Sharkey's Inc. v. City of Waukesha

• Decision Date: 22 May 2003
• Docket Number: No. 02-C-618.,02-C-618.
• Citation: 265 F.Supp.2d 984
• Parties: SHARKEY'S, INC., Plaintiff, v. CITY OF WAUKESHA, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

265 F.Supp.2d 984

SHARKEY'S, INC., Plaintiff, v. CITY OF WAUKESHA, Defendant.

No. 02-C-618.

United States District Court, E.D. Wisconsin.

May 22, 2003.

COPYRIGHT MATERIAL OMITTED

Joan P. Brady, for Plaintiff.

Raymond J. Pollen, Remzy D. Bitar, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff Sharkey's, Inc. brings this action against defendant City of Waukesha pursuant to 42 U.S.C. § 1983 seeking a declaratory judgment that the City's noise ordinances, sections 9:11(21) and 12:05(10) of its municipal code, are facially unconstitutional. Plaintiff argues that the ordinances violate due process because they are vague and violate the First Amendment because they are not narrowly tailored. Both parties now move for summary judgment.

The facts are undisputed. Plaintiff, licensed as a Class B intoxicating liquor and fermented malt beverage establishment, operates a bar and grill and features recorded music and other forms of entertainment. Section 9:11(21) provides that: "unreasonably loud noise or other conduct which tends to cause a disturbance or unreasonably interferes with the quiet enjoyment of the surrounding neighborhood is prohibited on or about the licensed premises," and section 12:05(1) prohibits "[n]oise of any kind tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof." (Am. Compl. at 2.) The City has issued citations to plaintiff and its licensed agent alleging violations of the above ordinances. These matters are pending in the City's municipal court, but the parties have agreed to adjourn them pending disposition of the present case.

II. DISCUSSION

A. Summary Judgment Standard and Burden of Proof

Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In the present case, there are no disputed issues of fact, and the parties agree that the only issue to be resolved is whether the ordinances are facially unconstitutional.¹

The ordinances implicate First Amendment rights because music is a form of expression and communication. Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Thus, the burden of establishing constitutionality is on the City. Wis. Action Coalition v. City of Kenosha, 767 F.2d 1248 1252 (7th Cir.1985) (stating that when exercise of First Amendment rights may be impaired, burden of establishing constitutionality of law is on its proponent).

B. Abstention

The City asks me to abstain from exercising jurisdiction over this dispute. A federal court has an obligation to adjudicate cases properly before it, and abstention from the exercise of such jurisdiction should be rare. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Abstention is justified only where directing the parties to settle the dispute in state court would advance an important countervailing interest. Id. However, various abstention doctrines have evolved from Supreme Court decisions, and the City relies on three of them.

1. Younger Abstention

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that absent extraordinary circumstances, federal courts must abstain from interfering with ongoing state criminal proceedings. Over time, a three-part test has emerged for determining whether abstention under Younger is appropriate: (1) the state judicial proceeding must be ongoing; (2) the proceeding must implicate important state interests; and (3) there must be an adequate opportunity in the state court proceeding to raise a constitutional challenge. Trust & Inv. Advisers, Inc. v. Hogsett, 43 F.3d 290, 294 (7th Cir.1994).

However, states may waive their right to Younger abstention. Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977) (holding that where a state "voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the state's own system"); see also Brown v. Hotel & Rest. Employees & Bartenders Int'l Union, Local 54, 468 U.S. 491, 500 n. 9, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984) ("Since the State's Attorney General has ... agreed to our adjudication of the controversy, considerations of comity are not implicated, and we need not address the merits of the Younger abstention claim."); Nelson v. Murphy, 44 F.3d 497, 501 (7th Cir.1995) ("The principal of Younger is that a party to a state proceeding affecting important governmental interests must resolve the dispute in the state's preferred tribunal.").

In the present case, plaintiffs counsel has filed an affidavit stating that there is "an informal agreement between counsel for the Plaintiff and for the City of Waukesha that the matters be adjourned pending the result of the facial challenge to the Waukesha noise ordinances pending before the United States District Court for the Eastern District of Wisconsin." (Brady Aff. ¶ 9.) Plaintiff reiterates this point in its brief, stating that "the parties have chosen to defer proceedings in municipal court pending this court's determination of the constitutionality of the ordinances." (Pl.'s Reply Br. at 2). In its reply brief, the City confirms the existence of "an informal agreement'' and does not dispute plaintiffs counsel's statement as to its content. (Def.'s Reply Br. at 3.) Further, both parties confirmed the existence of the agreement in a subsequent telephone conference with the court. Thus, I conclude that the City has agreed that this court should decide the issue of the facial constitutionality of the ordinances. Therefore, Younger abstention would be improper.²

2. Rooker-Feldman Abstention

The Rooker-Feldman doctrine bars review by lower federal courts of state court judgments. See Dist. of Columbia Ct.App. v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The doctrine comes into play when there is a prior state court judgment. When a defendant argues that a federal court should abstain from exercising jurisdiction based on Rooker-Feldman, the question is "whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment. If the injury alleged resulted from the state court judgment itself, Rooker-Feldman directs that the lower federal courts lack jurisdiction." Zurich Am. Ins. Co. v. Super. Ct, 326 F.3d 816, 822 (7th Cir.2003) (internal citation and quotation marks omitted). In the present case, plaintiff alleges that it is suffering ongoing harm resulting from the City's noise ordinances. Plaintiff does not complain of injury resulting from any state court judgment. Thus, Rooker-Feldman abstention would be improper.

3. Colorado River Abstention

Federal courts may also abstain from deciding cases based on the pendency of a concurrent state court proceeding for reasons of wise judicial administration. Colo. River Water Conservation Dist, 424 U.S. at 817-18, 96 S.Ct. 1236. As previously indicated, the parties in the present case have entered into an agreement to adjourn the proceedings in municipal court until this court has determined the facial constitutionality of the ordinances. Under these circumstances, the goal of wise judicial administration, which the Colorado River doctrine is designed to serve, would not be advanced by abstention. Thus, Colorado River abstention will be denied.

C. Facial Constitutionality of Ordinances

1. Due Process Claim

a. The Void for Vagueness Concept

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Groyned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The void for vagueness doctrine prohibits the enforcement of a law that contains words "`so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.'" Roberts v. U.S. Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (quoting Connolly v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). Legislation "must articulate terms with a reasonable degree of clarity' to reduce the risk of arbitrary enforcement and allow individuals to conform their behavior to the requirements of the law." Gresham v. Peterson, 225 F.3d 899, 907 (7th Cir.2000) (quoting Roberts, 468 U.S. at 629,104 S.Ct. 3244). "A statute that Vests virtually complete discretion in the hands of the police' fails to provide the minimal guidelines required for due process." Id. (quoting Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

In determining whether an ordinance is unconstitutionally vague, a court must examine the words of the ordinance and consider interpretations of comparable laws. A court must also keep in mind that, "[condemned to the use of words, we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110, 92 S.Ct. 2294. "[Flexibility and reasonable breadth" in the language chosen is constitutionally acceptable. Id.; see also City of Portland v. Aziz, 47 Or.App. 937, 615 P.2d 1109, 1114 (1980) (stating that flexibility is not equivalent to vagueness). Further, a federal court must `"consider any limiting construction that a state court or enforcement agency has proffered.'" Gresham, 225 F.3d at 908 (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). The Wisconsin Supreme Court has not construed the ordinances at issue in the...