Moore v. City of Asheville, N.C.

• Decision Date: 25 January 2005
• Docket Number: No. 04-1003.,04-1003.
• Citation: 396 F.3d 385
• Parties: Carroll MOORE, Plaintiff-Appellant, v. CITY OF ASHEVILLE, NORTH CAROLINA; James L. Westbrook, Jr., in his official capacity as the City Manager of Asheville, North Carolina; Asheville Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

396 F.3d 385

Carroll MOORE, Plaintiff-Appellant, v. CITY OF ASHEVILLE, NORTH CAROLINA; James L. Westbrook, Jr., in his official capacity as the City Manager of Asheville, North Carolina; Asheville Police Department, Defendants-Appellees.

No. 04-1003.

United States Court of Appeals, Fourth Circuit.

Argued: November 30, 2004.

Decided: January 25, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Mathew D. Staver, Liberty Counsel, Longwood, Florida, for Appellant. Sharon Tracey Barrett, Patla, Straus, Robinson & Moore, P.A., Asheville, North Carolina, for Appellees. ON BRIEF: Michael Schmidt, Patrick Henry Justice Center, Laurinburg, North Carolina; Erik W. Stanley, Rena M. Lindevaldsen, Anita L. Staver, Joel L. Oster, Liberty Counsel, Longwood, Florida, for Appellant. Curtis W. Euler, City Attorney's Office, Asheville, North Carolina, for Appellees.

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge LUTTIG and Judge KING joined.

OPINION

NIEMEYER, Circuit Judge.

Carroll Moore, a carpenter from Tuckasegee, North Carolina, regularly engages in street preaching in Asheville, North Carolina, and elsewhere. In March and again in April 2003, Moore was cited for violations of Asheville's noise ordinance, Asheville, N.C.Code of Ordinances § 10-84, when his preaching allegedly interfered with permitted events taking place in Asheville's public forums. In both instances, Moore paid fines, which he did not appeal administratively or to the state courts. Rather, after the time for exhausting state remedies apparently had expired, he commenced this action against the City of Asheville and its officials under 42 U.S.C. § 1983, alleging that his conduct was protected by the First and Fourteenth Amendments to the U.S. Constitution and that Asheville's noise ordinance, as well as related ordinances, was unconstitutional both on its face and as applied to his circumstances. He seeks a declaratory judgment, injunctive relief, and damages.

The district court denied the defendants' motion to dismiss but stayed the proceedings "pending the outcome o[f] state court proceedings," based on the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct 746, 27 L.Ed.2d 669 (1971) (holding that a federal court should generally refrain from intervening in ongoing state criminal proceedings), and its progeny.

Although this case raises an issue not directly addressed by Younger or its progeny, or heretofore by our court, it presents the same concerns for federalism and comity that animate established Younger jurisprudence, and therefore we conclude, as a "necessary concomitant" of Younger, that abstention was appropriate. See Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). In particular, we hold that a defendant to a coercive state administrative proceeding must exhaust his state administrative and judicial remedies and may not bypass them in favor of a federal court proceeding in which he seeks effectively "to annul the results" of a state administrative body. Id. at 608-09, 95 S.Ct. 1200; see also Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 627, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (applying Younger to state administrative proceedings). Accordingly, we affirm the district court's application of the Younger doctrine to the circumstances of this case, and, because state proceedings have concluded, we remand this case to the district court with instructions to dismiss the complaint in its present form.

I

Moore has spent his weekends over the past seven years preaching the Christian Gospel on streets, sidewalks, and other public rights-of-way in North Carolina. On two occasions, while preaching in public forums in the City of Asheville, Moore was cited by police officers for violating Asheville's noise ordinance.

Asheville's noise ordinance prohibits activity "on any premises or public area in the city, which activity produces or constitutes a noise disturbance on occupied neighboring premises or public area." Asheville, N.C., Code of Ordinances § 10-83. The ordinance defines "noise disturbance" as "any unreasonably loud and raucous sound or noise which: (1) Endangers or injures the health or safety of humans or animals; (2) Endangers or injures personal or real property; or (3) Disturbs a reasonable person of normal sensitivity." Id. § 10-82. In addition to the general prohibition against noise disturbances, the ordinance outlaws specific activities that tend to "produce unreasonably loud and raucous noises," including "[s]treet vending or peddling" and "[t]he use of any drum, loudspeaker or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show, or sale or display of merchandise." Id. § 10-84.

