Playtime Theaters, Inc. v. City of Renton

• Citation: 748 F.2d 527
• Decision Date: 28 November 1984
• Docket Number: Nos. 83-3805,83-3980,s. 83-3805
• Parties: PLAYTIME THEATERS, INC., a Washington corporation, et al., Plaintiffs- Appellants, v. The CITY OF RENTON, et al., Defendants-Appellees. The CITY OF RENTON, a municipal corporation, et al., Plaintiffs-Appellants, v. PLAYTIME THEATERS, INC., a Washington corporation, et al., Defendants- Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 527

748 F.2d 527

PLAYTIME THEATERS, INC., a Washington corporation, et al., Plaintiffs- Appellants, v. The CITY OF RENTON, et al., Defendants-Appellees.

The CITY OF RENTON, a municipal corporation, et al., Plaintiffs-Appellants, v. PLAYTIME THEATERS, INC., a Washington corporation, et al.,

Defendants- Appellees.

Nos. 83-3805, 83-3980.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1984.

Decided Nov. 28, 1984.

Robert Eugene Smith, Encino, Cal., for Playtime Theaters, Inc.

Lawrence J. Warren, Daniel Kellogg, Warren & Kellogg, Renton, Wash., for City of Renton.

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER and FARRIS, Circuit Judges, and JAMESON, ^* District Judge.

FLETCHER, Circuit Judge:

These consolidated cases are declaratory judgment actions involving the constitutionality of the City of Renton's zoning ordinances regulating the location of adult motion picture theaters.

In case number 83-3805, Playtime Theaters, Inc. ("Playtime") appeals the district court's order denying a permanent injunction and finding that the ordinance furthers a substantial governmental interest, is unrelated to the suppression of speech, and is no more restrictive than necessary to further that interest. Case number 83-3980 is a declaratory action involving the same parties and issues, filed by the City of Renton in state court after federal proceedings had begun. This action was twice removed to federal court and twice remanded to state court. Renton appeals the district court's denial of its motion for fees and costs on the second removal. We reverse in number 83-3805 and affirm in number 83-3980.

I BACKGROUND

In April, 1981, the City of Renton enacted ordinance number 3526 which prohibited any "adult motion picture theater" ¹ within one thousand feet of any residential zone or single or multiple family dwelling, any church or other religious institution, and any public park or area zoned for such use.

The ordinance further prohibited any such theater from locating within one mile of any public or private school. At the time this ordinance was enacted, no adult theaters were located in Renton, although there were other theaters within the proscribed area.

In January, 1982, Playtime acquired two existing theaters in Renton with the purpose of exhibiting adult motion pictures in at least one, the Renton Theater, which is located within the area proscribed by ordinance number 3526. ²

Just prior to closing the sale of the theater, on January 20, 1982, Playtime filed an action in federal court, seeking a declaration that the ordinance was unconstitutional and a permanent injunction against its enforcement.

A month later, on February 19, 1982, Renton brought suit in state court seeking a declaratory judgment that the ordinance was constitutional on its face and as applied to Playtime's proposed use. The complaint alleged that an actual dispute existed because of the pending federal lawsuit and because Playtime asserted that the ordinance was unconstitutional. On February 22, 1982, Renton moved to dismiss Playtime's federal action on the grounds that the federal court should abstain in favor of the state action, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

On March 8, 1982, Playtime removed the state action to federal court and Renton moved to remand. On March 25, the magistrate filed his recommendation that abstention was improper in the first action and on April 9, he recommended that the removed state action be remanded for lack of jurisdiction because the complaint failed to state a claim upon which relief could be granted. The district court approved both recommendations, denying the motion to dismiss the federal action on May 5, 1982, and remanding the state action on January 13, 1983.

