Midkiff v. Tom ( 1983 )

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.

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).

II

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 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).

Ill

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:

[N]o society ever did or can consist of [a] .. . homogeneous ... mass of Citizens. ... In all civilized societies, distinctions are various and unavoidable. A distinction of property results from that very protection which a free Government gives to unequal faculties of acquiring it. There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest, a manufacturing interest.... [These distinctions will produce dissention and faction.] However erroneous or ridiculous these grounds of dissention and faction may appear to the enlightened Statesman or the benevolent philosopher, the bulk of mankind ... will continue to view them in a different light. It remains then to 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.

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... [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 distinct interests in society.... A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation ....

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... When a majority is included in a faction, the form of popular government ... enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens....

... [In a pure democracy a] common passion or interest will, in almost every case, be felt by a majority of the whole; ... there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual....

A republic ... promises the cure for which we are seeking....

The Federalist No. 10, at 104-09 (J. Madison) (Hamilton ed. 1868) (emphasis added).

Alexander Hamilton expressed similar apprehensions for the rights of property owners in his contributions to the Federalist. He wrote: “ ‘[Additional security to republican government, to liberty, and to property,’ ” is to be derived from the adoption of the Constitution. Id. No. 85, at 639 (A. Hamilton); and, “[A strong executive is essential] to the protection of property against those irregular and high-handed combinations, which sometimes interrupt the ordinary course of justice .... ” Id. No. 70, at 522 (A. Hamilton).

Initially, Madison did not publicly support a bill of rights. Prior to the ratification of the Constitution he “opposed all previous alterations as calculated to throw the states into dangerous contentions, and to furnish secret enemies of the Union with an opportunity of promoting its dissolution.” Letter from James Madison to George Eve (Jan. 2, 1789), reprinted in 5 Writings of James Madison 319-21 n. 1. Once the Constitution had been ratified by eleven states and “a very great majority of the people of America,” he felt that “[c]ircumstances are now changed.” Id. Madison reversed his position and supported the amendments as “providing additional guards in favor of liberty.” Id. On June 8, 1789, Madison presented a draft of twelve proposed amendments to the first session of Congress. Stoebuck, A General Theory of Eminent Domain, 47 Wash.L.Rev. 553, 595 (1972). Included was the following eminent domain clause: “No person shall be ... obliged to relinquish his property, where it may be necessary for public use, without a just compensation.” 1 Annals of Congress 434 (J. Gales ed. 1789). Stoebuck, A General Theory of Eminent Domain, 47 Wash.L. Rev. 553, 595 (1972).

If we look to the language of the Federal Constitution, and interpret the protection afforded property interests contained therein according to the intent of those who drafted it, it becomes unmistakably clear that the Hawaii Land Reform Act is unconstitutional. As anticipated by Madison, the Hawaii Legislature has become the instrument by which private property held by a minority of the persons within that state is to be redistributed to appease the desires of a landless majority to own residential land. The Federal Constitution and the fifth and fourteenth amendments were adopted with the express purpose of invalidating the taking of the private property from one person for the private and exclusive enjoyment by another.

IV

We are told by Appellees that court interpretations of the Federal Constitution support the validity of the Hawaii Land Reform Act. Our analysis of the cited cases follows. Although the scope of the power of eminent domain has been only vaguely and inconsistently stated, see Berger, The Public Use Requirement in Eminent Domain, 57 Or.L.Rev. 203, 204-05 (1978), there is one instance where, there is general agreement that eminent domain must not be used. The sovereign may not take the private property of A and transfer it to B solely for B's private use and benefit. Missouri Pacific Railway Co., 164 U.S. at 417, 17 S.Ct. at 135; B. Schwartz, A Commentary on the Constitution of the United States, The Rights of Property (pt. 2) 241 (1965); see also, Calder v. Bull, 3 U.S. (3 Dall.) 386, 388, 1 L.Ed. 648 (1798) (Chase, J., seriatum opinion) (“[A] law that takes property from A. and gives it to B.... is against all reason and justice .... ”). None of the authorities cited by appellees has declared such an attempt constitutional.

V

The cases upholding takings for a public use teach us that we must look at each case on an ad hoc basis: “[W]hat is a public use frequently and largely depends upon the facts and circumstances surrounding the particular subject matter in regard to which the character of the use is questioned.” Fallbrook Irrigation District, 164 U.S. at 159-60, 17 S.Ct. at 63. There are several recurring facts and circumstances, however, that are present in the cases in which appellate courts have found a proper exercise of the power of eminent domain.

