People Tags, Inc. v. Jackson County Legislature
| Decision Date | 03 June 1986 |
| Docket Number | No. 85-0028-CV-W-9.,85-0028-CV-W-9. |
| Parties | PEOPLE TAGS, INC., et al., Plaintiffs, v. JACKSON COUNTY LEGISLATURE, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
COPYRIGHT MATERIAL OMITTED
Errol Copilevitz, John P. Jennings, Jr., Harding & Copilevitz, Kansas City, Mo., for plaintiffs.
Russell D. Jacobson, Gary Owens, John B. Williams Office of the County Counselor, Kansas City, Mo., for defendants.
ORDER DECLARING CERTAIN JACKSON COUNTY ORDINANCES UNCONSTITUTIONAL AS APPLIED TO PLAINTIFFS AND ENJOINING THEIR ENFORCEMENT
Plaintiffs People Tags, Inc., Donald W. DeLap and Dale F. Studdard claim that Jackson County, Missouri, Ordinances No. 1243 and No. 1251 violate various federal and state constitutional provisions. Plaintiffs seek an injunction against defendants William F. Waris, County Executive of Jackson County, Missouri, the Jackson County Legislature, the members of the Jackson County Legislature in their official capacities and Robert J. Rennau, Sheriff of Jackson County, prohibiting them from enforcing Ordinances No. 1243 and No. 1251.
The parties have filed cross motions for summary judgment based on a stipulated factual record.1 A hearing was held on December 18, 1985, at which the parties were given an opportunity to present their legal arguments on the issues.
People Tags, Inc. (People Tags) is a Missouri corporation that leases property at 8801 Truman Road in the Blue Summit area of unincorporated Jackson County, Missouri. On August 30, 1984, People Tags applied for and received a Jackson County Amusement License. On September 5, 1984, People Tags opened an adult bookstore, adult motion picture theater and adult mini motion picture theater called Truman Road News at 8801 Truman Road. Truman Road News is located within 1,500 feet of a church. Plaintiff Donald W. DeLap is the manager of Truman Road News. Plaintiff Dale F. Studdard, a resident of Jackson County, wants to purchase adult oriented materials from Truman Road News.
Jackson County, Missouri, is a first class charter county operating pursuant to the Missouri Constitution, art. VI, § 18, and pursuant to its Constitutional Home Rule Charter that was approved by the voters on November 3, 1970. Defendant Jackson County Legislature is empowered by law to enact the ordinances at issue in this case. Defendants David L. Young, J.W. Patterson, Archie McGee, Fred Arbanas, Henry Rizzo, Fred J. Sanchez, Ed Growney, James D. Tindall, Harold L. Holliday, Jr., John E. Redmond, Robert E. Watson, Robert Beaird, Richard F. Schmidt, Dr. Robert E. Hertzog and Bill Randall Williams were authorized by law, as members of the Jackson County Legislature at the time that Ordinances No. 1243 and No. 1251 were enacted, to vote for or against these ordinances.
Defendant Robert J. Renneau, the Sheriff of Jackson County, was empowered to issue citations for violations of county ordinances, including the ordinances at issue.
On September 10, 1984, the Jackson County Legislature passed Ordinance No. 1243, consisting of definitions and the following substantive provisions in Section 24090.32:
On the same day that Ordinance No. 1243 was passed by the County Legislature, the Land Use Committee of the Jackson County Legislature held a public hearing on the proposed ordinance. On the next day, September 11, 1984, Jackson County Executive Bill Waris signed Ordinance No. 1243 into law. Ordinance No. 1243 became enforceable against People Tags on January 11, 1985, after the expiration of the 120 day period for "amortization of nonconforming uses."
On October 1, 1984, the Jackson County Legislature passed Ordinance No. 1251, consisting of several "whereas" clauses, definitions and the following substantive provisions in Section 2:
Prior to the adoption of Ordinance No. 1251, public hearings were held by the Land Use Committee of the Jackson County Legislature (October 1, 1984) and the Jackson County Plan Commission (September 27, 1984). Jackson County Executive Bill Waris signed Ordinance No. 1251 into law on October 3, 1984. Ordinance No. 1251 became enforceable against People Tags on February 3, 1985, after the expiration of the 120 day period.
By letter dated October 10, 1984, to the county counselor of Jackson County, counsel for plaintiffs inquired whether the county intended to enforce Ordinances No. 1243 and No. 1251 against plaintiff People Tags. By letter dated October 25, 1984, the county counselor replied that the county could "legally force the 8801 Truman Road business to comply with the `1500 feet' regulation within 120 days of the passage of either ordinance."
Defendants argue that People Tags lacks standing to bring this suit because its corporate charter was forfeited on November 1, 1983, for failure to pay its state franchise tax. Defendants attached the affidavit of Gary Owens and a certificate from Missouri Secretary of State stating that People Tags' corporate charter was forfeited on November 1, 1983, and that the forfeiture had not been rescinded as of April 9, 1985.
In response, People Tags filed a Certificate of Rescission of Forfeiture issued by the Missouri Secretary of State stating that People Tags was restored to good standing on April 26, 1985.
Because plaintiff People Tags is now a corporation in good standing, defendants' motion for summary judgment based on People Tags' lack of standing will be denied.
Also, defendants argue that plaintiff Dale F. Studdard lacks standing to challenge the validity of Ordinances No. 1243 and No. 1251. Plaintiffs People Tags, DeLap and Studdard seek the same relief, i.e., declaratory and injunctive relief. Defendants do not dispute that plaintiffs People Tags, Inc. and Donald W. DeLap have standing to challenge the validity of Ordinances No. 1243 and No. 1251. Because plaintiff Studdard requests the same relief requested by People Tags and DeLap, it is unnecessary to determine whether plaintiff Studdard has standing to challenge the validity of the ordinances.
Defendants argue that under Railroad Com'n. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), this Court should abstain from deciding this case.
This Court should abstain from deciding cases within its jurisdiction only if exceptional circumstances exist.
The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). The district court should not abstain merely because a state court could entertain the issues. Colorado River Water Conservation District v. United States, 424 U.S. 800, 813-14, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Abstention from the exercise of federal jurisdiction should be limited to cases where there is an overriding state interest. Id.
In Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 563 (6th Cir.1982), the Court described Pullman abstention as follows:
Under the Pullman doctrine, where a state law is being challenged in federal court as contrary to the federal Constitution and there are questions of state law which may be dispositive of the case, a federal court should abstain from deciding the case and allow the state courts to decide the state issues. Pullman abstention is appropriate in a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching the federal constitutional question. Babbitt v. United Farm Workers, 442 U.S. 289, 306, 99 S.Ct. 2301, 2312, 60 L.Ed.2d 895 (1979), citing Kusper v. Pontikes, 414 U.S. 51, 54, 94 S.Ct. 303, 306, 38 L.Ed.2d 260 (1973). Pullman abstention is not appropriate, however, where it is clear that the statute is unconstitutional no matter how it may be construed by the state courts. See Kusper, supra; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).
Here, the ordinances are not susceptible to a construction by Missouri courts that would alter the conclusion that they are unconstitutional as applied to Truman Road News. Furthermore, Pullman abstention is inappropriate in cases challenging the validity of statutes for allegedly...
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