On May 3, 1982, Renton passed an emergency ordinance, amending ordinance number 3526. The new ordinance added an elaborate statement of reasons for the enactment of the ordinances, ³ it further defined On June 23, 1982, the magistrate heard Playtime's motion for preliminary injunction and Renton's motions to dismiss and for summary judgment. On November 5, 1982, he filed his recommendation to deny On February 8, 1983, the parties entered into a stipulation to submit the case for hearing on whether a permanent injunction should issue on the basis of the record already developed. On February 17, 1983, the district court vacated the preliminary injunction and denied the permanent injunction. The court found that 520 acres were available as potential sites for adult theater use and that this ordinance did not substantially restrict first amendment interests. ⁷ The court further held that Renton was not required to show specific adverse impact on Renton from the operation of adult theaters but could rely on the experiences of other cities. Lastly, the court found that the purposes of the ordinance were unrelated to the suppression of speech and that the restrictions it imposed were no greater than necessary to further the governmental interest.

                the word "used," 4 and it reduced the required distance from schools from one mile to 1000 feet.  The ordinance also contained a clause stating that the federal litigation created an emergency making immediate adoption of the new ordinance necessary. 5   The ordinance was reenacted on June 14, 1982, without the emergency clause
                Renton's motion and to grant Playtime a preliminary injunction.  He found that the ordinance "for all practical purposes excludes adult theaters from the City," that only 200 acres were not restricted by the ordinance, and that all of these areas were "entirely unsuited to movie theater use."    He further found that Renton had not established a factual basis for the adoption of the ordinance and that the motives behind the ordinance reflected "simple distaste for adult theaters because of the content of the films shown."    On January 11, 1983, the district court entered an order approving and adopting these findings and granting a preliminary injunction. 6   For the first time, Playtime began showing adult movies at the Renton Theater
                

On May 19, 1983, after denial of the permanent injunction, and after the notice of appeal was filed in this court, Renton filed an amended complaint in state court seeking, in addition to the originally requested declaratory relief, abatement of the operation of Playtime's adult theaters. On June 8, 1983, Playtime removed the action to federal court on the ground that Renton sought to enforce statutes that had been declared unconstitutional by this court. The district court remanded because the case did not arise under federal law; the federal issue was only a defense. It denied Renton's motion for costs and fees because it found that the petition raised serious questions of law and that Playtime had not acted in bad faith. Renton appeals the denial of costs and fees.

II JURISDICTION

Renton argues that abstention was appropriate in this case because it involves vital state interests, see Railroad Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941), and because the exercise of federal jurisdiction would interfere with the pending state action, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We do not agree.

A. Pullman Abstention is Inappropriate in This Case.

We recently held that the Pullman abstention doctrine was inapplicable in a facial challenge to Washington's anti-obscenity statute. J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482 (9th Cir.1984). We recognized that Pullman abstention would almost never be appropriate in first amendment cases because such cases involve strong federal interests and because abstention could result in the suppression of free speech. Id. at 487-88. Similarly, we find that the district court in the case at hand appropriately declined to abstain because "abstention would not eliminate or materially alter the constitutional issues presented." Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 137 (9th Cir.1980), aff'd mem., 454 U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981).

B. Younger Abstention is Inappropriate in This Case.

We find Younger abstention inappropriate as well. Federal courts, concerned for federal-state comity, have employed Younger abstention to prevent federal interference with pending state criminal proceedings. Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 469 (9th Cir.1984); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). In this case, Renton asked the district court to abstain in favor of a state court action that sought only a declaration of the ordinance's constitutionality.

The cases applying Younger abstention have arisen in criminal or quasi-criminal contexts. We have refused to extend Younger to civil cases generally. See Goldie's Bookstore, 739 F.2d at 469-70; Champion International Corp. v. Brown, 731 F.2d 1406 (9th Cir.1984). We agree with the district court's refusal to do so in this case as well. As we discussed in Miofsky v. Superior Court, 703 F.2d 332 (9th Cir.1983), in each of the cases in which Younger has been applied in a civil context, the civil suits "bore similarities to criminal proceedings or otherwise implicated state interests vital to the operation of state government." Id. at 337 (emphasis added). These dual requirements are not present in a civil case seeking only declaratory relief.

Playtime did not violate the ordinance prior to challenging it. Thus, it was not even potentially subject to the sort of enforcement action to which Younger applies. In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), the plaintiff challenged a local ordinance prohibiting topless dancing in bars. Three bars in the town were affected...