Bickham v. Lashof
| Citation | 620 F.2d 1238 |
| Decision Date | 29 April 1980 |
| Docket Number | No. 78-2559,78-2559 |
| Parties | Arnold BICKHAM, M.D., Plaintiff-Appellant, v. Joyce C. LASHOF, M.D., Individually and as Director of the State of Illinois Department of Public Health, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Sophia H. Hall, Chicago, Ill., for plaintiff-appellant.
John E. Dienner III, Asst. State's Atty., Joseph D. Keenan, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.
Before SWYGERT, PELL and TONE, Circuit Judges.
The principal issue in this appeal is whether the doctrine of abstention was properly applied by the district court in dismissing a claim attacking on constitutional grounds the Illinois Ambulatory Surgical Treatment Center Act, which is directed to regulating facilities utilized to perform abortions. Plaintiff-appellant Arnold Bickham, a physician licensed to practice in Illinois and the owner of an abortion clinic, the Water Tower Reproductive Center, seeks reversal of the district court order dismissing the first count of a two count complaint brought against various officials of the Illinois Department of Public Health, the Illinois Attorney General, William J. Scott, and the State's Attorney of Cook County, Bernard Carey. Count I alleged that the Ambulatory Surgical Treatment Center Act, Ill.Rev.Stat. ch. 1111/2, § 157-8.1 et seq. (1977), violates the Constitution because it regulates a physician's performance of first trimester abortions. The district court ruled that it would abstain from deciding Count I under the principles of equity, comity, and federalism, concluding that a pending suit filed in the circuit court of Cook County by the Water Tower Reproductive Center presented the identical constitutional issues raised in Dr. Bickham's federal complaint. 1 We hold that abstention was not properly exercised here and accordingly, we reverse the ruling of the district court.
In order to fully appreciate the issues on appeal, we must trace the rather complex procedural history of this controversy, which was shaped both in state court and federal court.
The State of Illinois requires that physicians must perform abortions in (1) a licensed ambulatory surgical treatment center; (2) a hospital, an ambulatory surgical treatment center, hospital or care facility which is operated by the State; or (3) an ambulatory surgical treatment center, hospital, or care facility operated by the federal government. Ill.Rev.Stat. ch. 111, § 4433 (1977). Licensed centers are intermediate facilities that provide more equipment and greater services than are available in a physician's office but less equipment and fewer services than are provided by a licensed hospital. 2 On September 27, 1976 Dr. Bickham submitted an application to the Illinois Department of Public Health for a license to operate the Water Tower Reproductive Center (the Center) as an ambulatory surgical treatment center for the purpose of performing first trimester abortions. On November 18, 1976 the Department approved the construction of the facility, and on the following day the Chicago office of the Zoning Administrator issued an occupancy certificate. Although his application for a license had not yet been approved by the Department of Public Health, Dr. Bickham then began to perform abortions.
As a result of plaintiff's conduct, on December 9, 1976, the Director of the Department of Public Health initiated a suit in the circuit court of Cook County, seeking an injunction and a temporary restraining order prohibiting Dr. Bickham from performing abortions and other surgical procedures at the Center until the facility had been licensed by the Department. 3 Dr. Bickham answered the complaint and, as an affirmative defense, challenged the constitutionality of the Act on First and Fourteenth Amendment grounds. On December 10, 1976 an evidentiary hearing was held, where the constitutional question was raised and briefly argued. Three days later, on December 13, 1976, the circuit court entered a permanent injunction enjoining Dr. Bickham and the Center from conducting abortions at the facility until a license was issued. Without articulating its reasons, the court held that the Ambulatory Surgical Treatment Center Act "is valid and constitutional." No appeal from the injunction was taken to the Illinois appellate court.
