FORTY ONE NEWS, INC., Plaintiff-Appellant, v. COUNTY OF LAKE, Defendant-Appellee.
No. 05-4630
United States Court of Appeals For the Seventh Circuit
Argued October 31, 2006—Decided June 27, 2007
Before POSNER, WOOD, and EVANS, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 7310—Elaine E. Bucklo, Judge.
I
Hoping to regulate and license “adult cabarets,” “adult stores,” and “adult theaters,” Lake County adoрted the first version of its Adult Use Ordinance on February 10, 1998. Almost immediately, 41 News joined with another adult bookstore and two adult cabarets in filing a state court action to block enforcement of the Ordinance. See XLP Corp. v. Lake County, 98 CH 1106 (Ill. Cir. Ct., Lake County). Although the Circuit Court of Lake County initially granted judgment on thе pleadings in favor of the County, the Illinois Appellate Court reversed. The Appellate Court found that there was a factual dispute “as to whether the recitals in the preamble of defendant‘s ordinance establish that the ordinance was enacted to advance a substantial government interest, i.e., to combat the adverse secondary effect of adult use businesses . . . .” XLP Corp. v. County of Lake, 743 N.E.2d 162, 170 (Ill. App. Ct. 2000). In light of the plaintiffs’ allegations that their businesses had operated for 15 years without causing any secondary effects, the court conсluded that the trier of fact should not have presumed that the Ordinance‘s preamble (finding to the contrary) was enough to refute the plaintiffs’ position. It accordingly remanded the case for a hearing, at which Lake County would have the burden to establish that the рurpose of the statute was to combat harmful secondary effects and that such effects existed. Id.
Having extricated itself from the state court suit, 41 News filed its complaint in federal court on November 12, 2004. Lake County initially responded with a motion to dismiss under
After Lake County‘s motion to dismiss in the federal suit was denied, events occurred in state court that precipitated a second motion to dismiss, this time on Younger abstention grounds. On May 26, the Illinois Appellate Court ruled that the Adult Use Ordinance was constitutionally permissible, affirming the verdiсt of the district court. See XLP Corp. v. County of Lake, 832 N.E.2d 480 (Ill. App. Ct. 2005). With this victory in hand, Lake County promptly filed an enforcement action
Based on the state court enforcement action, Lake County moved on June 15, 2005, to dismiss the federal action on Younger abstention grounds. This time, the district court granted its motion, concluding that “[a]bstention is appropriate in this case given the pending state action. Nothing of substance has occurred in the federal action. Plaintiff will be able tо litigate its constitutional claims in the state action. Manheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1045 (7th Cir. 1989).” Order of Dec. 12, 2005.
II
“We review Younger abstentions under a de novo standard of review.” Crenshaw v. Supreme Court of Indiana, 170 F.3d 725, 728 (7th Cir. 1999).
“The rule in Younger v. Harris is designed to ‘permit state courts to try state cases free from interference by federal courts.‘” Hicks v. Miranda, 422 U.S. 332, 349 (1975) (quoting Younger, 401 U.S. at 43). Younger abstention ensures that individuals or entities who have violated state laws cannot seek refuge from enfоrcement of those laws behind the equitable powers of the federal courts: “[I]f a person is believed to have violated a state law, the state has instituted a criminal disciplinary or other enforcement proceeding against him, and he has a fedеral defense, he cannot scurry to federal court and plead
Younger abstention is appropriate only when there is an action in state court against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding. While the doctrine was initiаlly limited in its application to pending state criminal prosecutions, its scope has been expanded to apply to state judicial and administrative proceedings in which important state interests are at stake. See Erwin Chemerinsky, Federal Jurisdiction § 13.3.3-13.3.4, at 817-27 (4th ed. 2003). “The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. The importance of the state interest may be demonstrated by the fact that the non-criminal proceedings bear a close rеlationship to proceedings criminal in nature . . . .” Middlesex County Ethics Comm‘n v. Garden State Bar Assoc., 457 U.S. 423, 432 (1982) (internal citations omitted). When the state proceeding is civil, Middlesex County Ethics Comm‘n requires federal courts to “abstain from enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate important state interests, and (3) offer an adequate opportunity for review of constitutional claims . . . .” Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998). There is no question that the quasi-criminal prosecution of the violation of an ordinance, see Ciotti v. County of Cook, 712 F.2d 312, 313 (7th Cir. 1983), is an adequate state proceeding for the purposes of Younger: we have held so in the past, e.g., Manheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1044 (7th Cir. 1989); Ciotti, 712 F.2d at 313, and 41 News offers no argument otherwise.
