Night Clubs, Inc. v. City of Fort Smith, Ark.

• Decision Date: 14 December 1998
• Docket Number: No. 97-4199,97-4199
• Citation: 163 F.3d 475
• Parties: NIGHT CLUBS, INC., doing business as Regina's House of Dolls, II, Appellant, v. CITY OF FORT SMITH, ARKANSAS; William W. Harding, Individually and as Director of Planning; Michael Fisher, Individually and as Commissioner; James Damron, individually and as Commissioner; John E. Keller, Individually and as Commissioner; George McGill, Individually and as Commissioner; Jack Grober, Individually and as Commissioner; Ronald W. Rouse, Individually and as Commissioner; Lawrence A. Devero, Individually and as Commissioner; Lynn V. Snider, Individually and as Commissioner; Robert J. Mulson, Jr., Individually and as Commissioner; Fort Smith Planning Commission, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 475

163 F.3d 475

NIGHT CLUBS, INC., doing business as Regina's House of Dolls, II, Appellant, v. CITY OF FORT SMITH, ARKANSAS; William W. Harding Individually and as Director of Planning; Michael Fisher Individually and as Commissioner; James Damron individually and as Commissioner; John E. Keller Individually and as Commissioner; George McGill, Individually and as Commissioner; Jack Grober, Individually and as Commissioner; Ronald W. Rouse, Individually and as Commissioner; Lawrence A. Devero, Individually and as Commissioner; Lynn V. Snider, Individually and as Commissioner; Robert J. Mulson, Jr., Individually and as Commissioner; Fort Smith Planning Commission, Appellees.

No. 97-4199.

United States Court of Appeals, Eighth Circuit.

Submitted May 14, 1998.

Decided Dec. 14, 1998.

Eddie N. Christian, Jr., Fort Smith, AR, argued, for Appellant.

James M. Graves, Fayetteville, AR, argued (Gary V. Weeks, on the brief), for Appellee.

Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Night Clubs, Inc., doing business as Regina's House of Dolls II (Regina's), appeals from the district court's dismissal with prejudice of its federal civil rights action. Regina's argues that the district court erred in abstaining under the Younger doctrine, ¹ and that even if Younger abstention was appropriate, dismissal with prejudice was not. We affirm the district court's decision to abstain pursuant to Younger, but we vacate the dismissal and remand for the entry of a stay. We grant both parties' motions to supplement the record.

I.

Regina's leases certain property located at 7900 Highway 71 in Fort Smith, Arkansas. The leased property is zoned as "Commercial-5," a designation which allows Regina's to engage in "retail uses that serve the motoring public" and are "characterized by a high level of vehicular activity." Fort Smith Mun.Code § 27-180. On March 20, 1997, Regina's filed a Business Registration Application with the City of Fort Smith (the City), requesting permission to open a nightclub on the property. Because nightclubs are listed as allowable on land zoned as Commercial-5, see Fort Smith Mun.Code § 27-106, the Fort Smith Planning Commission approved the application. Less than two weeks later, on April 1, 1997, Regina's filed a second application, this time requesting permission to open an exotic (i.e., nude) dancing facility at the same location.

The staff at the Planning Commission determined that exotic dancing was not a "listed commercial entertainment use" within the meaning of sections 27-96 and 27-106 of the zoning ordinance. ² Pursuant to section 27-97 of the zoning ordinance, the matter was referred to William W. Harding, the Director of Planning, for "an administrative decision as to the appropriate zones" in which nude dancing, an unlisted use, would be allowed. Before rendering a decision, Harding consulted with the City Attorney, who informed Harding that a total ban would probably not survive a court challenge. (Jt.App. at 502.) Harding determined that nude dancing would be permissible only in property designated as Commercial-5-SPL-D, a zoning classification reserved for uses serving "the motoring public" which "are characterized by a higher level of vehicular activity." Fort Smith Mun.Code § 27-181(a) (emphasis added). At the time of his decision, only one one-half acre plot of land in Fort Smith was zoned as Commercial-5-SPL-D. (Jt.App. at 502.) Harding explained his decision in the following way in his letter to Regina Capps, owner of Regina's:

As outlined within the procedures of [section 27-97,] in my capacity of [sic] Director of Planning I have made an administrative decision that exotic dancing facilities and adult oriented businesses shall be assigned to the Commercial-5-SPL-D zoning district. This decision is made as the four Commercial-5 special use zones are categorized by virtue of the use intensities within the respective categories. Intensities are evaluated on the basis of anticipated traffic and/or pedestrian movements associated with a particular use and other characteristics relative to the impact to surrounding property.