Courts have found that a taking has been for a public use where:

A. The taking will result in condemnation of property for an historically accepted public use.

B. The taking will result in a change in the use of the land.

C. The taking will result in a change in possession of the land.

D. The taking will result in a transfer of ownership from a private party to a governmental entity.

E. The taking will result in a de minimis condemnation necessary to facilitate the development of nearby land. None of these facts nor circumstances are present in the Hawaii Land Reform Act.

A

Following the establishment of the United States Constitution, there were two major kinds of activities for which the power of eminent domain was undisputedly properly employed: mill acts and road building. See Berger, supra at 205. General mill acts allowed any owner of land upon a nonnavigable stream to build and maintain mills for manufacturing purposes. See Head v. Amoskeag Manufacturing Co., 113 U.S. 9, 20-21, 5 S.Ct. 441, 445-446, 28 L.Ed. 889 (1885). In Otis Co. v. Ludlow Manufacturing Co., 201 U.S. 140, 26 S.Ct. 353, 50 L.Ed. 696 (1906), the plaintiff challenged a general mill act enacted by Massachusetts. The Supreme Court summarily disposed of any general objection to the act on the basis that it constituted a taking for private use violative of the fourteenth amendment and noted that: “Such acts have been in force in Massachusetts ever since an act of 1714 .... The practice sanctioned by them would seem from the recitals of that act to have been still older.” Id. at 151, 26 S.Ct. at 354.

The Supreme Court similarly recognized a long-standing tradition of the use of eminent domain for the purpose of building roads in Rindge Co. v. County of Los Angeles, 262 U.S. 700, 706, 43 S.Ct. 689, 692, 67 L.Ed. 1186 (1923). In Rindge, plaintiffs objected to the taking of its property for two proposed highways that were to be built entirely on its private property. Only one of the roads, the “main road,” was to be connected to a public highway and only at one end; the other road, was to branch off the main road. Id. at 703, 43 S.Ct. at 691. The Court upheld the condemnation as being for a public use: “That a taking of property for a highway is a taking for public use has been universally recognized, from time immemorial.” Id. at 706, 43 S.Ct. at 692.

This court found condemnation of private land for road building was a public use in Guam v. Moylan, 407 F.2d 567, 567-68 (9th Cir.1969). The rationale, however, was based upon an analogy to redevelopment cases. See id. at 568.

Where the purpose of a taking has been historically deemed to be for the public it will be upheld by the courts.

B

The taking of private property has been upheld where there is a change in the use of the land. Often the change in the use is obvious and direct. Examples include the condemnation of land to build roads where no previous roads exist as in Rindge, 262 U.S. at 702-03, 43 S.Ct. at 691 or to build a railroad spur where no previous track exists. Hairston v. Danville & Western Railway, 208 U.S. 598, 600-01, 28 S.Ct. 331, 332-333, 52 L.Ed. 637 (1908). Similarly upheld are condemnations for the purpose of developing a power plant, Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32, 36 S.Ct. 234, 236, 60 L.Ed. 507 (1916) or developing a recreational area, United States ex rel. TVA v. Welch, 327 U.S. 546, 550, 66 S.Ct. 715, 717, 90 L.Ed. 843 (1946) (condemnation by TVA of private property for transfer to the National Park Service as part of the Great Smokey Mountains National Park); United States v. 416.81 Acres of Land, 514 F.2d 627, 629 (7th Cir., 1975) (undeveloped lands condemed for the Indiana Dunes National Lakeshore). Changes in the use of condemned property also may be upheld where the change is of a less direct nature. One such example involves the redevelopment of a community. E.g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (discussed infra, § VI(A)).

Puerto Rico v. Eastern Sugar Associates, 156 F.2d 316 (1st Cir.), cert. denied, 329 U.S. 772, 67 S.Ct. 190, 91 L.Ed. 664 (1946) is an example of a case that involves both changes of a direct and indirect nature. The major agricultural holdings of a landowner were to be condemned for, inter alia, three purposes which would result in a change in the use of the property: “(1) in small parcels to individual agregados [squatters] for the erection of their dwellings, (2) in somewhat larger parcels to individual farmers for subsistence farms and (3) in large parcels by lease to expert farmers, agronomists, or other qualified persons ... for the operation of ‘proportional-profit’ farms .... ” Id. at 319. Thus agricultural land was to be taken in some instances for building residences and in other instances for smaller farms, either upon which an individual could subsist or upon which experts would operate proportional profit farms.