An individual charged under and found to have violated the noise ordinance can appeal to the Noise Ordinance Appeals Board, id. § 10-86, and the decision of the Appeals Board can be appealed further to the City Manager, id. Finally, North Carolina common law allows judicial review of the City Manager's decision by a writ of certiorari issued by a state Superior Court. See Russ v. Bd. of Educ., 232 N.C. 128, 59 S.E.2d 589, 591 (1950).

Moore received the first of his citations on March 29, 2003, when he began preaching near Pritchard Park while a permitted peace rally was taking place. An Asheville police officer told Moore that he would need to leave the area and move to the other side of the street. Moore proceeded across the street, as directed, but he continued to preach to the crowd attending the peace rally. The officer then cited Moore for engaging in "street vending or peddling" so as to cause a noise disturbance, in violation of Asheville Ordinance § 10-84. The citation assessed a $50 fine which Moore paid without challenging the citation.

Moore received his second citation on April 19, 2003, when he preached near City County Plaza, where a permitted event was taking place. This citation charged that Moore was "causing [a] disturbance by shouting a[nd] yelling at [the] crowd during [a] permitted event." He was again charged under the noise ordinance, this time for using a "drum, loudspeaker or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show, or sale or display of merchandise." Because it was Moore's second violation of the noise ordinance, the citation assessed a fine of $100. Moore appealed this citation to the Noise Ordinance Appeals Board, as authorized by Asheville Ordinance § 10-86. After the Board affirmed the violation, Moore paid the $100 fine and sought no further review of the citation.

Rather than pursuing further his rights of state administrative appeal and judicial review, Moore apparently let the times for taking appeal from his citations lapse,¹ and he commenced this action in federal court on August 28, 2003. In his complaint, which names the City of Asheville, its City Manager, and its police department as defendants, Moore facially challenges the constitutionality of Asheville's noise ordinance and related ordinances and challenges the noise ordinance as applied to him in March and April 2003. He alleges that the ordinances violated and continue to violate his freedom of speech, his right peaceably to assemble, and his right to the free exercise of religion, as secured by the First and Fourteenth Amendments.

In his complaint, Moore recites the defendants' actions on both March 29, 2003 and April 19, 2003, when he was cited for violations of the noise ordinance, and he alleges that he continues to engage in street preaching and "fears repeated civil or criminal citations." He alleges further that Asheville's "Noise Disturbance Policy, as applied, has caused and will continue to cause, [him] to suffer actual and impending irreparable injury and damage" and that he has incurred "constitutional and monetary damages as a result of Defendants' actions." The resulting damages, he alleges, were both "direct and consequential." For relief, Moore requests an injunction prohibiting the defendants "from enforcing the policies against Plaintiff"; a declaratory judgment declaring that the noise ordinance is invalid on its face and "as applied by Defendants insofar as it prohibits Plaintiff from street preaching"; and an award of "such damages as are reasonable and just under the circumstances as a direct and proximate result of the Defendants' violations of Plaintiff's constitutional rights." In addition to challenging the noise ordinance, Moore also facially challenges related statutes that were not enforced against him, including Asheville's public speaking and picketing ordinances.

On the City of Asheville's motion to dismiss, the district court dismissed the claims against the City Manager because they were redundant with claims against the City itself and the claims against the Asheville Police Department because, under North Carolina law, the department is not a person capable of being sued. It also dismissed the claims challenging the public speaking and picketing ordinances because Moore failed to demonstrate a "credible threat of prosecution" under them. The court, however, denied the motion to dismiss the remainder of the complaint against the City, concluding rather that, under the holding of Younger v. Harris, it should abstain from determining Moore's remaining claims against the City. Accordingly, the court stayed the case "pending the outcome of the state proceedings." By this time, it was certain that no state proceedings were pending and that the times for appealing the citations had elapsed.

From the district court's November 13, 2003 order, Moore filed this appeal, challenging only the district court's order staying his claims against the City under the Younger doctrine.

II

Because the district court stayed Moore's claims, rather than...