In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3461
SKS & A SSOCIATES, INC.,
Plaintiff-Appellant,
v.
T HOMAS J. D ART, S HERIFF OF
C OOK C OUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-CV-05424—Milton I. Shadur, Judge.
A RGUED F EBRUARY 11, 2010—D ECIDED A UGUST 27, 2010
Before K ANNE, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In Younger v. Harris, 401 U.S.
37 (1971), a federal court plaintiff sought a federal in-
junction to stop state court proceedings that he claimed
would violate his federal constitutional rights. The Su-
preme Court said no, the federal courts would abstain,
leaving the state courts to consider the federal constitu-
tional issues that would arise in their proceedings.
2 No. 09-3461
In this unusual case, by contrast, a federal court plain-
tiff seeks a federal injunction not to stop state court pro-
ceedings but to speed them up. The plaintiff alleges
that delays in the state courts are violating its federal
constitutional rights. Although the posture is reversed,
we conclude, based on the same principles of equity,
comity, and federalism that are the foundation of Younger
abstention, that abstention is required in this case as
well. We affirm the district court’s dismissal of the case.
To the extent that delays in state court processes ad-
versely affect the plaintiff, it can and must seek remedies
through the state courts themselves.
I. Factual and Procedural Background
On November 24, 2008, Chief Judge Kenneth Wright
of the Cook County Circuit Court entered General Order
2008-04. He ordered Cook County Sheriff Thomas Dart
not to carry out residential evictions: (a) during two and
a half weeks in the winter holiday season, (b) when-
ever the outside temperature dropped below 15 degrees
Fahrenheit, or (c) whenever the sheriff determined that
“extreme weather conditions endanger[ed] the health
and welfare of those to be evicted.” The Circuit Court
has issued similar orders in previous years.
Appellant SKS & Associates, Inc. owns and manages
residential rental properties in Cook County. SKS has
had to use the process of eviction from time to time to
deal with tenants who fail to pay rent. SKS alleges that
the general order has cost it money by delaying its
ability to evict those tenants. In this action under 42 U.S.C.
No. 09-3461 3
§ 1983 against the chief judge and the sheriff, SKS alleges
that the chief judge’s general order violated its federal
constitutional rights. SKS claims the order denied it equal
protection of the laws, deprived it of property without
due process of law, and amounted to an establishment
of religion.
The district court dismissed the action on its own
initiative, before the defendants had appeared. In a
thoughtful opinion, the district court rejected the conten-
tion that the action’s dismissal deprived SKS of any
remedy and determined that SKS could instead pursue
state court relief by seeking a writ of mandamus. SKS
filed a motion for reconsideration; after conducting a
hearing, the district court denied the motion. This
appeal followed.1
II. Analysis
SKS has asked the federal courts to issue an order
to compel the circuit court to process evictions more
quickly. At a superficial level, this action appears to be
within the scope of 42 U.S.C. § 1983: plaintiff claims that
its federal constitutional rights are being violated by
persons acting under color of state law, and it seeks
1
The chief judge and sheriff never filed appearances or
briefs in the district court and have not participated in this
appeal.
4 No. 09-3461
declaratory relief.2 Yet the relief plaintiff seeks here
would run contrary to the basic principles of equity,
comity, and federalism. We find it necessary for the federal
courts to abstain from resolving this case and to
leave the matter to the courts of Illinois. See Waldron v.
McAtee, 723 F.2d 1348, 1351 (7th Cir. 1983) (“[T]he [federal
appellate] court has the power and in an appropriate
case the duty to order abstention, if necessary for the
first time at the appellate level, even though no party is
asking for it.”).
Abstention from the exercise of federal jurisdiction is
the exception, not the rule. Colorado River Water Conserva-
tion District v. United States, 424 U.S. 800, 813 (1976).
“When a Federal court is properly appealed to in a case
over which it has by law jurisdiction, it is its duty to
take such jurisdiction . . . . The right of a party plaintiff
to choose a Federal court where there is a choice cannot
be properly denied.” New Orleans Public Service, Inc. v.