In each of the foregoing cases land was condemned for the purpose of putting it to a different use.

C

Another factual circumstance common to many constitutional takings is that the party who will possess the land after condemnation is not the same party who possesses it prior to the condemnation. The majority of the cases discussed above include examples of such a transfer of possession. One example of an instance where the possessor was the same before and after condemnation can be found in two cases where the government condemned a reversionary interest it held in leased land. Old Dominion Land Co. v. United States, 269 U.S. 55, 66, 46 S.Ct. 39, 40, 70 L.Ed. 162 (1925) (federal government can properly condemn reversionary interest in land it was leasing for possible military purpose); United States v. Certain Parcels of Land, 141 F.Supp. 300, 307 (D.Wyo.1956) (condemnation of reversionary interest in land leased by government upon which government housing had been built is for a public use), aff’d sub nom. Arp v. United States, 244 F.2d 571 (10th Cir.), cert. denied, 355 U.S. 826, 78 S.Ct. 34, 2 L.Ed.2d 40 (1957). It is important to note, however, that in both of these cases, the government, not a private party, was the beneficiary of the condemnation.

D

Where the beneficiary of the condemnation is a governmental entity there is a strong indication that the taking is for a public use:

[W]here the land is taken by the government itself, there is not much ground to fear any abuse of the [eminent domain] power.... [When the power is delegated to a private corporation] the presumption that the.intended use for which the corporation proposes to take the land is public [when declared to be so by the legislature], is not so strong as where the government intends to use the land itself.

United States v. Gettysburg Electric Railway, 160 U.S. 668, 680, 16 S.Ct. 427, 429, 40 L.Ed. 576 (1896). In two cases where the government was the beneficiary of condemned property, the government was a lessor seeking condemnation of the fee simple interest. In Old Dominion Land Company the government leased land for military purposes. 269 U.S. at 63, 46 S.Ct. at 39. When the lessor refused to renew the leases, the government initiated condemnation proceedings after an offer to purchase the land was refused. Id. The Court upheld the taking as a public use. Id. at 66, 46 S.Ct. at 40. Similarly, in Certain Parcels of Land, the government leased land upon which it built and maintained a housing project. 141 F.Supp. at 303. The owners of the land refused to renew the lease and the government sought to condemn the fee simple title. Id. The court found acquisition of the fee did not violate the public use limitation in violation of the owners’ constitutional rights. Id. at 307.

Eastern Sugar Associates, 156 F.2d at 319, also involved a situation where the government could have remained in possession of the condemned land after condemnation. One of the acts that was challenged permitted the government to purchase lands and establish an organization to plant sugar cane for development of the sugar and liquor industries. Id. This was upheld as a taking for a public use. See id. at 324.

E

Finally, courts have upheld the condemnation of land where the taking is de min-imis and for the purpose of facilitating the development of nearby land.

In Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581 (1906), a mining company sought to condemn land for a right of way. The purpose was to erect an aerial bucket line that would result in the placement of four movable towers on the condemnees’ land. Id. at 529-30, 26 S.Ct. at 302. The line would transport ore from the mines to the railway station two miles away. Id. at 529, 26 S.Ct. at 3021. Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085 (1905), involved an attempt to condemn a portion of a neighbor’s land by enlarging a ditch to irrigate the condemnor’s arid land to produce crops. Id. at 362, 25 S.Ct. at 676. The public use was upheld in both of these cases. In each case, the extent of the taking was minimal. The towers in Strickley were not permanent and the condemnor was under an obligation “to move the towers as often as reasonably required by the owners” in order for them to mine their land. 200 U.S. at 530, 26 S.Ct. at 302. Clark involved taking only enough land to widen by twelve inches the existing irrigation ditch which measured eighteen inches wide, twelve inches deep. 198 U.S. at 363, 25 S.Ct. at 676-677. Thus, both condemnations involved a minimal taking of land that resulted in an increased productivity of nearby land.

VI

A

The thrust of the Appellees contentions concerning the public use issue is that this court’s inquiry must be restricted to whether the legislature, in enacting the Hawaii Land Reform Act, was acting within the parameters of its police powers. For example, Appellee Kahala Community Association, Inc. and Kahala Community Association Fee Purchase Fund assert the following:

Berman [348 U.S. at 26, 75 S.Ct. at 98] could not be clearer. If the legislative object is within its authority, the use of eminent domain is permissible, since that power serves simply as a means to the end. It follows that if it is constitutional to pursue an objective by police power regulations, eminent domain may be used.

