see, e.g., Colorado River Water Conversation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); C-Y Development Co. v. City of Redlands, 703 F.2d 375, 377 (9th Cir.1983).
Designed for reasons of federalism and for the purpose of making it possible to avoid the unnecessary resolution of constitutional questions, the abstention doctrine allows a district court to exercise its equitable powers in extraordinary instances to abstain from resolving state law issues. See, e.g., Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980) (citing Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964)). In reviewing a district court‘s decision whether “compelling reasons” justify application of the abstention doctrine, we apply an abuse of discretion standard. See, e.g., Midkiff v. Tom, 702 F.2d 788, 789 n. 1, 799 (9th Cir.1983), reversed on other grounds, sub nom. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). We have been extremely hesitant to find that a district court abused its discretion in deciding state law questions. For example, in a case involving a municipal zoning decision, we refused to hold that the district court abused its discretion in deciding not to abstain; we did so even though it “was a case in which abstention would have been advisable, and well within the discretion of the court . . . . State law questions clearly predominated over federal questions. But we have no basis for holding that it was an abuse of discretion to retain the case.” Shamrock Development Co. v. City of Concord, 656 F.2d 1380, 1385 (9th Cir.1981).3
As the majority correctly restates, we have relied on three criteria in evaluating
If the proper resolution of the state law question is certain, abstention is improper. Even if the particular issue has never been addressed by the state courts, the proper resolution of a state law question may be certain. See, e.g., Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct. 1177, 1188-89, 14 L.Ed.2d 50 (1965); Meredith v. Winter Haven, 320 U.S. 228, 232, 234-35, 64 S.Ct. 7, 10-11, 88 L.Ed. 9 (1943); Hillery v. Rushen, 720 F.2d 1132, 1137 (9th Cir.1983); Midkiff v. Tom, 702 F.2d at 789-90 n. 1; see also Field, Abstention in Constitutional Cases, 122 U.Pa.L.Rev. 1071, 1092 (1974) (arguing in favor of “[l]imiting abstention to cases in which the state law issue is extremely unclear“; (emphasis added)). Thus, even though the district court said that “[t]here have been few cases which interpret the California code sections which are involved in this cаse,” 565 F.Supp. 1081, 1090, that alone would not mandate abstention.
Although several interrelated provisions of California law are raised by one or the other of the parties, the facts of this case, and the express language of the provisions that determine its results, are such that it is not necessary to resolve any unclear questions of state law. The one legal theory that the district court seems to be suggesting may readily be determined to be wholly without foundation. Then, when the simple critical factual question raised by the district court is isolated and given even the most cursory consideration, the outcome of the case becomes absolutely clear; whatever uncertain state law questions may otherwise be said to exist are no longer of any possible relevance. In short, the majority‘s entire list of “uncertain” state law questions consists of questions that we need not, and should not, resolve in this case. Accordingly, the majority‘s invocation of the abstention doctrine is unnecessary and inappropriate.
THE DISTRICT COURT‘S DECISION
It is clear that under California law the City was required to determine whether Kоllsman‘s application was complete and notify him in writing of that determination by November 26, 1978; in addition, if the City determined that the application was not complete it was required to specify the deficient parts of the application in the written notification. There can be no dispute as to the state law on those points.5
The City informed Kollsman in a letter dated November 22, 1978, that his applica-
The district court‘s unarticulated legal theory that if an application is in fact complete, a determination that it is incomplete constitutes a determination that it is complete is highly ingenious but wholly unmeritorious. Moreover, even assuming that the application did in fact contain all the information required by California law6 and that the City‘s request for further information was erroneous or made in bad faith, the City‘s one year period for approving a complete application still could not have commenced to run earlier than November 26, 1978, if at all.
Assuming the answer to every theoretically unclear state law issue to be favorable to Kollsman‘s position, the one year period for approval or disapproval would have begun on November 26, 1978 because that was the date on which, under the California statute, the City was required to make its determination as to the completeness of Kollsman‘s application.7 The only possible way the one year period could have commenced to run before November 26, 1978 would have been not only for the City‘s finding of incompleteness to be deemed a finding of completeness, but even more critical, for the City to have somehow obtained notice that such was the paradoxical effect of its request for further information. While it may be argued that under some circumstances a City may have notice that an application will be deemed complete if it fails to act on a date by which it is required to decide whether or not the application is complete, I am aware of no theory under which the City of Los Angeles could
Thus, the district court‘s decision must rest on its second theory—its apparent resolution of a factual issue it perceived to be raised by the two letters sent by the City to Kollsman. The November 22, 1978 letter was, as we have noted, clear and unambiguous. It found Kollsman‘s application incomplete and requested further information. Almost one year later, in a form letter to Kollsman dated November 14, 1979, the City stated that under a recent statutory amendment it “is required to act on certain projects . . . within one year of the date of acceptance of an application as complete” and that it planned to disapprove the application on November 21, 1979. The letter contained no specifics about Kollsman‘s application, except for the date that it was originally filed. It did not state that Kollsman‘s application had ever been accepted as complete; nor did it state the date on which any such action might have occurred, nor the date on which the City was required to approve or disapprove his application. In fact, the letter stated specifically that the application “has been held pending receipt of requested additional materials.” Thus, on its face the November 14, 1979 letter in no way reverses, or even contradicts, the November 22, 1978 one; in fact, it is in some important respects consistent with the earlier letter.