(Jt.App. at 319.) Harding went on to explain that because the property at 7900 Highway 71 was zoned Commercial-5, the property did not qualify for the intended use. Accordingly, Harding informed Capps that the application for a business license had been denied. (Id.)

Regina's appealed Harding's decision to the full Planning Commission. See Fort Smith Mun.Code § 27-97(3). Pursuant to § 27-97(4), the Commission was required to consider "the nature of the proposed use and its compatibility with uses permitted in the zones for which the use is proposed" before it rendered its decision. Accordingly, the Commission held a public hearing, at which it solicited arguments from counsel and comments from citizens in attendance. Regina's attorney argued that Harding's decision conflicted with the plain meaning of the Municipal Ordinance and the First Amendment to the United States Constitution. (Jt.App. at 368, 385.) After the discussion concluded, the Commission voted unanimously to affirm Harding's decision denying Regina's application.

Pursuant to Fort Smith Municipal Code section 27-97(5) and Arkansas Code Annotated section 14-56-425 (1987), Regina's filed a lawsuit in Sebastian County Circuit Court for review of the Planning Commission's decision. This suit was filed on June 12, 1997. The original complaint alleged federal constitutional violations in addition to state law claims, but Regina's voluntarily amended the complaint and eliminated the federal constitutional claims. On October 15, 1997, the Sebastian County Circuit Court ruled that Regina's had failed to perfect its appeal from the Planning Commission's decision; accordingly, it dismissed Regina's state action. Regina's filed a notice of appeal on November 14, 1997, arguing that the state's perfection rules are unconstitutionally vague. This appeal was pending before the Supreme Court of Arkansas at the time this case was submitted.

On July 24, 1997, Regina's filed a civil rights action under 42 U.S.C. § 1983 in federal district court, naming as defendants the City of Fort Smith, various members of the Planning Commission, and the Planning Commission itself. ³ Regina's federal complaint alleges violations of its First Amendment rights and requests monetary damages in addition to injunctive relief. On August 6, 1997, the City filed a motion to dismiss Regina's federal suit, arguing that the district court should abstain from accepting jurisdiction in deference to the ongoing state proceeding. On September 3, 1997, the district court granted the City's motion and dismissed Regina's federal action with prejudice, relying on the Younger doctrine. After the state circuit court dismissed Regina's appeal, Regina's filed a motion for amendment of judgment and new trial in federal district court, contending that there was now no ongoing state court proceeding to support Younger abstention. The motion was denied. Regina's appeals, arguing that the Younger doctrine is inapplicable and that, in any case, dismissal with prejudice was inappropriate.

II.

The Supreme Court recently affirmed that federal courts " 'have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given,' " and that " '[t]he one or the other would be treason to the Constitution.' " New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 358, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (NOPSI ) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821)). This is true because "Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds." Id. at 359. The Court stressed in NOPSI that the federal courts' "virtually unflagging" duty to exercise jurisdiction "does not eliminate ... the federal courts' discretion in determining whether to grant certain types of relief." Id. (internal quotations omitted). The common law discretion of courts to withhold equitable forms of relief predates the enactment of the statutes defining federal jurisdiction, and the Supreme Court has therefore interpreted the jurisdictional statutes as preserving this traditional discretion in the federal courts. See id. The court has formulated various "abstention" doctrines, which are not "rigid pigeonholes into which federal courts must try to fit cases," id. (internal quotations omitted), but rather classes of cases in which federal courts may properly exercise their traditional discretion to withhold equitable or quasi-equitable forms of relief.

In Younger, the Supreme Court held that federal courts may not enjoin pending state court criminal proceedings except in very unusual situations. The Younger doctrine has since been expanded to prohibit federal courts from interfering in certain pending state civil cases, see Huffman v. Pursue, Ltd. 420 U.S. 592, 603-07, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), as well as pending state administrative proceedings which are judicial (as opposed to legislative) in nature, see Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431-32, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

There are essentially three issues that must be addressed in determining whether to invoke the Younger abstention doctrine: (1) whether the action complained of constitutes an ongoing state judicial proceeding; (2) whether the proceedings implicate important state interests; and (3) whether there is an adequate opportunity in the state proceedings to raise constitutional challenges. See Middlesex, 457 U.S. at 432, 102 S.Ct. 2515. If all three questions are answered affirmatively, a federal court should abstain unless it detects "bad faith, harassment, or some...