Executive Art Studio, Inc. v. City of Grand Rapids

• Decision Date: 09 October 2001
• Docket Number: No. 1:01-CV-196.,1:01-CV-196.
• Parties: EXECUTIVE ART STUDIO, INC, d/b/a Velvet Touch, Plaintiff, v. CITY OF GRAND RAPIDS, Defendant.
• Court: U.S. District Court — Western District of Michigan

Page 755

179 F.Supp.2d 755

EXECUTIVE ART STUDIO, INC, d/b/a Velvet Touch, Plaintiff, v. CITY OF GRAND RAPIDS, Defendant.

No. 1:01-CV-196.

United States District Court, W.D. Michigan, Southern Division.

October 9, 2001.

Allan S. Rubin, Southfield, MI, Gregory F. Lord, Sterling Heights, MI, for Plaintiff.

Daniel A. Ophoff, Grand Rapids, MI, for Defendant.

OPINION

QUIST, District Judge.

Plaintiff, Executive Arts Studio, Inc. d/b/a Velvet Touch ("Executive Arts"), filed this action seeking declaratory and injunctive relief against Defendant, the City of Grand Rapids (the "City"). In its first amended complaint, Executive Arts alleges, among other things, that Ordinance No. 77-31, being that part of the City's Zoning Ordinance which regulates adult businesses, and Ordinance No. 01-07, which amended the definition of "adult bookstore" under the City's Zoning Ordinance, are unconstitutional both facially and as applied to Executive Arts. Now before the Court is the City's motion requesting this Court to abstain.

Facts

Executive Arts is the lessee of commercial premises located within the City. The location is within 500 feet of a residential zone and within 1,000 feet of an "adult use" business. On October 11, 2000, Executive Arts submitted an application for a variance from that portion of the City's Zoning Ordinance which regulates adult businesses.¹ Based upon the application, Executive Arts apparently believed that it was a regulated use under the Zoning Ordinance. Executive Arts sought the variance in order to operate an adult-oriented gift and bookstore having approximately 3% of its floor space devoted to sexually-explicit magazines. After reviewing Executive Arts' variance application and obtaining an opinion from its legal department, the City's Planning Department determined that a business having only 3% of its stock in trade devoted to adult magazines, such as that proposed by Executive Arts, would not be a regulated use under the Zoning Ordinance. Following that determination, Michael Vredevoogd ("Vredevoogd"), a resident of the neighborhood located immediately north of Executive Arts' premises, and others appealed the decision to the Grand Rapids Zoning Board of Appeals ("ZBA"), seeking reversal of the Planning Department's decision that Executive Arts' proposed business would not be a regulated use. By a 5-3 vote, the ZBA upheld the determination that Executive Arts' proposed business, having only 3% of its floor space devoted to the sale/display of sexually-explicit magazines, was not an adult book store under the Zoning Ordinance. Based upon that determination, Executive Arts closed on the purchase of the building now housing its business, remodeled it, and opened for business.

On January 3, 2001, Vredevoogd filed an action in the Kent County Circuit Court seeking review of the ZBA decision. The case was assigned to Judge Dennis C. Kolenda. On February 22, 2001, Judge Kolenda issued an opinion in which he determined that a store with 3% of its floor space consisting of sexually explicit magazines would be an "adult bookstore" under the Zoning Ordinance. Judge Kolenda issued an order reversing the ZBA decision and remanding the matter to the ZBA for consideration of the original variance request, but retaining jurisdiction over the matter. Executive Arts filed an application for leave to appeal, which was denied by the Michigan Court of Appeals on June 8, 2001.

Executive Arts filed this case on March 29, 2001, pursuant to 42 U.S.C. § 1983 alleging that the Zoning Ordinance is unconstitutional and, specifically, that § 5.284 of the Zoning Ordinance is void and unenforceable because it violates the First and Fourteenth Amendments to the United States Constitution.