The district court read the letter as “a stroke of conscience,” 565 F.Supp. at 1096, and concluded that it demonstrated that the City had accepted the application as complete on November 22, 1978. This factual conclusion is wholly contrary to the evidence and to all rules of logic. It is inconceivable that the November 14, 1979 letter—a form letter that was devised to comply with a recent amendment to a statute and was in significant respects consistent with the November 22, 1978 letter—could serve to reverse completely the plain meaning of the earlier letter so that an express statement that the application was incomplete must be read retroactively as stating that the application was complete. The majority says that “[t]he district court‘s rationale for concluding that the application must be deemed complete on November 22, 1978, is somewhat opaque.” Majority opinion p. 835 n. 12. I disagree. Rather than merely opaque, the district court‘s factual conclusion is, in my opinion, bizarre, as well as wholly and clearly erroneous.
There is, in fact, only one possible interpretation of the November 22, 1978 letter: Kollsman was notified on November 22, 1978 that the City had determined that his application was incomplete; the City‘s letter meant and continued to mean precisely what it said and not the opposite. That meaning could not be changed, retroactively or otherwise, by a subsequent letter. Moreover, there are various possible explanations for the City‘s action in sending the November 14, 1979 form letter. The letter could have been sent to Kollsman (1) because the City was making one final attempt to obtain information it had been seeking for some time, (2) bеcause the City had decided to disapprove all applications in which the parties failed to supply requested information, despite the fact that no formal disapproval was required with respect to applications previously found to
After an application is accepted as complete, the City is required to approve or disapprove it within one year.
In sum, despite the majority‘s statements to the contrary, there are no uncertain state law questions that we need to resolve. Rather, to reach the proper result, we need only resolve a factual question with an obvious answer.
Abstention was improper for another reason as well. There is no “sensitive area of social policy” implicated here. Although zoning may generally involve sensitive areas of social policy, this narrow dispute does not.
The specific issues raised here are far from sensitive if for no other reason than that they will almost certainly never be raised again. As the district court recognized, there is “little likelihood that the future will bring State Court decisions on applications which were filed prior to January 1, 1978 and remain undetermined. In this respect, the Kollsman case may be unique. At least the possibility of additions to the species has long been extinct.” 565 F.Supp. at 1090.
In short, the majority errs in stating that Kollsman‘s claim “raises difficult state law issues of great importance to the people of California.” Majority Opinion slip op. p. 3053, p. 833. We need not decide any difficult or unclear questions of state law, but only a simple factual issue—the meaning of an unambiguous letter. Moreover, because most of the issues the parties discuss in the briefs probably will never be raisеd again, it is wrong to say that they are of great, or even any, importance to the people of California.
In conclusion, because two of the three requirements for abstention have not been satisfied, the majority errs in invoking the doctrine.
THE ADVERSE EFFECTS OF ABSTENTION
The majority‘s holding that the district court abused its discretion in not abstaining will unnecessarily delay resolution of Kollsman‘s claims for many years. Assuming that the plaintiffs have the necessary funds and stamina to pursue this litigation indefinitely, the state law issues will at some point be resolved in favor of the City, on one ground or another, and the federal courts will ultimately, if belatedly, be required to resolve the constitutional questions. In a decision holding that a district court properly decided the state law issues before it, the Supreme Court con-
Here, the district court had jurisdiction over both the federal and state law claims; absent extraordinary circumstances, the plaintiff should not be deprived of the right to have his claims resolved in a federal forum. Furthermore, the delay that will be caused by unnecessary and improper abstention in this case is far longer than the two year delay that the Supreme Court criticized in Winter Haven.
In January 1977, Kollsman submitted the development proposal to the City. In March 1977, he filed this complaint. The district court decided the case in February 1983. We heard the appeal in January 1984. The majority‘s decision will effectively render moot the district court proceedings and send the state issues to the California courts for a new beginning. This will, of course, delay for many years the final resolution of this dispute.
The suit has already outlived the original plaintiff, Paul Kollsman. The Kollsman estate will be most fortunate indeed if it is able to resolve even the simple and unimportant state law aspect of this litigation by 1987—ten years after the time the original application was filed. The case will then return to the federal courts for resolution of the federal issues unless by that time the plaintiffs have abandoned their rights in despair. In my opinion, we have a legal duty to exercise our jurisdiction now.
THE MERITS OF THE STATE LAW ISSUES
In order to discuss the abstention questions fully, it has been necessary to point out why I believe the district judge decided the merits of the state-law questions erroneously. I would, for the reasons I have already discussed, reach those merits and reverse the district court‘s decision.
CONCLUSION
Because there are no unclear questions of state law that require resolution, because a sensitive social policy is not implicated, and because the state law issues are in any event of little or no importance to the people of California, the majority errs in invoking the abstention doctrine. To dispose of this case, we need only resolve a simple factual question with an obvious answer. By attempting to make abstention the absolute rule in zoning cases rather than the exception in all cases, the majority does a disservice tо the litigants, who deserve, at a minimum, a reasonably prompt resolution of the federal issues that are determinative of this lawsuit. We should allow the already long delayed dispute to proceed to an orderly resolution. The abstention doctrine and its accompanying delay should be reserved for cases involving extraordinary circumstances.
The district court‘s decision on the state law questions should be reversed on the merits and the case remanded so that Kollsman‘s constitutional claims may be resolved. I believe that the majority errs in vacating the district court‘s decision on the basis of the abstention doctrine. I therefore dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Clyde Ray HASKINS, Defendant-Appellant.
No. 83-1990.
United States Court of Appeals, Tenth Circuit.
June 12, 1984.