Womens Services, P. C. v. Douglas

• Decision Date: 25 August 1981
• Docket Number: No. 81-1409,81-1409
• Citation: 653 F.2d 355
• Parties: WOMENS SERVICES, P. C., a Nebraska professional corporation, and William G. Orr, M.D., Appellants, Raymond L. Schulte, M.D., v. Paul L. DOUGLAS, Attorney General for the State of Nebraska, and Donald L. Knowles, County Attorney for the County of Douglas, State of Nebraska, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 355

653 F.2d 355

WOMENS SERVICES, P. C., a Nebraska professional corporation, and William G. Orr, M.D., Appellants, Raymond L. Schulte, M.D., v. Paul L. DOUGLAS, Attorney General for the State of Nebraska, and Donald L. Knowles, County Attorney for the

County of Douglas, State of Nebraska, Appellees.

No. 81-1409.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1981.

Decided July 15, 1981.

Rehearing Granted Aug. 25, 1981.

Robert Sigler, Douglas County Deputy Atty., Omaha, Neb., for appellants.

Jerold V. Fennell, Sp. Asst. Atty. Gen., Omaha, Neb., for appellees.

Before HEANEY, BRIGHT and McMILLIAN, Circuit Judges.

HEANEY, Circuit Judge.

Women Services, P.C., and Dr. William G. Orr appeal an order of the district court dismissing their complaint without prejudice. The district court abstained from ruling on the merits of plaintiffs' claims because of the pendency of a criminal prosecution in state court. We hold that abstention was not proper, and remand to the district court for further proceedings.

The plaintiffs filed suit in federal district court challenging the constitutionality of three sections of the Nebraska Criminal Code relating to abortion. The sections at issue, Neb.Rev.Stat. §§ 28-329, 28-330 and 28-331, regulate abortions performed after fetal "viability" has been reached. ¹ The plaintiffs moved to enjoin enforcement of the statutes pending resolution of their constitutional claims by the district court. A hearing was held on December 12, 1980, to consider plaintiffs' motion for preliminary injunctive relief and defendant's motion to dismiss. On March 26, 1981, the court dismissed the action on the ground that abstention was proper.

The district court's abstention ruling was based on its view that a decision on plaintiffs' constitutional claims would "tend to interfere" with criminal proceedings then pending against Dr. C. J. LaBenz for alleged violations of sections 28-329 and 28-331. Dr. LaBenz is a salaried employee of Womens Services.

The plaintiffs moved for an expedited appeal to this Court and for an injunction prohibiting enforcement of the challenged statutes during the duration of the appeal. The case was argued shortly thereafter. ²

For the reasons which follow, we conclude that the district court erred in applying the Younger abstention doctrine. The district court explained its decision to abstain thus:

My decision to abstain was based primarily upon the pendency of the criminal prosecution against Dr. LaBenz. The intertwining of the interests of the plaintiffs Orr and Womens Services, P.C. with those of Dr. LaBenz brings into operation the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Hicks v. Miranda, 422 U.S.C. (U.S.) 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Any decision that I would make as to any of the three statutory sections being challenged here would tend to interfere with the state criminal proceedings. This is true as to § 28-330, as well as the others, because of the similarity of issues involved in the three sections. (Emphasis added.)

Younger proscribes a federal court from enjoining pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable loss is both great and immediate, such as where a threat to the plaintiff's federally protected rights cannot be eliminated by his defense against a single state criminal prosecution. Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Moreover, the possible unconstitutionality of a statute on its face does not in itself justify an injunction against good faith attempts to enforce it absent a showing of bad faith, harassment or unusual circumstances. Id. at 54, 91 S.Ct. at 755.

Younger abstention analysis is complicated here because the federal plaintiffs (Womens Services, P.C. and G. William Orr, M.D.) are not parties in the state criminal proceeding against Dr. C. J. LaBenz. Since there is inexact identity of parties in the separate federal and state proceedings, the question is whether the interests of the federal plaintiffs and the state criminal defendant Dr. LaBenz, who is not a party to the federal action, are so intertwined that the Younger abstention is warranted. A crucial aspect of this case is that the federal plaintiffs did not seek to enjoin the Nebraska criminal proceeding against Dr. LaBenz. Instead, the federal plaintiffs sought preliminary injunctive relief on their own behalf.

