WORLD FAMOUS DRINKING EMPORIUM, INC., an Arizona
corporation; Robert Eve and Michael Miller,
Plaintiffs-Appellants,
v.
CITY OF TEMPE, a municipal corporation; Tempe Board of
Adjustment; the Honorable Paul LaPrade, Maricopa
County Superior Court Judge, Defendants-
Appellees.
No. 85-2796.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 9, 1986.
Decided June 26, 1987.
As Amended Aug. 12, 1987.
Michael B. Scott, Phoenix, Ariz., for plaintiffs-appellants.
W. Kent Foree, Tempe, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before KENNEDY, TANG and THOMPSON, Circuit Judges.
TANG, Circuit Judge:
Appellant World Famous Drinking Emporium, Inc. ["World Famous"] appeals from the judgment of dismissal of its claim under 42 U.S.C. Sec. 1983, entered upon the basis of the abstention doctrine as enunciated in Younger v. Harris,
FACTS AND PROCEEDINGS:
Pursuant to a municipal zoning ordinance1 World Famous sought an entertainment use permit from Tempe for a nightclub featuring live entertainment in the form of female "gо-go" and "flash" dancers.2
World Famous I
The Tempe Board of Adjustment ["the Board"] held its first hearing on World Famous' application in November 1983. The Board denied the application. Upon reconsideration in January 1984, the Board denied the aрplication a second time. World Famous then sought to overrule the Board by way of a "special action" proceeding in Maricopa County Superior Court.3 Judge Marquardt upheld the Board.
World Famous II
World Famous' continued operation led Tempe to filе criminal proceedings and a civil enforcement action. In the latter action, Tempe sought preliminary and permanent injunctive relief. World Famous opposed Tempe's request by arguing, inter alia, the unconstitutionality of the zoning ordinance. Judge LaPrade granted the preliminary injunction on September 27, 1984. World Famous complied with the terms of the injunction and ceased presenting go-go and flash dancing. Following denial by the Arizona Supreme Court of special action relief, Tempe dismissed the criminal proeeding. Judge LaPrade denied World Famous' motions to dissolve the injunction and to dismiss the case, and granted Tempe's motion for summary judgment.
World Famous III
World Famous again sought the requisite use permit without success, and filed another special action petition in Superior Court, which was dismissed by Judge Howe on August 16, 1985.
World Famous IV
World Famous filed its Sec. 1983 action on July 17, 1985 in United States District Court for the District of Arizona. Based solely upon the abstention doctrine as enunciated in Younger v. Harris,
The issue of the constitutionality of the Tempe zoning ordinance is presently before the trial court in this case and wоuld be subject to appellate review in the state court should an aggrieved party elect to take such action.
World Famous timely appealed.
DISCUSSION:
The decision whether to abstain under Younger is reviewable do novo. Goldie's Bookstore, Inc. v. Superior Court of California,
Abstention from the exercise of federal jurisdiction is the exception, not the rule. Colorado River Water Conservation District v. United States,
1. Ongoing State Proceedings
At the time the district court abstained, World Famous had yet to appeal the adverse judgments in World Famous II and World Famous III to the state Supreme Court. Failure to exhaust state appellate remedies satisfies the requirement that there be "ongoing judicial proceedings" in order to justify federal abstention. See Huffman v. Pursue, Ltd.,
2. Important State Interest Implicated in State Proceedings
Younger abstention is not limited to ongoing state criminal proceedings, see, e.g., Huffman,
Here, Tempe brought a civil action in order to obtain compliance with an ordinance which aims at avoidance of public nuisances. It had the option of proceeding either by civil or criminal enforcеment of its municipal ordinance; the option of criminal enforcement demonstrates the importance of the underlying state interest. See Trainor,
3. Adequate Opportunity to Raise Federal Question
World Famous has failed to demonstrate how review of the adverse judgments in the state courts would not have permitted an opportunity to litigate its constitutional claims. That World Famous failed to avail itself of the opрortunity to litigate its constitutional claim in the state forum, does not demonstrate that the state forum did not provide an opportunity to litigate that claim. See Juidice v. Vail,
Further, the record reveals no harassment or bad faith on the part of Tempe in bringing the civil enforcement and criminal proceedings which would make abstention improper. See Huffman,
We hold abstention was proper and the merits of the constitutionality issue are not properly before this Court. See Singleton v. Wulff,
We also decline to consider World Famous' estoppel argument. World Famous fails to providе us with a reason for its failure to raise the estoppel issue below. Nor is the estoppel determination one of law whose proper resolution is beyond any doubt, see Telco Leasing, Inc. v. Transwestern Title Co.,
Affirmance makes unnecessary the consideration of Tempe's assertion that World Famous' action is precluded by the adverse determinations below.
AFFIRMED.
KENNEDY, Circuit Judge, concurring:
General principles of abstention are distinct from the doctrine of dismissal for lack of jurisdiction pursuant to Younger v. Harris,
Notes
The ordinance read in pertinent part:
"4. The granting of such use permits rests with the sole discretion of the Board or Commission and Council upon finding that the use covered by the permit, the manner of conducting the same, and any building which is involved will not be detrimental to persоns residing or working in the vicinity, to adjacent property, to the neighborhood, or to the public welfare in general....
In arriving at the above determination, the facts which shall be considered shall include, but not be limited to, the following:
a. Dаmage or nuisance arising from noise, smoke, odor, dust, vibration or illumination.
b. Hazard to persons and property from possible explosion, contamination, fire or flood.
c. Hazard occasioned by unusual volume or charаcter of traffic.
d. Character of proposed building and site.
e. A demonstrated need of such use.
* * *
Any use permits granted may be subject to such conditions as the Board, or Commission and Council deem applicable in order to fully carry out the provisions and intent of this Ordinance."
The terms "go-go" and "flash" dancing in the instаnt case denote dancing by performers wearing opaque material covering the nipples and areolas of the breasts and bikini-type bottoms
The scope of special action review is established by Rule 3 of the Arizona Rules of Procedure for Special Action, which reads in pertinent part:
"The only questions that may be raised in a Special Action are:
(a) Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion; or
(b) Whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or
(c) Whеther a determination was arbitrary and capricious or an abuse of discretion."
We note that the scope of review of a special action provides for consideration of "[w]hether the defendant has proceeded ... without or in excess of jurisdiction or legal authority." Ariz.Rev.Stat.Ann., Rules of Procedure for Special Actions 3 (1973). It appears that the state courts could construe municipal ordinances in light of federal constitutional law. Cf. Ohio Civil Rights Committee,
