dissenting:
In order to have a ready, clear backdrop for my view, I reiterate in chronological order the decisive events.
Prior to final judgment herein, the California legislature enacted the Bane Bill, effective October 1,1980, which was intended to be a form of just compensation for the acknowledged taking of Sea Ranch’s property interest by the State.
Final judgment adverse to Sea Ranch was entered herein and was appealed to the Supreme Court of the United States.
Through litigation in the California courts, third parties attacked the constitutionality of the Bane Bill under the California Constitution.
Pursuant to the terms of the Bane Bill, Sea Ranch executed and delivered to escrow deeds of transfer of property interest to the State and, in turn, the State deposited the consideration therefor in the amount of $500,000 in escrow. The escrow closed and Sea Ranch’s deeds of conveyance were delivered to the State. However, the State’s money in the amount of $500,000 was retained and still remains in escrow pending final adjudication of the Bane Bill’s constitutionality.
*249The Supreme Court of the United States in Sea Ranch’s appeal vacated this court’s final judgment and remanded the cause to this court for consideration as to “whether the case is moot in light of” the Bane Bill.
It follows that the original live controversy among the parties hereto has been returned to this court. If the cause is determined to be moot by reason of the Bane Bill, this cause is to be dismissed. If this cause is not determined to be moot under the Bane Bill, this court must reaffirm its final judgment or reconsider the same.
I take it that the Supreme Court’s directive to us is that we consider not the mere language of the Bane Bill, but the full force and effect of the legislation upon the live litigation involved herein. I take the position that no effect has been accomplished to date. Likening the provisions of the legislation to an executory contract among the parties hereto, the same has not been mutually executed. True, Sea Ranch has met their obligations under the legislation, but the State’s participation in the payment of the consideration for the transfers, namely, the $500,000, is in a state of limbo. The clear language of the Bane Bill is on the books, but nothing conclusive has occurred by virtue of it.
As the majority correctly points out, this court has no jurisdiction to adjudicate the issue of the constitutionality of the Bane Bill under California’s Constitution. We stand in the same position as does the escrow agent. We must await the final adjudication of the issue of the constitutionality of the Bane Bill by the California courts before we can perform.
It is true that there exists no dispute among the parties hereto over the constitutionality of the Bane Bill. That dispute wages elsewhere among third parties, and I believe the absence of such an issue is of no consequence to us. The hallmark is that the original dispute among the parties hereto, as it existed prior to the now vacated final judgment herein, is with us.
It appears to me that the majority’s conclusion to dismiss this case for mootness is based upon an inconsequential premise: an unenforceable adjudication of the constitutionality of the Bane Bill or an anticipatory feeling that the California courts will in the future so declare.
I must respectfully dissent from the conclusion of mootness and dismissal. I would order abstention from further proceedings herein, with the reservation of jurisdiction, pending the final adjudication of the issue of the constitutionality of the Bane Bill by the California courts. At that time and only then can this court follow the mandate of the Supreme Court by readily determining the lawful force and effect of the operation of the Bane Bill upon the cause herein and determine whether this cause is moot.
I also deplore the time length of this litigation to date, as well as the further delay in the event of abstention. However, I take solace in the fact that the cause of the delay cannot be laid at the door of the court. In my view, abstention is forced upon us and the parties hereto by the action of third parties. We have no control over the institution or the progress of the state court proceedings. The required abstention herein will neither delay nor hasten the ultimate day of the state court adjudication of the issue of the constitutionality of the Bane Bill.