Brief for Appellees Kahala Community Association, Inc. & Kahala Community Association Fee Purchase Fund at 23.

We disagree. Berman does not paint with so broad a brush. Berman involved the condemnation of buildings in a slum area for the purpose of building a new community. Congress had made a determination that the slum area was harmful to the health, safety, morals, and welfare of the public. Id. at 28, 75 S.Ct. at 100. It declared that condemnations for redevelopment pursuant to the redevelopment plan were for a public use. Id. at 29, 75 S.Ct. at 100-101. Buildings that were old, decayed, and unsafe were to be razed and replaced by new buildings. New homes, schools, churches, parks, streets and shopping centers were to be built. See id. at 34-35, 75 S.Ct. at 103-104. The court focused on the planned condemnations on an area basis rather than on a structure-by-structure basis. Id. at 34, 75 S.Ct. at 103. Thus, it was not important whether a single building represented a safety or health hazard or was unsightly. The important fact was “to redesign the whole area so as to eliminate the conditions that cause slums — the overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns.” Id. This transformation from slum to healthy thriving community represents a change in the use of the land.

By contrast, the Hawaii Land Reform Act will result in no change in use of the property. The property itself is currently used for residential purposes. After condemnation it will be used for residential purposes. Appellees argue that there is a change in use in that the land is now used for investment purposes; subsequent to condemnation it will only be used for residential purposes and the owner of the newly created fee simple land will treat the property differently because he knows he can stay there as long as he chooses. These alleged changes in use, however, are simply different forms of private use.

The redevelopment in Berman authorized the transfer to public agencies of land “to be devoted to such public purposes as streets, utilities, recreational facilities, and schools.” Id. at 30, 75 S.Ct. at 101. The remaining land was to be redeveloped preferably by private enterprise. Id. Thus, it was possible that certain property owners would be permitted to repurchase their properties. Id. at 34, 75 S.Ct. at 103. The key in Berman is the intermediate step in which the property was transferred from the private owner to the government for a public purpose, i.e., the redevelopment of the area. In the case before us there is no such intermediate step in which the government holds the property for the accomplishment of a public purpose. The lessee simply retains possession of residential property throughout the condemnation process until he receives fee simple title. Berman does not authorize such a scheme. Nothing in Berman permits the lessee of property to take ownership of that property from the owner involuntarily through condemnation proceedings. Nothing in Berman would provide, as does the Hawaii Land Reform Act, the lessee of condemned property with greater rights to that property than the owner.

It is against this factual background that we must read its sweeping language: “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id. at 33, 75 S.Ct. at 103. The Supreme Court also stated in Berman that: “Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” Id. at 32, 75 S.Ct. at 102 (emphasis added). We read this language as requiring the judiciary to scrutinize carefully any legislative attempt to take private property so as to determine if it is in violation of any constitutional provision. The fifth amendment is specific: “No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const.Amend. V; see also, cases cited § VI(B) infra (role of judiciary in determining public use). To hold, as the district court below did, that the public use limitation is subsumed under a “police power/due process analysis,” Mid-kiff, 483 F.Supp. at 67, would be to ignore the explicit language of the constitution and to disregard the fifth amendment protections granted to citizens of the states under the fourteenth amendment. See, e.g., Missouri Pacific Railway, 164 U.S. at 417,17 S.Ct. at 135. Such a result is untenable. Indeed, the Supreme Court has held that merely because the legislature has the power to regulate private property does not allow it to take that property without just compensation in violation of the fifth amendment. Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 392-393, 62 L.Ed.2d 332 (1979). It follows that because the state legislature has the power to regulate private property does not allow it to take that property for a nonpublic use in violation of the fourteenth amendment.

