354 F.Supp. 126 (N.D.Ind. 1973), Civ. 72 H 259 2, Barrick Realty, Inc. v. City of Gary, Indiana

Docket Nº:Civ. 72 H 259 2
Citation:354 F.Supp. 126
Party Name:Barrick Realty, Inc. v. City of Gary, Indiana
Case Date:January 18, 1973
Court:United States District Courts, 7th Circuit, Northern District of Indiana

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354 F.Supp. 126 (N.D.Ind. 1973)

BARRICK REALTY, INCORPORATED, an Indiana corporation, et al., Plaintiffs,


CITY OF GARY, INDIANA, et al., Defendants.

Civ. No. 72 H 259(2).

United States District Court, N.D. Indiana

Jan. 18, 1973.

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G. Edward McHie and Charles A. Myers, Hammond, Ind., for plaintiffs.

J. Robert Miertschin, Jr., Asst. City Atty., Gary, Ind., Ivan Bodensteiner, Valparaiso University, Valparaiso, Ind., for defendants.


ESCHBACH, District Judge.

This action for declaratory and injunctive relief challenges the validity of Ordinance No. 4685 of the City of Gary, Indiana, which prohibits the display of "For Sale", "Sold", or similar signs on premises located in residential areas of the city. 1 The plaintiffs are Barrick

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Realty, Inc., Daniel W. Barrick, Jr., its president, and Thomas G. Harrison, a homeowner and resident of Gary. The defendants are the City of Gary and certain city officials. Plaintiffs contend that the ordinance is ultra vires under Indiana laws relating to the powers of municipal corporations, that it deprives them of rights secured by the constitutions of the United States and the State of Indiana, and that it violates federal and state statutory provisions relating to fair housing.

Plaintiffs commenced this action on October 6, 1972, by filing their complaint in Lake Superior Court, Room No. 1, Lake County, Indiana. The case was removed to this court by the filing of defendants' petition for removal on October 12, 1972. A hearing on plaintiffs' application for preliminary injunction was held at 2:00 P.M. on October 27, 1972, in the United States District Courtroom in Hammond, Indiana. At said time and place, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, it was ordered by this court that the trial on the merits be consolidated with the hearing on plaintiffs' application for preliminary injunction. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, this memorandum shall constitute the court's findings of fact and conclusions of law.


This action was properly removed to this court by defendants pursuant to 28 U.S.C. § 1441(b), original jurisdiction existing under 28 U.S.C. §§ 1331 and 1343(3) and (4). On October 17, 1972, plaintiffs filed a motion to remand this action to the state court. For the sake of convenience, the court's ruling on the motion, and the reasons therefor, have been included in this memorandum along with the decision on the merits. For the reasons set forth below, plaintiffs' motion to remand must be denied.

In support of their motion to remand, plaintiffs first contend that a resolution of the issues of state law raised by their complaint may make it unnecessary to reach the federal constitutional questions, and that this court, in accordance with the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), should therefore abstain from exercising jurisdiction so that such questions of state law may be determined by the state court. Secondly, they argue that the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), requires this court to abstain in order to avoid federal interference with local enforcement of a penal ordinance. Neither of the theories advanced by plaintiff supports abstention under the circumstances of this case.

The policy embodied in Younger v. Harris, supra, has no application here where no prosecution is pending under the challenged ordinance and where declaratory as well as injunctive relief is sought. See Perez v. Ledesma, 401 U.S. 82, 120-130, 91 S.Ct. 674, 695-700, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring

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in part and dissenting in part); Wulp v. Corcoran, 454 F.2d 826, 830-832 (1st Cir. 1972). Application of the Younger doctrine here would not justify remanding the case to the state court as requested by plaintiffs, but would instead require dismissal for lack of authority to grant injunctive relief, thus forcing plaintiffs to violate the ordinance in order to obtain a hearing for their constitutional claims. See Younger v. Harris, supra. Viewed in this light, plaintiffs' reliance upon Younger is difficult to comprehend. Moreover, it should be noted that since the Younger doctrine rests heavily upon federal deference to administration by a state or municipality of its own criminal laws, see Younger v. Harris, supra, 401 U.S. at 44, 91 S.Ct. at 750, it would be inappropriate to apply the doctrine to the present case. The City of Gary removed the action to this court, specifically asked for a federal decision as to the validity of its ordinance, and vigorously argued against the application of Younger.