Council of City of New Orleans, 491 U.S. 350, 358-59 (1989),
2
Judge Shadur pointed out that plaintiff’s original complaint
did not ask for injunctive relief and that plaintiff could not
obtain injunctive relief against Judge Wright without showing
that he had violated an earlier declaratory decree. See
42 U.S.C. § 1983, as amended by Pub. L. 104-317, § 309(c), 110
Stat. 3847, 3853 (amended to bar injunctions against judicial
officers for judicial actions or omissions “unless a declaratory
decree was violated or declaratory relief was unavailable”).
Although SKS later told Judge Shadur that it wanted injunc-
tive relief, it cannot get around the terms of section 1983
prohibiting such relief against the state court judge.
No. 09-3461 5
quoting Wilcox v. Consolidated Gas Co., 212 U.S. 19, 40
(1909) (omission in original).
Under established abstention doctrines, however, a
federal court may, and often must, decline to exercise
its jurisdiction where doing so would intrude upon the
independence of the state courts and their ability to
resolve the cases before them. The Supreme Court has
recognized four main categories of abstention named
after the cases that gave rise to them: Pullman, Burford,
Younger, and Colorado River. See Railroad Commission of
Texas v. Pullman Co., 312 U.S. 496 (1941); Burford v. Sun Oil
Co., 319 U.S. 315 (1943); Younger v. Harris, 401 U.S. 37
(1971); Colorado River Water Conservation District v. United
States, 424 U.S. 800 (1976); see also Grode v. Mutual Fire,
Marine and Inland Ins. Co., 8 F.3d 953, 955-57 (3d Cir.
1993) (summarizing each). While this case falls outside
the scope of Pullman, Burford, and Colorado River, it im-
plicates the principles of equity, comity, and federalism
that are the foundation for Younger abstention.
The Younger doctrine requires federal courts to abstain
from taking jurisdiction over federal constitutional claims
that seek to interfere with or interrupt ongoing state
proceedings. FreeEats.com, Inc. v. Indiana, 502 F.3d 590,
595 (7th Cir. 2007) (reversing denial of Younger absten-
tion and ordering dismissal of federal case). This case
resembles the typical Younger abstention scenario in that
it involves a claim that seeks equitable relief against
state proceedings on federal constitutional grounds. SKS
has come to federal court with a constitutional claim
for equitable relief that seeks to compel the state court
6 No. 09-3461
to manage pending state cases—petitions for residential
eviction orders—in a particular way. While this case
fits Younger to that extent, the established doctrine
does not fit neatly here because SKS is a plaintiff in
state court, not a defendant, and it seeks to protect its
federal constitutional rights by having the federal courts
speed up the state court proceedings, not stop them.3
The original core of Younger abstention—from Younger
itself—requires federal courts to abstain when a crim-
inal defendant seeks a federal injunction to block
his state court prosecution on federal constitutional
grounds. See 401 U.S. at 53-54. While the Supreme Court
3
The First and Ninth Circuits have both rejected claims
seeking a federal court order compelling state court systems to
speed up their case adjudication. In Los Angeles County Bar Ass’n
v. Eu, 979 F.2d 697, 706-07 (9th Cir. 1992), the Ninth Circuit
rejected a federal claim seeking to compel the California
court system to add judgeships in order to decide cases more
quickly. The Ninth Circuit found that no court has recognized
“a right to judicial determination of a civil claim within a
prescribed period of time” and noted that it is “very difficult
for courts to determine how much delay [is] constitutionally
acceptable in any given case.” 979 F.2d at 706, 703. In Ad
Hoc Committee on Judicial Administration v. Commonwealth of
Massachusetts, 488 F.2d 1241 (1st Cir. 1973), the First Circuit
rejected a similar claim as presenting a non-justiciable
political question. The First Circuit noted: “Delay per se is not
unconstitutional; it may become such only when an injured
plaintiff, ready and eager for trial . . . [is] denied for too long
his day in court.” 488 F.2d at 1244.
