Zalman v. Armstrong

• Citation: 802 F.2d 199
• Decision Date: 17 November 1986
• Docket Number: No. 85-5174,85-5174
• Parties: Bruce ZALMAN, Plaintiff-Appellee, v. David L. ARMSTRONG, individually and as Attorney General of the Commonwealth of Kentucky; Louis J. Hollenbach, III, individually and as Commonwealth Attorney for the 30th Judicial District of Kentucky; and Hon. Olga S. Peers, individually and as Judge, Jefferson Circuit Court, Eleventh Div., Defendants- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 199

802 F.2d 199

Bruce ZALMAN, Plaintiff-Appellee, v. David L. ARMSTRONG, individually and as Attorney General of

the Commonwealth of Kentucky; Louis J. Hollenbach, III,

individually and as Commonwealth Attorney for the 30th

Judicial District of Kentucky; and Hon. Olga S. Peers,

individually and as Judge, Jefferson Circuit Court, Eleventh

Div., Defendants- Appellants.

No. 85-5174.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 21, 1986.

Decided Sept. 29, 1986.

Rehearing and Rehearing En Banc Denied Nov. 17, 1986.

David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., Robert V. Bullock (argued), for defendants-appellants.

Scott T. Wendelsdorf, Louisville, Ky., John T. Ballantine (argued), Fred R. Radolovich, Louisville, Ky., for plaintiff-appellee.

Before ENGEL, KENNEDY and RYAN, Circuit Judges.

ENGEL, Circuit Judge.

Plaintiff Bruce Zalman filed this action in the United States District Court for the Western District of Kentucky seeking injunctive relief prohibiting his prosecution under Ky.Rev.Stat. Sec. 506.120(1)(d) ¹ and declaratory relief that this statute violated his constitutional rights under the First, Sixth and Fourteenth Amendments of the United States Constitution. At the time this action was commenced in federal court, criminal proceedings were pending against Zalman under this statute in Jefferson County Circuit Court, Kentucky. The district court concluded that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), did not require federal abstention because the Kentucky statute was "patently and flagrantly" unconstitutional. The court therefore granted the requested relief, permanently enjoining prosecution under the contested provision of the statute and further declaring that provision unconstitutional. We express no opinion on the constitutionality of this statute because we find that the district court should have abstained under the principles enunciated in Younger and its progeny. Accordingly, we vacate the district court's judgment on the merits of the case and remand the case to the district court with instructions to dismiss the complaint.

I.

On June 27, 1984, the grand jury of Jefferson County, Kentucky, returned an indictment against, among others who are not relevant to this action, Bruce Zalman, an attorney and citizen of Jefferson County. Count 18 of the indictment charged that Zalman "committed the offense of Criminal Syndicate when he organized or participated in organizing and provided legal services to a criminal syndicate when he facilitated the unlawful activities of the criminal syndicate by collaborating with others to promote prostitution in violation of KRS Chapter 529." The indictment returned against Zalman stemmed from Kentucky's allegations that Zalman furnished legal services and advice to the Truly Divine Massage Parlor, Joanie Darlin's Massage Parlor, and the escort services associated with those duly licensed and regulated massage parlors, knowing that prostitution occurred in the operation of each. The indictment was assigned for trial in Jefferson Circuit Court on January 29, 1985.

On December 20, 1984, Zalman brought this action in the United States District Court for the Western District of Kentucky seeking declaratory and injunctive relief on the grounds that Ky.Rev.Stat. Sec. 506.120(1)(d) was violative of the First, Sixth and Fourteenth Amendments to the United States Constitution. Following a hearing on January 24, 1985, the district court entered a temporary restraining order enjoining further state proceedings pending a hearing on Zalman's application for a preliminary injunction. By agreement, the district court advanced and consolidated the trial of the action on the merits with the hearing on Zalman's petition for preliminary injunction. On February 21, 1985, the district court entered a final judgment declaring section 506.120(1)(d) unconstitutional and permanently enjoining the state prosecution on count 18 of the indictment.

Although the district court recognized that Younger v. Harris and the Anti-Injunction Act, 28 U.S.C. Sec. 2283, would ordinarily preclude federal action on pending state criminal proceedings, the court nevertheless concluded that there were "extraordinary circumstances" warranting federal intervention. Specifically, the district court pointed to language in Younger v. Harris in which the Supreme Court had noted that, in addition to bad faith and harassment, "extraordinary circumstances" might exist in a situation where " 'a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.' " 401 U.S. at 53-54, 91 S.Ct. at 755 (quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941)). Relying heavily on Amusement Devices Ass'n v. Ohio, 443 F.Supp. 1040 (S.D.Ohio 1977), where a three-judge district court held a similar Ohio statute ² to be unconstitutionally vague under the Fourteenth Amendment and violative of First Amendment associational rights, the district court concluded that Ky.Rev.Stat. Sec. 506.120(1)(d) is "flagrantly and patently violative of express constitutional prohibitions." The court therefore refused to abstain under Younger v. Harris and entered judgment accordingly. The Commonwealth of Kentucky thereafter filed a timely notice of appeal to this court on February 27, 1985. ³

II.

Younger v. Harris counsels a federal court against interfering with currently pending state criminal proceedings absent a showing of extraordinary circumstances. Underlying this rule are considerations of equity, comity, and federalism. Younger, 401 U.S. at 43-45, 91 S.Ct. at 750-51. See Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., --- U.S. ----, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1986). The equity component reflects "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." Younger, 401 U.S. at 43-44, 91 S.Ct. at 750. The comity component reflects "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. Finally, the federalism component reflects a "sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id. Younger is thus designed to " 'permit state courts to try state cases free from interference by federal courts,' ... particularly where the party to the federal case may fully litigate his claim before the state court." Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975) (quoting Younger, 401 U.S. at 43, 91 S.Ct. at 750).

In Younger itself, the Supreme Court held that it was error for the district court to have enjoined Harris' prosecution in state court for an alleged violation of a state statute. The Court noted that "a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims." 401 U.S. at 49, 91 S.Ct. at 753. The Court further emphasized that "the possible unconstitutionality of a statute 'on its face' does not in itself justify an injunction against good-faith attempts to enforce it, and ... Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief." Id. at 54, 91 S.Ct. at 755. In the companion case of Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), the Supreme Court held that the rule announced in Younger with respect to injunctive relief applied with equal force to requests for declaratory relief in a federal court. Accordingly, "in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well." Id. at 73, 91 S.Ct. at 768.

Thus, in determining the applicability of the Younger abstention rule a federal court should consider at least three separate factors: (1) whether a state proceeding is pending at the time the federal action is initiated; (2) whether an adequate opportunity is provided to raise the constitutional claims in the state proceeding; and (3) whether there are extraordinary circumstances which nevertheless warrant federal intervention. ⁴ We emphasize that the application of the Younger rule is much more than a mechanical application of these considerations. Indeed, as with any "rule of law" it is incumbent upon a court to be sensitive to the concerns which animate that rule. Guided by these concerns, we now turn to an application of the Younger rule to the instant facts.

A. Pendency of the State Proceeding and Availability of a Forum.

Younger v. Harris and its companion cases made it quite clear that federal abstention is required only if there was a prosecution pending in state courts at the time the federal proceeding was begun. In Younger the Court emphasized, "We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at...