B

Appellees, citing Old Dominion Land Co., 269 U.S. at 66,46 S.Ct. at 40, also argue that review by this court is limited to the question of whether the determination of the existence of public use by the Hawaiian Legislature, Hawaii Rev.Stat. § 516-83(a)(12)⁴ “is shown to involve an impossibility.” Appellees direct our attention to the following cases as well: Berman, 348 U.S. at 32, 75 S.Ct. at 102 (citing T.V.A., 327 U.S. at 552, 66 S.Ct. at 718; Old Dominion Land Co., 269 U.S. at 66, 46 S.Ct. at 40); Gettysburg Electric Railway Co., 160 U.S. at 680, 16 S.Ct. at 429; Southern Pacific Land Co. v. United States, 367 F.2d 161, 162 (9th Cir.1966), cert. denied, 386 U.S. 1030, 87 S. Ct. 1485,18 L.Ed.2d 591 (1967). The cases cited by Appellees, however, involved the review of a congressional determination that there was a public use, not the review of a state legislative determination. In T. V.A., 327 U.S. at 552, 66 S.Ct. at 718 the Supreme Court stated that review of a congressional public use declaration is not the same as the review of a state legislative determination: “But whatever may be the scope of the judicial power to determine what is a ‘public use’ in Fourteenth Amendment controversies, ... when Congress has spoken on this subject ‘Its decision is entitled to deference until it is shown to involve an impossibility.’ ” (quoting Old Dominion Land Co., 269 U.S. at 66, 46 S.Ct. at 40 (emphasis added)). Where a state legislative determination is involved: “[i]t is well established that ... the question what is a public use is a judicial one.” Cincinnati v. Vester, 281 U.S. 439, 446, 50 S.Ct. 360, 362, 74 L.Ed. 950 (1930); This matter involves a review, under the fourteenth amendment, of a state legislative determination. This court must properly make the ultimate determination of whether the use is public.

Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462 (1905) cited by one of the appellees for the proposition that courts should pay deference to state legislative determinations, is particularly appropriate here. The Court is explicit: “ ‘It is erroneous to suppose that the legislature is beyond the control of the courts in exercising the power of eminent domain .... For if the use be not public ... the legislature cannot authorize the taking of private property against the will of the owner, notwithstanding compensation may be required.’ ” Id. at 252, 25 S.Ct. at 256 (quoting Tracy v. Elizabethtown, Lexington & Big Sandy Railroad, 80 Ky. 259, 265 (1882)). Moreover, were Congress to enact a statutory provision that would allow condemnation of A’s private property for transfer to B, solely for JS’s private use, this court would necessarily find such action contrary to the fifth amendment whether or not congress declared such proceedings to be for a public purpose. See, e.g., Colchico v. United States, 286 F.Supp. 507, 509 (N.D.Cal.1968) (court to review whether federal taking for a public use); United States v. 23.9129 Acres of Land, 192 F.Supp. 101, 102 (N.D. Cal.1961) (“This court need not, and will not, stand idly by and allow [federal] administrative officials to take private property arbitrarily, capriciously, in bad faith, or for what is essentially a private purpose.” (emphasis added)).

VII

When we strip away the statutory rationalizations contained in the Hawaii Land Reform Act, we see a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B’s private use and benefit.

The founders of this nation sought to give constitutional protection to minority rights. They wisely foresaw that attempts would be made by the states to take away the private property rights of the landed minority. Our Federal Constitution and the Bill of Rights were designed to prevent such abuses by the majority. That Constitution now compels us to find that the Hawaii Land Reform Act violates the public use limitation of the fifth and fourteenth amendments. Those provisions of the Hawaii Reform Act that provide for the condemnation of certain residential property are facially unconstitutional.

The decision of the district court is REVERSED and REMANDED for further proceedings consistent with the views expressed in this opinion.

1 . Federal district court jurisdiction of the case sub judice is based upon 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights) & 2201 (declaratory relief) and 42 U.S.C. § 1983 (civil action for deprivation of rights). The issue of whether the district court should abstain from the exercise of its jurisdiction was raised during the proceedings below. The district court proceeded to the merits and thus implicitly exercised its discretion to decline abstention. See Midkiff v. Tom, 483 F.Supp. 62 (D.Haw. 1979).

The general rule is that a federal court must decide the cases properly before it; abstention from the exercise of jurisdiction is the exception to the rule. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Shamrock Dev. Co. v. City of Concord, 656 F.2d 1380, 1385 (9th Cir.1981). “[T]here is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of state policy.” Zablocki v. Redhail, 434 U.S. 374, 379-80 n. 5, 98 S.Ct. 673, 677-678 n. 5, 54 L.Ed.2d 618 (1978). This court will reverse the district court on the issue of abstention only where there has been an abuse of discretion. Shamrock Dev. Co., 656 F.2d at 1385.

There are several bases upon which a federal court may abstain from exercising its jurisdiction. See International Bhd. of Elec. Workers, Local Union No. 1245 v. Public Serv. Comm’n, 614 F.2d 206, 211-12 (9th Cir.1980) [International Bhd], A federal court may decide to abstain, for example, where a federal constitutional issue could be “mooted or presented in a different posture by a state court determination of pertinent state law.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959) (citing inter alia Railroad Comm’n v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941)). This court has held that abstention based upon this doctrine (Pullman abstention) is required if three tests are met:

(1) The complaint “touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.”