On May 3, 2001, the ZBA, on remand from the circuit court, denied Executive Arts' variance request. Executive Arts appealed that determination to Kent County Circuit Court. That appeal apparently remains pending at this time. Pursuant to England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), Executive Arts also filed a notice reserving its right to litigate any federal claims in federal court. (Amended Notice of Reservation of Federal Claims/Defenses, Pl.'s Resp. Br. Ex. H.) On June 7, 2001, the City filed the instant motion requesting that the Court abstain from hearing Executive Arts' claims pursuant to the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

On July 25, 2001, the Court heard oral argument on the City's motion. During the hearing, the City's counsel requested an opportunity to file a supplemental brief raising the issue of abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Court indicated that it would hold the instant motion in abeyance pending receipt of additional briefs from the parties on Pullman abstention and rule on both abstention arguments in a single opinion. Following oral argument, the Court permitted Executive Arts to file an amended complaint which addressed some of the concerns raised by the Court during oral argument by eliminating its request that the Court declare that Executive Arts' business is not an adult book store under the City's Zoning Ordinance. In spite of its request, the City has not filed an additional brief raising Pullman abstention. Therefore, the Court now issues its ruling on Younger abstention.

Discussion

Although the Supreme Court has recognized that under certain circumstances federal courts should abstain from exercising jurisdiction in deference to state proceedings, it has recognized "the heavy obligation [federal courts have] to exercise jurisdiction." Col. River Water Conservation Dist. v. United States, 424 U.S. 800, 820, 96 S.Ct. 1236, 1248, 47 L.Ed.2d 483 (1976). Thus, "[a]bstention from the exercise of jurisdiction is the exception, not the rule." Id. at 813, 96 S.Ct. at 1244.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the

State of California indicted Harris under a California law known as the California Criminal Syndicalism Act. Harris responded by filing a complaint in federal district court asking the court to enjoin the district attorney from prosecuting him on the basis that the California law inhibited Harris' exercise of his free speech and free press rights in violation of the First Amendment. The Supreme Court held that the district court should have declined to exercise its jurisdiction based upon the longstanding principle that state courts should be permitted to try state cases free from interference by federal courts. Id. at 43, 91 S.Ct. at 750. One reason for this rule was "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. at 43-44, 91 S.Ct. at 750. The Court observed that a more "vital" consideration supporting the rule is "the notion of `comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Id. at 44, 91 S.Ct. at 750. The Court noted that because there was already a state proceeding which afforded Harris an opportunity to raise his constitutional claims and there was no suggestion that the prosecution was brought in bad faith or that Harris faced some injury other than that incidental to every criminal proceeding, injunctive relief should be denied. Id. at 49, 91 S.Ct. at 753. The principles embodied in Younger abstention "are designed to allow the State an opportunity to `set its own house in order' when the federal issue is already before a state tribunal." Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 479-80, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 513 (1977).

Although Younger involved a state criminal proceeding, the Supreme Court has extended Younger to state civil enforcement proceedings and state administrative proceedings which are judicial in nature. See, e.g., Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977)(state civil enforcement action); Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986)(state administrative proceeding). The Supreme Court has articulated the following three-pronged test for determining when Younger abstention is appropriate in noncriminal proceedings: (1) Are there ongoing state judicial proceedings?; (2) Do the proceedings implicate important state interests?; and (3) Is there an adequate opportunity in the state proceedings to raise constitutional challenges? Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982).

The Court concludes that Younger abstention is not appropriate in this case, regardless of whether the three criteria have been met, because the pending state court case does not implicate the concerns underlying Younger abstention. As mentioned above, the state court case in Younger was a criminal prosecution which the federal plaintiff sought to enjoin through federal proceedings. Although Younger has been extended beyond criminal cases to civil cases, the principal consistently applied is that "federal courts should not interfere with a state's effort to enforce its own laws in an ongoing state proceeding in which the defendant can fully and fairly litigate the issue it would instead attempt to raise in federal court." Cooper v. Bombela, 34 F.Supp.2d 693, 696 (N.D.Ill.1999). The critical requirement for Younger abstention, then, is that the state must be attempting...