No. 09-3461 7
has extended Younger to civil proceedings, beginning
with Huffman v. Pursue, Ltd., 420 U.S. 592, 603-604 (1975),
it has done so only in limited circumstances. The civil
brand of Younger extends only to a federal suit filed by
a party that is the target of state court or administra-
tive proceedings in which the state’s interests are so
important that exercise of federal judicial power over
those proceedings would disregard the comity between
the states and federal government. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 13 (1987) (requirement for the
posting of bond pending appeal); Middlesex County
Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432-
34 (1982) (attorney disciplinary proceedings); Trainor
v. Hernandez, 431 U.S. 434, 444 (1977) (civil proceedings
seeking return of welfare payments wrongfully re-
ceived); Juidice v. Vail, 430 U.S. 327, 335-36 & n.12 (1977)
(civil contempt proceedings); Huffman, 420 U.S. at 604
(state court action to close adult theater); Majors v.
Engelbrecht, 149 F.3d 709, 712-13 (7th Cir. 1998) (nursing
license suspension proceedings before state admin-
istrative board). Younger is still “appropriate only when
there is [a state judicial or administrative] action
against the federal plaintiff and the state is seeking to
enforce the contested law in that proceeding.” Forty
One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th
Cir. 2007).
In the pending state eviction actions, SKS is not a target
of any effort to enforce state law. It is not even a defen-
dant. Therefore, Younger abstention as we currently
understand it does not completely fit here. Yet the Younger
8 No. 09-3461
doctrine is instructive here because this case implicates
the same principles of equity, comity, and federalism
that provide the foundation for Younger to such an
extent that the federal courts must abstain here.
The Supreme Court has explained that Younger ab-
stention is rooted in the traditional principles of equity,
comity, and federalism:
[Younger’s] far-from-novel holding was based partly
on traditional principles of equity, but rested
primarily on the “even more vital consideration” of
comity. As we explained, this includes “a proper
respect for state functions, a recognition of the fact
that the entire country is made up of a Union of sepa-
rate 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.”
New Orleans Public Service, Inc., 491 U.S. at 364, quoting
Younger, 401 U.S. at 43-44 (internal citations omitted).
“[T]he principles of equity, comity, and federalism . . .
must restrain a federal court when asked to enjoin a state
court proceeding.” Mitchum v. Foster, 407 U.S. 225, 243
(1972) (discussing Younger and companion cases). “Coop-
eration and comity, not competition and conflict, are
essential to the federal design”, and Younger abstention
“reinforces our federal scheme.” Kowalski v. Tesmer, 543
U.S. 125, 133 (2004), citing Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 586 (1999). These same principles of
No. 09-3461 9
equity, comity, and federalism compel us to decline
to resolve this claim.4
4
These principles of equity, comity, and federalism that we
apply today have broad application. In the field of federal
habeas corpus, for example, long before Congress codified the
requirement for exhaustion of state remedies in 1948 in 28
U.S.C. § 2254, the Supreme Court imposed the requirement
based on these principles of equity, comity, and federalism. See
Preiser v. Rodriguez, 411 U.S. 475, 512-13 (claims could not “have
been heard on habeas corpus at the time the present habeas
corpus statute was enacted in 1867, or at the time the exhaustion
doctrine was first announced in Ex parte Royall, 117 U.S. 241
(1886), or at the time the requirement was codified in 1948”)
(Brennan, J., dissenting); Lee Kovarsky, AEDPA’s Wrecks:
Comity, Finality, and Federalism, 82 Tul. L. Rev. 443, 452 (2007)
(“Exhaustion was first formulated as a matter of discretion in
Ex parte Royall, but it quickly hardened into a fairly inflexible
rule. In 1948, Congress codified extant exhaustion doctrine.”).
In Ex Parte Royall, the Supreme Court first established the
exhaustion of state remedies requirement in habeas cases
based on the importance of federal deference when a state
court has already engaged a matter. The requirement was
necessary “in the light of the relations existing, under our
system of government, between the judicial tribunals of the
Union and of the States, and in recognition of the fact that the
public good requires that those relations be not disturbed by
unnecessary conflict between courts equally bound to guard
and protect rights secured by the [C]onstitution.” 117 U.S. at
251. This underlying consideration is not unique to habeas
cases. In fact, the Royall Court founded its exhaustion require-
ment on two cases that both involved civil claims against
(continued...)