(2) “Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.”

(3) The possibility determinative issue of state law is doubtful.

Canton v. Spokane School Dist. # 81, 498 F.2d 840, 845 (9th Cir.1974) (citing Pullman, 312 U.S. at 498-99, 61 S.Ct. at 644-645) (footnote omitted). A state’s system of eminent domain “is intimately involved with sovereign prerogative,” Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28 (1959) (upholding district court’s exercise of discretion resulting in abstention), however, this alone is insufficient to require abstention. Frank Mashuda Co., 360 U.S. at 191-92, 79 S.Ct. at 1064-1065; see Zablocki, 434 U.S. at 379-80 n. 5, 98 S.Ct. at 677-678 n. 5 (1978); Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980). It is especially crucial that there be “an uncertain issue of state law.” Id. at 78. The Hawaii Land Reform Act is perfectly clear as to the key issue of whether the condemnation system set forth in Hawaii Rev.Stat. ch. 516 is for a public use. The statute unambiguously states: “The use of the power to eminent domain [under the Hawaii Land Reform Act] ... is for a public use and purpose.” Hawaii Rev.Stat. § 516-83(a)(12). Moreover, there is no fair construction of this provision that would moot the federal issue of whether the condemnation is for a public use. “Hence, the naked question, uncomplicated by an unresolved state law, is whether the Act on its face is unconstitutional.” Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971). Abstention by the district court thus would have been inappropriate.

Federal courts may also decline to exercise their jurisdiction where the dispute involves “an essentially local issue arising out of a complicated state regulatory scheme .... ” International Bhd., 614 F.2d at 211. See Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The Ninth Circuit has limited abstention under this principle (Burford abstention) to cases where: (1) the state has concentrated suits involving the local issue in a particular court; and (2) the federal issues are not easily separable from state law issues with which the state courts may have special competence. See International Bhd., 614 F.2d at 211. Hawaii has not concentrated challenges to its condemnation system in any court. The federal issue of whether the takings provided for by the state legislature is for a public use is easily separable from any state law issues especially since the statute is clear. Burford abstention is thus inapplicable.

Finally, abstention by a federal district court is appropriate under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger and its progeny counsel federal court abstention when there is a pending or ongoing state proceeding, Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); L.H. v. Jamieson, 643 F.2d 1351, 1352 (9th Cir.1981), in which the federal claims could be competently adjudicated. See Moore, 442 U.S. at 425, 99 S.Ct. at 2378. The Supreme Court recently reiterated that abstention under Younger principle is limited to federal cases which “seek to enjoin state judicial proceedings.... ” Fair Assessment in Real Estate Ass’n Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 185, 70 L.Ed.2d 271 (1981). See Zablocki, 434 U.S. at 379-80 n. 5, 98 S.Ct. at 677-678 n. 5. Plaintiffs in this action have not sought to enjoin any state judicial proceedings. We are informed by counsel on both sides of the abstention issue that, as of the time this action was filed, no condemnation actions had been filed in the state courts. This fact is undisputed. Moreover, even though such suits may now be pending in the state courts, the “principles of comity and federalism do not require that a federal court abandon jurisdiction it has properly acquired simply because a similar suit is later filed in a state court.” Town of Lockport, N.Y. v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259, 264 n. 8, 97 S.Ct. 1047, 1051 n. 8, 51 L.Ed.2d 313 (1977) (emphasis added). The district court acted correctly in declining to abstain from the exercise of its jurisdiction.

2 . United States Constitutional Sequicentennial Comm’n, History of the Formation of the Union Under the Constitution 122 (1941).

3 . Madison also articulated this concept earlier during the constitutional convention: “The lesson we are to draw ... is that where majority are united by a common sentiment and have an opportunity, the rights of the minor party become insecure.” 1 The Records of the Federal Convention of 1787, 136 (M. Farrend ed. 1911).

4 . Hawaii Rev.Stat. § 516-83(a)(12) states:

The use of the power to eminent domain to condemn the fee simple title to residential land and the payment of just compensation therefor for the purpose of making the fee simple title thereto and the use thereof available for acquisition by people who are lessees under long-term leases of such land and on which such land their homes are situated is for a public use and purpose.

(emphasis added).