Grandco Corp. v. Rochford

• Decision Date: 08 June 1976
• Docket Number: No. 75-1535,75-1535
• Citation: 536 F.2d 197
• Parties: GRANDCO CORPORATION, an Illinois Corporation, et al., Plaintiffs-Appellees, v. James M. ROCHFORD, Individually and as Acting Superintendent of Police of the City of Chicago, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 197

536 F.2d 197

GRANDCO CORPORATION, an Illinois Corporation, et al Plaintiffs-Appellees, v. James M. ROCHFORD, Individually and as Acting Superintendent of Police of the City of Chicago, et al Defendants-Appellants.

No. 75-1535.

United States Court of Appeals Seventh Circuit.

Argued Jan. 15, 1976.

Decided June 8, 1976.

William R. Quinlan, Corp. Counsel, Richard F. Friedman, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellants.

Patrick A. Tuite, Chicago, Ill., for plaintiffs-appellees.

Before HASTINGS, Senior Circuit Judge, SWYGERT, Circuit Judge, and EAST, Senior District Judge. ^*

HASTINGS, Senior Circuit Judge.

On this appeal we consider whether the district court properly entered a declaratory judgment that a Chicago municipal ordinance governing the licensing of motion picture theaters is unconstitutional on its face and enjoined its enforcement. The defendant city officials challenge the district court's action on three grounds: (1) that federal relief is barred by the existence of pending state proceedings against the plaintiffs, (2) that plaintiffs lack standing to challenge the ordinance, and (3) that the ordinance is, in any event, constitutional on its face.

I.

Plaintiffs are three corporations which operate motion picture theaters in Chicago. ¹ Chicago ordinances make it unlawful for plaintiffs to operate their theaters without first obtaining a public place of amusement license from the City. ² An applicant for this license must receive the approval of several city departments. The Department of Revenue obtains an applicant's personal guarantee that all amusement taxes will be paid. The Zoning Department certifies that the applicant's place of business conforms with city zoning regulations. The Building and Fire Departments inspect the premises to determine compliance with municipal building and fire codes. In addition, the applicant is investigated by the Chicago Police Department, which, based on guidelines established by the Department, recommends approval or disapproval of the application.

Following investigation by these various city departments, the application is forwarded to the office of the mayor who determines whether to issue the public place of amusement license. The mayor's determination is governed by Section 101-5 of the Chicago Municipal Code, which provides in part:

Upon receiving satisfactory proof from the Director of Revenue that the applicant or each of the principal officers, if the applicant is a corporation, is a fit and proper person to be granted such license, and that all laws and provisions of this Code regulating the business or occupation for which such license is applied for, have been complied with, the Mayor may authorize the issuance of said license by the City Clerk.

Municipal Code of Chicago ch. 101, § 101-5 (1975). If the mayor rejects an application, the applicant is entitled to a public hearing before a hearing examiner appointed by the mayor. If the mayor, after consideration of the hearing examiner's report, again rejects the application, he must notify the applicant in writing of his decision and the reasons for it. Id.

The three plaintiff corporations are unsuccessful applicants for municipal public place of amusement licenses. The particular facts relating to each plaintiff's unsuccessful application appear in the pleadings and exhibits of record. Plaintiff Grandco Corporation applied for a license, but the City has not issued it a license, and its manager has received citations for operating without one. ³ Plaintiff Festival Theatre Corporation operated several theaters apparently under a license issued to a third party. The City has begun proceedings to revoke the license under which it has been operating, and its application for a new license has been denied. ⁴ Plaintiff Wabash Books, Inc., applied for a public place of amusement license but its application was denied. The City has brought some 100 cases against its manager for operating without a license, and Chicago police officers have on several occasions arrested its manager and seized its films and projection equipment. According to a stipulation by the parties, no evidence indicates that any of plaintiffs' premises violate municipal zoning, building or fire regulations.