10 No. 09-3461
SKS is not a defendant in the pending state eviction
actions, but it seeks to have a federal court tell state
courts how to manage and when to decide a category
of cases pending in the state courts. Federal adjudication
of SKS’s claims on their merits would reflect a lack of
respect for the state’s ability to resolve the cases properly
before its courts. Adjudication here would thus run
contrary to the “vital” considerations of comity and
federalism, see New Orleans Public Service, Inc., 491 U.S. at
364, and would be inconsistent with “the traditional
reluctance of a federal court to meddle in state court
proceedings,” see Pugach v. Dollinger, 365 U.S. 458, 462
(1961).
In terms of the more general equitable principles upon
which Younger abstention is based, SKS has failed to show
4
(...continued)
property. The Court quoted Covell v. Heyman, 111 U.S. 176, 182
(1884), for the point that when “courts of co-ordinate jurisdic-
tion” defer to one another to avoid conflicts, it “is a principle
of comity, with perhaps no higher sanction than the utility
which comes from concord; but between state courts and those
of the United States, it is something more. It is a principle of
right and of law, and therefore of necessity.” See Royall, 117
U.S. at 252; see also Taylor v. Carryl, 61 U.S. 583, 595 (1857) (also
quoted in Royall: it is “the duty of this court to give preference
to such principles and methods of procedure as shall serve to
conciliate the distinct and independent tribunals of the States
and of the Union, so that they may co-operate as harmonious
members of a judicial system coextensive with the United
States”).
No. 09-3461 11
that it has no adequate remedy at law. See Younger,
401 U.S. at 43-44. We understand that SKS believes
the chief judge’s general order is causing it harm in a
number of pending cases. As a litigant who believes a
state trial court has erred and caused it injury, SKS is not
alone, of course, but that is not a sufficient basis for the
federal courts to step in and tell the state courts how
to manage their dockets.
SKS insists that there is no adequate state remedy
here, but we are not convinced. “[W]hen a litigant has
not attempted to present his federal claims in related
state-court proceedings, a federal court should assume
that state procedures will afford an adequate remedy,
in the absence of unambiguous authority to the con-
trary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987)
(reversing lower courts’ failure to apply Younger absten-
tion where federal plaintiff had not tried to present its
federal constitutional claims to state courts). That as-
sumption from Pennzoil applies here. SKS’s complaint
identifies a number of pending cases in which SKS
could have sought relief from the state courts, but the
complaint reflects no such efforts. We see no “unambigu-
ous authority” that would prevent SKS from presenting
its federal claims in the state courts.5
5
The Supreme Court has taken care to ensure that the doors
to federal courts remain open when there are powerful
reasons to believe that state courts will not protect federal
constitutional rights. For example, in Dombrowski v. Pfister, 380
U.S. 479 (1965), African-American plaintiffs sued in federal
(continued...)
12 No. 09-3461
While the availability of just one state court remedy
would be sufficient to require abstention here, SKS
actually has three possible remedies available to it.
First, in any of its pending eviction cases, SKS may
simply ask the court to issue an order requiring the
sheriff to carry out the eviction within a certain amount of
time, notwithstanding the general order. SKS contends
that any such order “would be unenforceable” in light
of the general order. This is plainly wrong. A state court
system is capable of resolving any conflict or tension
5
(...continued)
court to block state prosecutions in a state court system that
were chilling protected First Amendment expression, and
there was reason to question the good faith of the state. The
Dombrowski plaintiffs alleged (with ample supporting evidence)
that the Louisiana court system was complicit in the state
prosecutor’s efforts to “employ arrests, seizures, and threats
of prosecution under color of [state] statutes to harass appel-
lants and discourage them and their supporters from
asserting and attempting to vindicate [their] constitutional
rights . . . .” Dombrowski, 380 U.S. at 482. The Younger Court cited
Dombrowski as a compelling example of situations where
federal courts must adjudicate claims challenging state court
procedures that “will not assure adequate vindication of
constitutional rights.” Younger, 401 U.S. at 48-49, citing
Dombrowski, 380 U.S. at 485-86. This case is much closer to
Younger than to Dombrowski because, as discussed below,
SKS has avenues available to raise its constitutional claims
before the state courts and has presented no allegations
that might put this case in the realm of Dombrowski.