The direction of the controversy then switched to the federal forum. On the afternoon of the same day that the Cook County Circuit Court issued the injunction, plaintiff on his own behalf filed the instant action in the district court; the Center was not a named plaintiff in the suit. The complaint alleged that the Ambulatory Surgical Treatment Center Act was unconstitutional and requested the district court to restrain defendants from enforcing the Act against plaintiff or his patients. The following day Dr. Bickham filed a motion for a temporary restraining order seeking to enjoin the enforcement of the Act. The district court granted plaintiff's request. The temporary restraining order was dissolved, however, two days later on defendants' representation that a license would be issued no later than the following day. In compliance with that representation, the Center received a provisional license to operate an ambulatory surgical treatment center on December 17, 1976.
Dr. Bickham then filed an amended complaint in federal court. Count I, upon which the instant appeal rests, attacked the constitutionality of the Act, alleging violations both of the Due Process Clause and the Equal Protection Clause. Plaintiff alleged that the statute invaded his right to privacy and also violated his right to equal protection because the Act requires that anywhere that abortions are performed or any place that is used primarily for the performance of surgical procedures must be licensed as a surgical treatment center. He further alleged that the rules and regulations promulgated by the Department of Public Health were unconstitutionally vague. Declaratory and injunctive relief were requested. Defendants answered that the constitutional issues raised in the complaint had been fully litigated and resolved in the December 13, 1976 state court proceeding. They maintained that because plaintiff did not appeal the circuit court's decision, he had failed to exhaust his state court remedies and, consequently, was barred from raising the same questions in federal court. They also asserted that the principles of comity and federalism as set forth in Younger v. Harris, 401 U.S. 37, 89 S.Ct. 611, 21 L.Ed.2d 558 (1971), mandated the case be dismissed. By July 1977 the motions were fully briefed. The case then lay dormant in the district court for over a year. On October 11, 1978, prior to the district court ruling on the motion to dismiss, the Center's license was revoked following a hearing before the Department of Public Health, where the Center was charged with refusing to allow inspections at the times requested.
On October 23, 1978 the district court, on plaintiff's motion, entered a second temporary restraining order enjoining defendants from enforcing the Act against plaintiff pending a determination on the motion to dismiss. On November 1, 1978 the defendants' motion was denied. The district court rejected defendants' argument grounded on res judicata, stating that: citing Wheeler v. Aetna Casualty & Surety Co., 57 Ill.2d 184, 311 N.E.2d 134 (1974); Daley v. License Appeal Commission, 55 Ill.App.2d 474, 205 N.E.2d 269 (1965). The district court also held that this was not a proper case for applying Younger abstention since there was no proceeding pending in the state court.
Once again, our focus must shift back to the state court. On November 13, 1978 the decision revoking the Center's license on October 11, 1978 was appealed by the corporation (Water Tower Reproductive Center, Ltd.) to the circuit court of Cook County pursuant to the Illinois Administrative Procedure Act, Ill.Rev.Stat. ch. 127, § 1001 et seq. (Supp.1979). 4 Although plaintiff is the sole owner of the Center, he is not a party to this action, which still pends before the circuit court. Subsequently, defendants filed a motion requesting the district court to reconsider the November 1 denial of their motion to dismiss. In support of the motion, defendants argued that the administrative review action was a "pending state proceeding" and that plaintiff was capable of raising there the same constitutional issues challenging the Act raised in the federal complaint. In agreement with defendants, the district court stayed the proceedings concerning Count I pending the outcome of the Center's administrative review action in state court and then on November 27, 1978 amended its order by dismissing Count I. On December 7, 1978 plaintiff presented to the district court a motion to reconsider the order of dismissal. The motion was based on the decision of the circuit court denying the Center's motion for stay of the Department's license revocation order pending the full hearing of the administrative review. In that decision, the circuit court stated that the testimony adduced before it did not establish irreparable harm to the Center, but rather "related to irreparable harm that may occur to Doctor Bickham." Following a hearing, the district court denied the motion to reconsider on December 7, 1978 and this appeal ensued. 5
Plaintiff contends that the district court erred in declining to entertain Count I on the basis of equity, comity, and federalism. Our inquiry into whether abstention was properly invoked here begins with Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct....
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