Sarfaty v. Nowak, 369 F.2d 256 (7th Cir. 1966), cited by the plaintiffs, is clearly distinguishable from the present case. In upholding the lower court's decision to abstain where the constitutionality of a penal provision was challenged prior to its enforcement, the Court of Appeals relied heavily upon the fact that the ordinance in that case might be interpreted and enforced by local officials in a manner which would avoid the constitutional issue. In the present case, the record is clear as to the interpretation given this ordinance by defendants and the imminent threat of its enforcement against these plaintiffs.

The traditional basis for abstention under the principles set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), is absent in this case. The ordinance challenged here is plainly worded and is not susceptible of a limiting construction which might avoid the constitutional question as to its validity. Nor are the relevant state statutes defining the powers of municipal corporations in Indiana susceptible of a construction which would render this ordinance ultra vires under Indiana law. (See discussion of the merits, infra.) Where there is no ambiguity in a state statute, a federal court should not abstain but should proceed to decide the federal constitutional claim. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967). The abstention rule applies only where "the issue of state law is uncertain". Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965).

Plaintiffs also demand abstention by this court in order to give the state courts an opportunity to decide the question of the constitutionality of the ordinance under the Indiana constitution. However, the state constitutional provisions upon which plaintiffs primarily rely in their brief, relating to equal protection, due process, and freedom of speech, are merely counterparts of federal constitutional provisions. In the absence of any substantial claim under the state constitution involving considerations separate and distinct from those of the federal constitution, abstention is not called for. See Reid v. Board of Education of City of New York, 453 F.2d 238, 244 (2d Cir. 1971), citing Wisconsin v. Constantineau, supra. Only in exceptional circumstances is a federal court justified in declining to decide a case properly within its jurisdiction by virtue of the abstention doctrine. Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. at 395; Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480 (1949). It is difficult to conceive of a case raising federal constitutional issues under the First and Fourteenth Amendments which would not usually raise practically identical issues under the constitution of the state in which the federal court is sitting. If this court were to abstain in every case

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which presented such state constitutional questions, abstention would be the rule rather than the exception, resulting in a heavy and unwarranted burden of expense and delay upon litigants.

Finally, this court has found no case in which remand of a properly removed action has been the vehicle for abstention by a federal court. Remand would be tantamount to a dismissal from this court since it would result in the complete abdication of federal jurisdiction over the case. The better practice in abstention cases is retention of jurisdiction, rather than dismissal. Zwickler v. Koota, supra, 389 U.S. at 244, 88 S.Ct. at 393. See also England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In view of the foregoing conclusions with respect to abstention, however, it is unnecessary to decide whether remand to the state court would have been appropriate.


Plaintiffs assert in their complaint, but do not argue in their brief, that the City of Gary had no power as a municipal corporation under Indiana law to pass Ordinance No. 4685 and that the ordinance is therefore ultra vires and invalid. This contention is wholly without merit. The ordinance was clearly authorized by Ind.Ann.Stat. § 48-1466 (Burns 1963 Repl.), I.C.1971, 18-1-1.5-16, which provides that:

[i]n addition to all powers specifically enumerated ... every city may ... exercise any power or perform any function necessary in the public interest in the conduct of its municipal or internal affairs, which is not prohibited by the Constitution of this state or the Constitution of the United States, and which is not specifically denied or pre-empted by law.

It is further provided that "[t]he powers of cities ... shall be construed liberally in favor of such cities ..." and that the legislature intended "... to grant to cities full power and right to exercise all governmental authority necessary for the effective operation and conduct of government with respect to their...

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