Plaintiffs brought this action under the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985 against the Chicago Chief of Police, the mayor, and two Chicago police officers, challenging on First Amendment grounds the language in Section 101-5 of the Municipal Code which provides that the mayor may grant a public place of amusement license to persons operating a motion picture theater upon a satisfactory showing that they are fit and proper persons. Defendants' initial motion to dismiss the complaint on the grounds that plaintiffs lacked standing and that federal relief was barred because of pending state proceedings against the plaintiffs was denied. The plaintiffs thereafter filed a motion for summary judgment. On April 7, 1975, the district court granted plaintiffs' motion and entered a declaratory judgment that the municipal ordinance is unconstitutional on its face and a permanent injunction against its continued enforcement.

II.

We first consider whether federal declaratory and injunctive relief was improper in this case under the doctrine of federal equitable restraint articulated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The Court held in Younger that when state criminal proceedings under a challenged criminal statute are pending against a federal plaintiff at the time his complaint is filed, principles of equity, comity and federalism generally preclude issuance of a federal injunction restraining enforcement of the challenged statute. Federal declaratory relief is similarly barred. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). An exception to this rule is recognized only where the federal plaintiff demonstrates official bad faith or harassment in enforcement of the statute or where other extraordinary circumstances justify federal relief. Younger, 401 U.S. at 56, 91 S.Ct. 746; see Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The fact that a state statute is unconstitutional on its face and impermissibly "chills" a federal plaintiff's exercise of First Amendment rights does not justify federal relief against good faith efforts by state officials to enforce it. 401 U.S. at 54, 91 S.Ct. 746. Federal courts will assume in these circumstances that the federal plaintiff's constitutional rights can be adequately vindicated in state court proceedings without any federal intrusion.

The district court in this case found sufficient evidence of official harassment in the City's enforcement of the challenged municipal licensing ordinance against plaintiff Wabash Books, Inc., to warrant injunctive and declaratory relief in spite of general principles of federal equitable restraint. The court's conclusion was supported by the following findings:

From the present record, it appears that well over 100 different cases have been filed against (the manager of Wabash Books) within the last year. On January 31, 1974, he filed a notice of appeal covering 44 separate cases in which he was convicted for operating a theater without a license. * * * At the present time, approximately 80 other cases in which he is charged with the same offense are pending in the Circuit Court of Cook County. Additionally, (he) has been charged at least four times with obscenity violations, but it appears these charges were all dismissed prior to trial. As with the other acts of the defendants charged in the complaint, plaintiffs allege that these prosecutions are being carried on with the basic unlawful purpose and effect of intimidating, harassing and punishing them for the exercise of their constitutionally protected rights.

Memorandum of Decision, April 11, 1974 (Unreported). The evidence of multiple prosecutions coupled with allegations of official bad faith and harassment were sufficient, in the district court's opinion, to bring this case within the recognized exception to the general rule against federal equitable intervention. ⁵ The district court also relied on evidence that the federal plaintiffs' constitutional claim had been repeatedly rejected in the state prosecutions and that the Illinois Appellate Court in the Chicago district had only recently upheld the constitutionality of the ordinance which plaintiffs challenge. ⁶ In view of these consistently adverse state court decisions, the court concluded that the key assumption in the Younger decision that a federal plaintiff's constitutional claim can and will be vindicated in state court proceedings is simply not valid in this case.

The district court concluded that, because of evidence of official harassment in enforcement of the licensing ordinance against Wabash Books, the federal relief requested by that plaintiff was not barred under Younger v. Harris. The court did not expressly consider a possible contrary result in the application of Younger principles to the somewhat different factual situations presented by the other two plaintiffs. The Supreme Court, however, has recently held that the effect of the Younger doctrine must be determined as to each federal plaintiff in multi-plaintiff litigation. Doran v. Salem Inn, Inc., 422 U.S. 922, 928-9, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). We therefore consider on appeal not only the correctness of the district court's conclusion with respect to Wabash Books, but also the application of Younger principles to plaintiffs Grandco Corporation and Festival Theatre Corporation.

A.

Based on our independent consideration of the record and of applicable Supreme Court authority, we conclude that the district court erred in finding that plaintiff Wabash Books made a sufficient showing of harassment to take this case out of...