The existence of an adequate state enforcement action is nеcessary for Younger abstention, but it is not sufficient if, as here, the filing of the federal action preceded the state suit. (This reflects a rough first-in-time principle that courts normally follow. 41 News filed this suit on November 12, 2004; Lake County filed the enforcement action seven months later, on June 13, 2005.) When the federal suit is filed first, the court must also consider the progress of the federal action before deciding whether abstention is appropriate. See Ciotti, 712 F.2d at 313. Here, 41 News claims that the federal action had advanced enough that the district сourt erred by deciding to yield to the state proceeding.
Indeed, 41 News appears to go further and to argue that federal courts should never abstain if the state enforcement proceeding is filed after the federal suit. That argument, however, is a non-starter after Hicks v. Miranda, supra. As the Court concluded in Hicks, “where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force.” 422 U.S. at 349. Hicks went on to explain that “the district court must consider the progress of the federal action. The district court must abstain if there have been no ‘proceedings of substance on the merits . . . in the federal court.‘” Ciotti, 712 F.2d at 313 (quoting Hicks, 422 U.S. at 349).
41 News makes much ado over the progress that had been achieved in its federal case, alternately submitting
We have examined the federal case independently, and we havе no trouble concluding that nothing important relating to the merits has happened yet. The parties have not briefed and the court did not consider any issue related to the merits; no discovery has occurred. The briefs that have been filed dealt with Lake County‘s res judicata and Younger аrguments. The district court‘s denial of the County‘s first motion to dismiss and its grant of the second “was not a decision relating to the underlying issue in the case—the constitutionality of the ordinance.” Ciotti, 712 F.2d at 314. Like a finding about standing, see id., or a ruling on a motion to dismiss for failure to state a claim, see Manheim Video, 884 F.2d at 1045-46, the preliminary mattеrs addressed here were not sufficiently related to the merits to satisfy the standard in Hicks.
The only question that remains is whether 41 News had an adequate opportunity to raise its constitutional challenge to the Adult Use Ordinance in the state enforcement
We recognize that 41 News would prefer to be in federal court, understandably enough since the state courts have already upheld the ordinance, but its preferences and the earlier rulings of the statе courts carry no weight under Younger. Denial of a preferred federal forum for federal claims is often the result of the application of Younger abstention, see Tribe, American Constitutional Law § 3-30, at 584, as well as other doctrines promoting comity. The Supreme Court has “repeatedly held, to the contrary, that issuеs actually decided in valid state-court judgments may well deprive plaintiffs of the ‘right’ to have their federal claims relitigated in federal court. This is so even when the plaintiff would have preferred not to litigate in state court, but was required to do so by statute or prudеntial rules.” San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 342 (2005) (internal citations omitted).
Ultimately, as this court declared in Ciotti, “‘one who decides to violate a state law that he believes to be unconstitutional may find that he has thereby submitted himself to the jurisdiction of the state courts.’ This sometimes is true even if the violation follоws the filing of the federal action.” 712 F.2d at 315 (quoting People of the State of Illinois v. General Electric Co., 683 F.2d 206, 212 (7th
We address only one final point. In its reply brief, 41 News, perhaps recognizing that this case falls squarely within the ambit of the Younger doctrine, argues that we must balance a variety of factors in deciding whether the district court should abstain. This claim is misplaced. It is confusing the doctrine associated with Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), with Younger. See also Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983); Cigna HealthCare of St. Louis v. Kaiser, 294 F.3d 849, 852 (7th Cir. 2002). Unlike Colorado River abstention, which is “disfavored” even where the necessary parallel state proceeding exists, see Kaiser, 294 F.3d at 852, ”Younger v. Harris and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.” Middlesex County Ethics Comm‘n, 457 U.S. at 431.
* * *
The judgment of the district court is AFFIRMED.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-07