No. 09-3461 13
between two orders by two judges. Here, the second
order would simply limit the discretion given to the
sheriff by the first one. A circuit court is not forever
bound by its general order and may revoke it, amend it,
and allow exceptions to it as it sees fit. See In Interest of
General Order of Oct. 11, 1990, 628 N.E.2d 786 (Ill. App.
1993) (reversing denial of motion to vacate a Cook
County Circuit Court general order). If a request for
a specific order for prompt eviction were denied,
the denial would be appealable via state appellate pro-
cedures.
As a second avenue for relief in the state courts, SKS
might file a separate suit seeking to vacate the general
order. If the circuit court (or a state appellate court)
found that state or federal law precluded or voided the
general order, it would have the power to vacate the
order. Nothing in the record suggests that SKS might
lack standing to bring such a suit, especially given the
importance of landlord and tenant rights and SKS’s
allegations that it has suffered and continues to suffer
substantial harm as a result of the general order. See
In Interest of General Order of Oct. 11, 1990, 628 N.E.2d 786
(Ill. App. 1993) (granting motion to vacate in direct chal-
lenge to a Cook County Circuit Court general order on
the grounds that it was an improper exercise of legisla-
tive power by the judiciary; no standing problem given
the “requisite degree of public interest”); see also In re
General Order of March 15, 1993, 629 N.E.2d 673 (Ill. App.
1994) (vacating general order that barred attorney
from appearing before the issuing judge; attorney had
14 No. 09-3461
standing to appeal the general order directly as it
applied specifically to her).6
As a third avenue for state court recourse, SKS may
seek a writ of mandamus to compel the circuit court to
rescind or vacate the general order and to compel the
sheriff to timely fulfill his duty to execute orders of evic-
tion. SKS contends that mandamus is not available
because the chief judge’s issuance of the general order
and the sheriff’s eviction executions are both discre-
tionary acts. “[M]andamus is used only to compel a
specific duty or act, but mandamus does not lie where
the order would interfere with the exercise of a discre-
tionary act.” DeVito v. Chicago Park District, 972 F.2d
851, 858 (7th Cir. 1992). Illinois appellate courts have
found that a circuit court does not have discretion to
issue a general order in certain circumstances. See In re
General Order of March 15, 1993, 629 N.E.2d at 678 (law
permitting circuit court to issue disciplinary general
order was unconstitutional); In Interest of General Order
6
The Illinois circuit courts are also fully capable of resolving
any federal constitutional arguments that SKS might make.
As the Supreme Court pointed out in Pennzoil, Article VI of the
United States Constitution requires all federal and state
judges to swear to uphold the United States Constitution. 481
U.S. at 15; accord, Allen v. McCurry, 449 U.S. 90, 105 (1980)
(state courts have the capacity and the obligation to render
decisions on federal constitutional issues); Martin v. Hunter’s
Lessee, 14 U.S. (1 Wheat.) 304, 341-44 (1816) (state courts have
a constitutional obligation to uphold federal law).
No. 09-3461 15
of Oct. 11, 1990, 628 N.E.2d at 789-90 (in issuing general
order, circuit court exceeded its authority under Illinois
statutes and the Illinois Constitution). The Illinois courts
can determine whether the issuance of the general order
was a discretionary act in light of governing Illinois law.
We see no unambiguous authority that would require an
answer blocking this possible avenue of relief.7
The only authority that gives the sheriff the discretion
to delay eviction based on his own subjective weather
determinations is the general order itself: “the Sheriff
shall cease execution of [eviction] orders . . . whenever
regardless of outside temperature, extreme weather
conditions endanger the health and welfare of those to be
evicted.” A writ of mandamus vacating the general order
would eliminate this discretion, and thus any decision to
delay eviction for subjective weather concerns would be
the proper target of a writ of mandamus itself. See
Farmer v. McClure, 526 N.E.2d 486, 490-91 (Ill. App. 1988)
(granting mandamus; state official had a clear duty to
act and no discretion to decline to act).
When a section 1983 suit seeks a federal order com-
pelling a state court to do something in an ongoing
action, it calls upon the federal courts to cause friction
with principles of comity and federalism. The friction
would be especially gratuitous in this case. We are
7
See Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009) (a police
officer’s discretion is limited to the bounds of the Constitution;
inherently discretionary acts lose their discretionary character
when they impinge upon a constitutional right).
16 No. 09-3461
asked to dictate to a state court how it must handle its
case adjudication, see Christensen v. County of Boone,
483 F.3d 454, 465 (7th Cir. 2007) (“each sovereign may
apply its own procedural rules in its own courts”); 735
ILCS 5/1-104(b) (“Subject to the rules of the Supreme
Court, the circuit and Appellate Courts may make rules
regulating their dockets, calendars, and business.”), and
we are asked to do so by a complaining party that has
failed to try the state court processes that can provide
the relief it seeks. The “vital consideration” of the “proper
respect for state [adjudicative] functions” would be sub-
verted if we were to entertain these claims. See Younger,
401 U.S. at 44.
We recognize that there is no general duty to exhaust
state judicial or administrative remedies before pur-
suing a section 1983 action. See Felder v. Casey, 487 U.S.
131, 146-47 (1988); Patsy v. Board of Regents of the State
of Florida, 457 U.S. 496, 500-501 (1982) (collecting cases).
However, when the section 1983 action seeks to impose
federal supervision on state court proceedings, the
federal courts must defer to the state’s sovereignty over
the management of its courts, at least so long as the
state does not substantively limit or procedurally ob-
struct something that Congress intended to provide by
enacting section 1983. See Felder v. Casey, 487 U.S. at 147
(“States retain the authority to prescribe the rules and
procedures governing suits in their courts . . . . [H]owever,
that authority does not extend so far as to permit States
to place conditions on the vindication of a federal right.”);
cf. Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985)
No. 09-3461 17
(stating that in a takings case, “a property owner has not
suffered a [Constitutional violation] until the owner has
unsuccessfully attempted to obtain just compensation
through the procedures provided by the State for ob-
taining such compensation” and drawing an analogy to
a denial of due process). Unlike the State of Wisconsin
in Felder, Cook County has done nothing to limit the
remedies available to claimants like SKS, nor has the
county attempted to force SKS into a specialized, burden-
some adjudication system. See Felder, 487 U.S. at 141-150
(striking state statute that limited remedies, provided
specialized courts, and imposed a notice restriction).
Illinois, like many states, has simply established that
its circuit courts are the venues where landlords may
obtain eviction orders. If a landlord has a pending ac-
tion before the circuit court and wishes to obtain
relief with regard to that action, it must petition that
court and/or the state appellate courts for the relief.
This case calls for application of familiar principles to
a novel type of lawsuit. SKS has not directed us to any
comparable case in which federal courts, in the face of
these principles of equity, comity, and federalism,
have undertaken to supervise state court operations. SKS
relies on the Sixth Circuit’s decision in Morrison v.
Lipscomb, 877 F.2d 463, 468 (6th Cir. 1989), in which the
Sixth Circuit held that a Michigan landlord who
objected to a state court’s similar seasonal moratorium
on residential evictions might be able to obtain relief by
naming the state court clerk as a defendant. The focus
of the Morrison opinion, however, was on doctrines of
judicial immunity. The opinion did not raise or address
18 No. 09-3461
the issues under abstention principles that we believe
are controlling here.
The claims here are not appropriate for resolution in
federal court. SKS is free to pursue a remedy in state
court. The judgment of the district court is A FFIRMED.
8-27-10