The "intertwined" interests concept originated in Hicks v. Miranda, 422 U.S. 332, 348-352, 95 S.Ct. 2281, 2291, 45 L.Ed.2d 223 (1975). There, the Supreme Court held that a federal district court should have abstained from considering a theater owner's (the appellees) ³ federal suit where state criminal proceedings were pending against two of the theater's employees. Id. at 348, 95 S.Ct. at 2291. As part of the state criminal prosecution against the two theater employees, four copies of a film owned by the theater owner-appellees were seized and held by state authorities. Id. The Court explained:

Appellees had a substantial stake in the state proceedings, so much so that they sought federal relief, demanding that the state statute be declared void and their films be returned to them. Obviously, their interests and those of their employees were intertwined ; and, as we have pointed out, the federal action sought to interfere with the pending state prosecution. Absent a clear showing that appellees, whose lawyers also represented their employees, could not seek the return of their property in the state proceedings and see to it that their federal claims were presented there, the requirements of Younger v. Harris could not be avoided on the ground that no criminal prosecution was pending against appellees on the date the federal complaint was filed. The rule in Younger v. Harris is designed to "permit state courts to try state cases free from interference by federal courts," 401 U.S., at 43 (91 S.Ct., at 750), particularly where the party to the federal case may fully litigate his claim before the state court. Plainly, "(t)he same comity considerations apply," Allee v. Medrano, 416 U.S. 802, 831 (94 S.Ct. 2191, 2208, 40 L.Ed.2d 566) (1974) (Burger, C. J., concurring), where the interference is sought by some, such as appellees, not parties to the state case.

Id. at 348-349, 95 S.Ct. at 2291 (emphasis added).

Two factors are emphasized in this quotation: (1) the federal plaintiffs (theater owner-appellees) sought to interfere with the pending state criminal prosecution against the theater employees; and (2) the federal plaintiffs failed to show that they could not seek return of their property in the state proceedings and see to it that their federal claims were presented there. ⁴ Here, the federal plaintiffs did not seek to enjoin the state's criminal prosecution of Dr. LaBenz.

In another important abstention decision, the Supreme Court held that three corporations which operated taverns were not so clearly related that a pending state criminal prosecution against one (which was initiated one day after the federal complaint was filed) would warrant abstention as to the other two's federal claims. Doran v. Salem Inn, Inc., 422 U.S. 922, 928-934, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975). The Court explained:

We do not agree with the Court of Appeals, therefore, that all three plaintiffs should automatically be thrown into the same hopper for Younger purposes and should thereby each be entitled to injunctive relief. We cannot accept that view, any more than we can accept petitioner's equally Procrustean view that because M & L would have been barred from injunctive relief had it been the sole plaintiff, Salem and Tim-Rob should likewise be barred not only from injunctive relief but from declaratory relief as well. While there plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any one of them, this is not such a case while respondents are represented by common counsel, and have similar business activities and problems, they are apparently unrelated in terms of ownership, control, and management. We thus think that each of the respondents should be placed in the position required by our cases as if that respondent stood alone.

Id. at 928-929, 95 S.Ct. at 2566 (emphasis added).

The Court also concluded that the two corporations which were not state criminal defendants could have, under Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), obtained a declaratory judgment upon an ordinary showing of entitlement to that relief and that under the facts presented, the district court's issuance of a preliminary injunction prohibiting future state criminal prosecution against the two corporations which were not defendants in pending state criminal prosecutions was not an abuse of discretion. Supra, 422 U.S. at 930-934, 95 S.Ct. at 2567. Referring to the district court's issuance of a preliminary injunction, the Court stated that in the absence of an ongoing state criminal proceeding, a plaintiff may challenge the constitutionality of a state statute in federal court, assuming that the plaintiff can satisfy the requirements for federal jurisdiction. Id. at 930, 95 S.Ct. at 2567. After noting that although the practical effect of declaratory and injunctive relief will be virtually identical, the Court stated:

At the conclusion of a successful federal challenge to a state statute or local ordinance, a district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore, the stronger injunctive medicine will be unnecessary. But prior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs...