For Your Eyes Alone, Inc. v. City of Columbus, Ga.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 6, 2002
_______________
THOMAS K. KAHN
CLERK
No. 01-13317
_______________

D. C. Docket No. 98-00083 CV-3-HL-4

FOR YOUR EYES ALONE, INC.,
d.b.a. For Your Eyes Alone,
WENDY BASKIN, et al.,

Plaintiffs-Appellants,

versus

CITY OF COLUMBUS, GEORGIA,
THE CITY COUNCIL OF COLUMBUS, GEORGIA, et al.,

Defendants-Appellees.

______________________________

Appeal from the United States District Court
for the Middle District of Georgia
______________________________

(February 6, 2002)
Before TJOFLAT and BIRCH, Circuit Judges, and GOLDBERG*, Judge.

BIRCH, Circuit Judge:

For Your Eyes Alone, Inc. (“FYEA”), Wendy Baskin, Diane Sherman, and

Robert Pennza appeal the district court’s decision to abstain from considering their

federal and state constitutional challenges to § 14-228 of the Adult Entertainment

Code enacted by the City of Columbus, Georgia (the “City”). The district court

based its ruling on the Younger1 abstention doctrine, which precludes federal

courts from exercising jurisdiction over suits aimed at restraining pending state

criminal actions. Because we conclude that there was no pending state criminal

action before proceedings of substance on the merits had taken place in federal

court, we hold that Younger abstention was improper. Accordingly, we

REVERSE.

I. BACKGROUND

At the time this litigation commenced, FYEA owned and operated a lingerie

modeling studio in Columbus, Georgia. Diane Sherman and Wendy Baskin were

lingerie models at the studio, and Robert Pennza served as general manager. Their

current dispute with the City began after the City Council of Columbus amended

*
Honorable Richard W. Goldberg, Judge, U.S. Court of International Trade, sitting by
designation.
1
Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971).

2
and reenacted the Adult Entertainment Code, Ordinance No. 96-21 (the

“Ordinance”), in 1996.2 The Ordinance, among other things, forbids a person who

has been convicted either of any felony or of a misdemeanor involving moral

turpitude from owning, managing, operating, or being employed by an “adult

entertainment establishment.”3 Columbus Code art. VI, § 14-227.4 The Ordinance

also prohibits such establishments from allowing “private modeling sessions or

2
In 1993, the City Council enacted the original version of the Adult Entertainment Code
as Ordinance 93-79. The Supreme Court of Georgia reviewed Ordinance 93-79 in Quetgles v.
City of Columbus, 264 Ga. 708, 450 S.E.2d 677 (1994) (“Quetgles I”). In Quetgles I, the court
reversed and remanded the trial court’s dismissal of the plaintiffs’ constitutional challenge to the
Ordinance. The court ruled that the plaintiffs had raised a justiciable issue concerning whether
the City had enacted the Ordinance in furtherance of a governmental interest unrelated to free
speech. In response to the court’s decision, the City Council amended and reenacted the Code as
Ordinance 96-21 in 1996.
3
Section 14-223 defines “adult entertainment establishments” as:
businesses in which, as the major activity, customers congregate primarily for the
purpose of viewing or associating with employees who display anatomical areas designed
to provide sexual stimulation or sexual gratification: human genitals, the immediate pubic
region, or pubic hair; buttocks to the extent of exposing the immediate anal area; female
breasts to points below the nipples; male genitals in a state of erection, even if covered
with opaque clothing; all of the above anatomical areas when covered only by transparent
or diaphanous clothing.
Columbus Code art. VI, § 14-223. The parties agree that FYEA is an adult entertainment
establishment under § 14-223.
4
The section states in full:
No person shall own, manage, operate in any manner or be employed in any capacity by
an adult entertainment establishment who has been convicted of or pled guilty or nolo
contendere to any federal or state felony within five (5) years of applying for the permit
from the chief of police necessary to do business or to be employed, nor shall any such
person who has been convicted of or pled guilty or nolo contendere to any federal or state
misdemeanor involving moral turpitude within two (2) years of such application be
issued such a permit.
Columbus Code art. VI, § 14-227.

3
other activities involving sexual displays” unless they take place in “a regular show

area with open seating.” § 14-228.5 To ensure regulatory compliance, the

Ordinance further requires “adult entertainment establishments and all employees

thereof . . . to apply for and obtain a permit from the chief of police certifying

compliance with this . . . [Ordinance].” § 14-225. The chief of police, in turn, is

provided a thirty-day time limit for granting or denying such a permit. Id.

After the passage of Ordinance 96–21, several Columbus adult businesses,

including FYEA, challenged its constitutionality in state court. Sherman, Baskin,

and Pennza were not parties to the state litigation. FYEA and the other businesses

ultimately lost their challenge when, in early 1997, the Georgia Supreme Court

upheld the Ordinance against constitutional attack. See Quetgles v. City of

Columbus, 268 Ga. 619, 491 S.E.2d 778 (1997) (“Quetgles II”).

Subsequent to its involvement in the state litigation, FYEA in February 1998

submitted its tax return to the City’s Revenue Department as part of the renewal

process for its business license. The Revenue Department notified FYEA that it

5
The section states in full:
No adult entertainment establishment shall allow and no employee thereof shall engage
in private modeling sessions or other activities involving sexual displays in which one (1)
employee is placed in a one-on-one situation with one (1) customer, and a regular show
area with open seating shall be required for such sessions or displays; neither shall any
adult entertainment establishment or any employee thereof allow personal physical
contact or close mingling between customers and employees.
Columbus Code art. VI, § 14-228.

4
could not renew the license because FYEA had not filed its current adult

entertainment permit with its tax return. FYEA then applied for an adult

entertainment permit with the City’s Police Department. Despite receiving a letter

from Sergeant Rick Stinson stating that FYEA was approved for an adult

entertainment permit, FYEA never received an actual permit, nor did it receive a

business license that would have allowed it to continue offering adult

entertainment.

The parties dispute why FYEA failed to obtain a permit or a renewed

business license. The City alleges that FYEA never received its permit because it

failed to follow the procedural steps for obtaining one, including picking up the

adult entertainment permit from the Police Department and having a representative

photographed. The City also contends that an undercover police operation led to

the conclusion that FYEA was not in compliance with the Ordinance, even though

FYEA counters that upon losing its challenge in state court, it had made the

necessary changes in its operational format and in the physical layout of its

building — such as by removing the doors on all of its modeling rooms — to

comport with the Ordinance’s provisions.

FYEA asserts that the City, through its Police Department, has unfettered

discretion to pick and choose who receives an adult entertainment permit and that,

5
as a result, Sergeant Stinson arbitrarily has changed the standards for what

constitutes a forbidden “private modeling session” under § 14-228 of the

Ordinance whenever he sees fit, thereby preventing FYEA from obtaining a permit

or business license. Indeed, FYEA argues, Stinson has granted a permit to another

adult entertainment establishment in Columbus with a physical layout similar to

FYEA. Stinson has even changed the definition of what constitutes the actual

permit itself, FYEA contends, on several occasions during this litigation.

In any event, after FYEA failed to obtain a permit or business license,

FYEA, Sherman, Baskin, and Pennza6 (collectively, “the FYEA Appellants”)

brought this action pursuant to 42 U.S.C. § 1983. They commenced the action in

April 1998 in the Middle District of Georgia against the City, the City Council of

Columbus, and other City officials. Their complaint facially challenged the entire

Ordinance, but it also raised more detailed challenges to two particular sections, §

14-227 and § 14-228. Their complaint alleged violations of the due process and

equal protection clauses of the United States and Georgia Constitutions, the takings

and contracts clauses of the United States Constitution, the First, Fourth, and Ninth

Amendments to the United States Constitution, and Article I, ¶ 5 of the Georgia

6
Sherman, Baskin, and Pennza joined the suit because they feared criminal prosecution
for noncompliance with the Ordinance. In the end, Pennza and several non-party FYEA models
were prosecuted for alleged Ordinance violations.

6
Constitution. The FYEA Appellants sought injunctive and declaratory relief,

damages, and attorney’s fees.7

On the same day they filed their complaint, the FYEA Appellants moved for

a preliminary injunction, and in the interim, for a temporary restraining order

(“TRO”), enjoining enforcement of the Ordinance. The City moved to dismiss the

FYEA Appellants’ complaint, arguing that claim and issue preclusion, the

Rooker/Feldman8 doctrine, and Younger abstention barred the FYEA Appellants’

claims. The City then filed its answer, and thereafter filed a separate motion for

summary judgment, which incorporated its prior arguments for dismissal and also

argued that absolute legislative immunity, the absence of vicarious liability in civil

rights cases, and qualified immunity barred the FYEA Appellants’ claims.

On 4 May 1998, the district court held an evidentiary hearing on the FYEA

Appellants’ application for a TRO. The court heard arguments from the counsel of

both sides, and it also heard testimony from Sergeant Stinson concerning the

alleged noncompliance of FYEA with the Ordinance. At the end of the hearing,

the court orally denied the FYEA Appellants’ TRO motion.

7
Subsequent to filing its federal lawsuit, FYEA went out of business. Consequently, the
FYEA Appellants now are only pursuing a claim for monetary damages.
8
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923).

7
 Up to that point, there were no criminal prosecutions pending against any of

the FYEA Appellants for violations of the Ordinance. On 5 May 1998, the

Columbus Police Department arrested Pennza, after the City already had filed its

motion to dismiss, its answer, and its motion for summary judgment, and after the

district court already had held the TRO evidentiary hearing and had ruled on that

motion. As manager, Pennza was arrested for not having an adult entertainment

establishment permit under §14-225 and for permitting private modeling sessions

at FYEA in violation of §14-228.

Even though there were no criminal prosecutions pending until 5 May 1998

against any of the FYEA Appellants, the district court granted the City’s motion to

dismiss (thereby mooting the FYEA Appellants’ motion for a preliminary

injunction and the City’s motion for summary judgment) based in part on Younger

abstention principles. Specifically, the district court dismissed the FYEA

Appellants’ complaint on the grounds that the court “[did] not have jurisdiction to

review final state court judgments and should abstain from interfering with

criminal prosecutions in the state courts.” For Your Eyes Alone, Inc. v. City of

Columbus, R1-22-1 (July 20, 1998).

The dismissal was appealed to this court, and we affirmed in part, vacated in

part, and remanded the case to district court for further proceedings. For Your

8
Eyes Alone, Inc. v. City of Columbus, R1-25 (October 4, 1999). We held that the

FYEA Appellants’ facial challenge to the Ordinance as a whole, as well as their

challenge to § 14-227 as unconstitutionally vague and overbroad, were barred by

claim and issue preclusion. We held, however, that the FYEA Appellants could

proceed with their vagueness, equal protection, free speech, privacy, takings, and

contract clause as-applied challenges to the City’s enforcement of § 14-228

because these claims relied on facts that arose after the state court litigation had

ended. In addition, we noted that “we [were] not certain that it was appropriate for

the district court to abstain as to Pennza because he was not arrested until after he

filed suit in federal court,” id. at 12, and we stated “that it was inappropriate for the

district court to abstain from hearing For Your Eyes Alone’s, Baskin’s, and

Sherman’s claims on the basis of Columbus’s prosecution of Pennza.” Id. at 13.

We concluded by noting that the district court could reconsider on remand whether

abstention as to Pennza was appropriate.

After the case was remanded, the City renewed its motion for summary

judgment. In considering the motion, the district court chose to abstain from

considering all four FYEA Appellants’ as-applied challenges to § 14-228. To

reach this conclusion, the court first reconsidered its earlier determination that

Younger abstention applied to Pennza’s claims. Erroneously concluding that

9
Pennza was arrested on 4 March 1998,9 before the federal litigation had

commenced, the district court held that Younger abstention was appropriate.

Furthermore, even though we had stated that Younger abstention was not proper as

to the claims of FYEA, Baskin, and Sherman, the district court nevertheless went

on to hold that it should abstain from their claims under Younger based on the

doctrine of “derivative abstention.” See Doran v. Salem Inn, Inc., 422 U.S. 922, 95

S. Ct. 2561 (1975); Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281 (1975).10 As a

consequence, the district court dismissed all four FYEA Appellants’ claims as to

§14-228 and granted final judgment to the City.

On appeal, the FYEA Appellants present several arguments as to why the

district court erred in its decision under Younger to abstain from hearing their as-

applied constitutional challenges to § 14-228. The FYEA Appellants assert that

because the district court incorrectly found that Pennza was arrested prior to the

commencement of this federal suit, the court’s entire analysis under Younger was

skewed. The FYEA Appellants’ position is also that, even if abstention was proper

9
The City acknowledges that Pennza was not arrested until 5 May 1998, after the
commencement of the federal court litigation.
10
Despite the fact that we already had held that the FYEA Appellants’ challenge to § 14-
227 was barred based on claim and issue preclusion, the district court also reconsidered this
issue and upheld § 14-227 against constitutional attack based on its conclusion that the section
was not void for vagueness. The FYEA Appellants have chosen not to challenge the district
court’s ruling with regard to § 14-227.

10
as to Pennza, the court erred in abstaining from FYEA, Baskin, and Sherman’s

claims based on the derivative abstention doctrine, given that (1) we already had

addressed the issue in our prior opinion, (2) none of the three had an ongoing state

proceeding pending against them, and (3) their claims for monetary damages could

not be raised or addressed in Pennza’s state criminal proceeding.

Younger abstention is not warranted, the FYEA Appellants further contend,

because several exceptions to the doctrine apply here. See Younger 401 U.S. at 45,

53-54, 91 S. Ct. at 751, 755.11 In the FYEA Appellants’ view, Sergeant Stinson’s

testimony indicates that the City has acted arbitrarily and in bad faith in its

enforcement of the Ordinance. The Ordinance itself, moreover, is patently

unconstitutional, they argue, because it constitutes an unlawful prior restraint under

the First Amendment. The FYEA Appellants also assert that there is no adequate

state forum in which Pennza and the other FYEA Appellants can pursue their

federal constitutional challenges, given that Pennza’s de novo appeal of his state

criminal conviction in Recorder’s Court has been pending since 1998, an unusually

11
In Younger, the Supreme Court laid down three exceptions to the abstention doctrine
enunciated therein. Abstention is not warranted if (1) there is evidence of state proceedings
motivated by bad faith, (2) the state law being challenged is patently unconstitutional, or (3)
there is no adequate alternative state forum where the constitutional issues can be raised.
Younger, 401 U.S. at 45, 53-54, 91 S. Ct. at 751, 755.

11
lengthy period of delay.12 The FYEA Appellants conclude their argument by

maintaining that, even if abstention were proper as to all the parties, the district

court erred in dismissing their claim for monetary damages and in granting final

judgment to the City, instead of staying that claim. See Deakins v. Monaghan, 484

U.S. 193, 202, 108 S. Ct. 523, 529 (1988) (holding that courts have “no discretion

to dismiss rather than to stay claims for monetary relief that cannot be redressed in

the state proceeding”).

The City responds by arguing that, although Pennza was not arrested until

after the federal proceedings had been filed, the arrest still occurred “before any

proceedings of substance on the merits . . . [had] taken place in the federal court,”

which would mean that Younger abstention still applies to Pennza’s claims. Hicks,

422 U.S. at 349, 95 S. Ct. at 2292. The City further contends that the district court

was correct in holding that abstention as to Pennza’s claims requires abstention as

to the other three FYEA Appellants’ claims under the derivative abstention

doctrine. From the City’s perspective, the four FYEA Appellants share a close

employment relationship and have interests that are completely intertwined,

thereby making this case a prime candidate for application of derivative abstention.

12
The FYEA Appellants concede, however, that they have taken no steps to speed up the
state proceedings, such as by filing a speedy trial motion.

12
See id. at 348, 95 S. Ct. at 2291.

The City’s position is also that none of the exceptions to Younger apply

here. First, the City argues that there is no evidence of bad faith on its part because

the FYEA Appellants cannot demonstrate “that the prosecution was brought

without a reasonable likelihood of obtaining a valid conviction.” Redner v. Citrus

County, 919 F.2d 646, 650 (11th Cir. 1990). Second, the City maintains that even

if the Ordinance were facially unconstitutional, it cannot reasonably be deemed

patently unconstitutional, a stringent standard that requires that the statute at issue

violate the Constitution “in every clause, sentence and paragraph, and in whatever

manner and against whomever an effort might be made to apply it.” Younger, 401

U.S. at 53-54, 91 S. Ct. at 755 (internal quotations and citation omitted). Third, the

City states that because Pennza is entitled to a de novo review of his arrest and

conviction by the State Court, there is an adequate alternative forum for hearing the

constitutional challenges raised in this case.

The City concludes its appellate brief by addressing whether the district

court erred in dismissing the FYEA Appellants’ claim for monetary damages.

Referring to Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 719, 116 S. Ct. 1712,

1722 (1996), the City contends the district court had discretion to dismiss, rather

than to stay, this case because the FYEA Appellants’ claim for monetary damages

13
was dependent on the FYEA Appellants’ first obtaining declaratory relief that a

state law was unconstitutional.

II. DISCUSSION

As we turn to the contentions of the parties, we begin by noting that

“[a]bstention from the exercise of federal jurisdiction is the exception, not the

rule.” Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 813,

96 S. Ct. 1236, 1244 (1976). “[F]ederal courts have a virtually unflagging

obligation to exercise their jurisdiction except in those extraordinary circumstances

where the order to the parties to repair to the State court would clearly serve an

important countervailing interest.” Deakins, 484 U.S. at 203, 108 S. Ct. at 530

(1988) (internal quotations and citation omitted). Attentive to the principles of

equity, comity, and federalism, the Supreme Court in Younger recognized an

exception to this unflagging obligation. The Younger Court held that federal

courts should abstain from suits aimed at restraining pending state criminal

prosecutions. Younger, 401 U.S. at 41, 91 S. Ct. at 749.13 In addressing whether

such abstention is appropriate in a given case, we review the district court’s

13
In subsequent cases, the Supreme Court has held that Younger abstention is sometimes
applicable to restrain federal court interference with certain noncriminal state proceedings that
implicate important state interests. See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S. Ct.
1519 (1987); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.
Ct. 2515 (1982).

14
decision to abstain for abuse of discretion. Boyes v. Shell Oil Prods. Co., 199 F.3d

1260, 1265 (11th Cir. 2000).

In arguing over whether the district court erred, the parties have raised

several separate issues concerning the scope and application of Younger. All of

these issues, however, are tied to the district court’s decision to abstain from

Pennza’s claims due to the state criminal proceedings pending against him. If the

district court abused its discretion in abstaining as to Pennza, the court necessarily

abused its discretion in abstaining as to the other three FYEA Appellants as well

since the the court, employing the derivative abstention doctrine, held that their

interests were intertwined with those of Pennza. See Hicks, 422 U.S. at 348, 95 S.

Ct. at 2291. Additionally, if abstention was improper regarding Pennza, we of

course need not reach whether any of the exceptions to Younger apply to this case,

nor need we determine whether a stay or dismissal of the FYEA Appellants’

monetary damages claim constituted the correct procedure here because neither

would have been appropriate. As a matter of judicial economy, then, we first

address whether the district court abused its discretion in abstaining from Pennza’s

claims.

As we have explained, the district court erroneously concluded that Pennza

was arrested on 4 March 1998, prior to the commencement of the federal court

15
litigation. In fact, as the City itself concedes, Pennza was not arrested until 5 May

1998, after the FYEA Appellants’ federal suit already was underway. The district

court’s entire abstention analysis regarding Pennza thus was predicated on an

inaccurate factual scenario. Indeed, the court, because of its mistake, did not even

address Younger precedent that articulates the circumstances under which

abstention can properly be invoked even when the state criminal prosecution

occurs after the federal action has commenced. See, e.g., Hicks, 422 U.S. at 349,

95 S. Ct. at 2292. We have decided, however, it would not be prudent to remand

this case for the district court to reconsider, with an eye towards such precedent

and in light of Pennza’s accurate arrest date, whether abstention is warranted.

Rather we remand with instructions for the district court to exercise its jurisdiction

and proceed with this case on the merits because, as we explain infra, the court

would be acting outside its discretion on remand if it chose to abstain, given the

actual date of Pennza’s arrest.

Turning to whether abstention based on Pennza’s prosecution is proper in

the present case, we note that in Steffel v. Thompson, the Supreme Court held that

Younger abstention is inappropriate if there is no pending state criminal

prosecution of the plaintiff. 415 U.S. 452, 462, 94 S. Ct. 1209, 1217 (1974); see

also Middlesex County, 457 U.S. at 432, 102 S. Ct. at 2521 (indicating that

16
Younger abstention applies only if (1) there are pending state proceedings at the

time of the federal action, (2) the proceedings implicate important state interests,

and (3) the proceedings provide an adequate opportunity for raising federal

constitutional questions). In the absence of a pending prosecution, the principles

that provided the rationale for abstention — equity, comity, and federalism —

“have little force.” Steffel, 415 U.S. at 462, 94 S. Ct. at 1217 (internal quotations

and citation omitted). The Steffel Court went on to explain:

Requiring the federal courts totally to step aside when no state criminal
prosecution is pending against the federal plaintiff would turn federalism on
its head. When federal claims are premised on 42 U.S.C. § 1983 . . . we
have not required exhaustion of state judicial or administrative remedies,
recognizing the paramount role Congress has assigned to the federal courts
to protect constitutional rights. But exhaustion of state remedies is precisely
what would be required if . . . federal . . . relief were unavailable in a case
where no state prosecution had been commenced.

Id. at 472-73, 94 S. Ct. at 1222 (internal citations omitted). In so ruling, the

Supreme Court ensured that “Our Federalism” “does not mean blind deference to

‘States’ Rights,’” but instead a “system in which there is sensitivity to the

legitimate interests of both State and National Governments.” Younger, 401 U.S.

at 44, 91 S. Ct. at 750.

Subsequent to Steffel, the Supreme Court elaborated on what constitutes a

“pending” state criminal prosecution. For Younger abstention purposes, the

Supreme Court has held that the determination of whether a prosecution is pending

17
is not made based on the respective commencement dates of the state and federal

actions. Instead, the Court has ruled that federal courts are to abstain if the state

criminal prosecution commenced “before any proceedings of substance on the

merits have taken place in the federal court,” Hicks, 422 U.S. at 349, 95 S. Ct. at

2292, or if “the federal litigation [is] in an embryonic stage and no contested matter

[has] been decided,” Doran, 422 U.S. at 929, 95 S. Ct. at 2566. The state

prosecution therefore need not predate the federal action for Younger abstention to

apply.

Conversely, if there have been proceedings of substance and the federal

litigation thus has moved beyond the embryonic stage before the state action

commences, the Supreme Court has made it clear that federal courts do not have

the discretion to abstain from exercising jurisdiction. For example, the Court has

ruled that issuance of a preliminary injunction by a federal court constitutes a

proceeding of substance on the merits such that the suit is no longer in its

embryonic stage, thereby rendering Younger abstention inappropriate. See Hawaii

Housing Auth. v. Midkiff, 467 U.S. 229, 238, 104 S. Ct. 2321, 2328 (1984);

Doran, 422 U.S. at 930, 95 S. Ct. at 2567. Other federal courts, in turn, have

decided that the denial of a preliminary injunction also can constitute a proceeding

of substance, when coupled with a thorough evidentiary hearing. See, e.g.,

18
Adultworld Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir. 1985).

In light of this case law, we conclude that the FYEA Appellants’ lawsuit in

federal court, by the time the City initiated its prosecution of Pennza, had

progressed beyond the point at which Younger abstention could properly be

invoked. When the City arrested Pennza on 5 May 1998, the City already had filed

a motion to dismiss the FYEA Appellants’ federal case. The City already had filed

its answer. The City already had filed a separate motion for summary judgment.

The district court, furthermore, already had held a thorough evidentiary hearing

concerning the FYEA Appellants’ TRO motion. The court, before ruling on the

TRO issue in the City’s favor, heard testimony from Sergeant Stinson concerning

the alleged noncompliance of FYEA with the Ordinance, and the court heard

arguments from counsel of both sides. It was only after all of these proceedings

had occurred that the City finally chose to arrest Pennza. Under these

circumstances, we have no trouble concluding that Pennza’s arrest occurred after

proceedings of substance on the merits had taken place in federal court under

Hicks, 422 U.S. at 349, 95 S. Ct. at 2292, and after the case had moved beyond the

embryonic stage and a contested matter had been decided under Doran, 422 U.S. at

929, 95 S. Ct. at 2566, thus making Younger abstention inappropriate.

We of course recognize that the Supreme Court has indicated that the mere

19
denial of a TRO by the district court, without more, does not constitute a

proceeding of substance that renders Younger abstention improper when the state

prosecution is initiated after the denial. See Hicks, 422 U.S. at 338, 95 S. Ct. at

2286; Doran, 422 U.S. at 925, 95 S. Ct. at 2564. It is true that in the present case,

the district court denied the FYEA Appellants’ TRO motion. But beyond this

rudimentary similarity, the procedural facts of this case and those of Hicks and

Doran are completely divergent.

In Hicks, state criminal proceedings commenced one day after service of the

federal complaint. 422 U.S. at 349, 95 S. Ct. at 2292. The state prosecution

therefore was instituted even before the state had answered the federal complaint,

as well as before any proceedings whatsoever were conducted before the three-

judge court convened for that case. Id. at 350, 95 S. Ct. at 2292. In addition, prior

to filing of the federal complaint, films of the plaintiffs already had been deemed

obscene and seizable in a proceeding before the state superior court, and the

plaintiffs had made an appearance at the hearing and were given an opportunity to

participate therein. Id. at 335-36, 95 S. Ct. at 2285. Similarly, in Doran, the state

criminal prosecution was commenced only one day after the filing of the federal

complaint. 422 U.S. at 925, 95 S. Ct. at 2564. The plaintiffs’ TRO motion had

been denied instanter by the district court on the same day the federal complaint

20
was filed. Id.

In contrast to Hicks and Doran, the City’s criminal prosecution of Pennza

was not initiated in virtual unison with the FYEA Appellants’ filing their federal

complaint. Unlike in those two cases, the City commenced Pennza’s prosecution

only after it had begun actively litigating its position in federal court; by the time

the City commenced the prosecution, the City had filed its answer, and the City

had moved on various grounds for dismissal of the complaint and for summary

judgment. In addition, the district court did not deny the FYEA Appellants’ TRO

motion instanter or without a hearing. Nor was the district court’s TRO decision

based on an ex parte hearing under Federal Rule of Civil Procedure 65(b) without

the benefit of the City having notice or making an appearance. Rather, the district

court rendered its TRO decision only after conducting an evidentiary hearing at

which Sergeant Stinson testified and at which the counsel of both sides argued for

their respective positions.

The foregoing procedural facts show that the present case is not a replay of

Hicks and Doran because all three involve the denial of a TRO motion. The lack

of any hearings whatsoever in Hicks and Doran prior to when the state

prosecutions at issue commenced — combined with the stark fact that the states,

having filed no pleadings, had not begun actively litigating the federal case at the

21
time the prosecutions were initiated — places them in a separate category from this

case. We therefore are confident that the decisions of Hicks and Doran are fully

consistent with (and indeed buttress) our conclusion here.

Our decision that Younger abstention is unwarranted in the present case is

colored by the cautious approach we have chosen to take in interpreting the scope

of Hicks, given its possible effect on the federal jurisdictional scheme. On the one

hand, the requirement enunciated in Hicks — a federal court must abstain if a state

action is filed before proceedings of substance on the merits have occurred —

ensures that the Younger doctrine neither is trivialized nor made formalistic by

permitting a party to obtain federal relief merely by beating the state to the

courthouse. Hicks, 422 U.S. at 350, 95 S. Ct. at 2292.

On the other hand, if we define too narrowly what constitutes proceedings of

substance on the merits, we risk “vest[ing] the district attorney — not the

aggrieved citizen — with the power to choose the forum, and, indeed, the nature of

the proceeding in which the federal constitutional claim [will] be litigated.” Owen

M. Fiss, Dombrowski, 86 Yale L.J. 1103, 1135 (1977); see also Erwin

Chemerinsky, Federal Jurisdiction § 13.3, at 788 (3d ed. 1999). Indeed, we would

risk creating an expansive “reverse removal power” in that state prosecutors, in

effect, would have broad discretion to remove federal civil rights actions to state

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criminal court on a routine basis, even after the plaintiff had invested precious time

and resources to bringing the federal litigation. Fiss, supra, at 1136.

Consequently, while Hicks teaches us to refrain from focusing disproportionately

on the respective commencement dates of the state and federal actions in

determining whether Younger abstention applies, we must, at the same time,

remain circumspect about interpreting Hicks in a manner that gives state officials

expansive leeway to override a plaintiff’s choice of whether to litigate in a federal

or state forum. Our decision here is an attempt to strike this balance.

Our decision also is marked by concern over the costs of abstention in a suit

where the plaintiff brings a facial or as-applied challenge to a state statute on First

Amendment free speech grounds. Uncertainty as to the constitutionality of the

statute at issue, or as to the conduct of the state agents implementing the statute,

can in itself chill future speech. This uncertainty can be seen as one of the costs of

Younger abstention, given that the doctrine may delay resolution of the First

Amendment issue. These costs are compounded the more the plaintiff (and the

court) invest time and resources in the federal litigation, only to have the suit

remitted to a newly-initiated criminal proceeding in state court, where the First

Amendment claims must in effect be relitigated. It is true that First Amendment

concerns do not, in themselves, provide a federal court with justification for

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interfering with a pending state criminal proceeding. Younger, 401 U.S. at 51, 91

S. Ct. at 754; Butler v. Alabama Judicial Inquiry Comm’n, 245 F.3d 1257, 1265

(11th Cir. 2001). But that proposition, of course, does not preclude our taking into

account, in the First Amendment context, the costs of duplication and delay caused

by Younger as we calibrate how broadly or narrowly to define proceedings of

substance on the merits under Hicks. We have tried to be sensitive to these costs in

the present case, where the FYEA Appellants have yet to have their as-applied

constitutional challenges addressed on the merits even though the contested actions

of the City occurred in 1998, and where the City chose to initiate criminal

proceedings only after it had filed its answer as well as several other pleadings, and

only after the district court had held a thorough TRO evidentiary hearing and had

ruled on that issue.

III. CONCLUSION

This case involves the appeal of a final judgment in which the district court

dismissed the FYEA Appellants’ as-applied constitutional challenges to § 14-228

of the Adult Entertainment Code enacted by the City of Columbus. Erroneously

concluding that the state criminal proceedings against Appellant Pennza were

initiated prior to the commencement of the federal litigation, the court dismissed

all four FYEA Appellants’ claims with regard to § 14-228 based on Younger

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abstention. As we have explained, Pennza’s state prosecution actually commenced

subsequent to the City having filed its motion to dismiss, its answer, and its motion

for summary judgment. It also commenced subsequent to the district court having

ruled on the FYEA Appellants’ TRO motion, which had been preceded by a

thorough evidentiary hearing.

Based on the corrected procedural time line, we have decided that a remand

for reconsideration is not sufficient. Rather we have concluded that the district

court does not have the discretion on remand to abstain under Younger because,

under the corrected facts, Pennza’s state prosecution commenced after proceedings

of substance on the merits had occurred in the federal litigation under Hicks, 422

U.S. at 349, 95 S. Ct. at 2292, and after the federal case had moved beyond the

embryonic stage and the district court had ruled on a contested matter under Doran,

422 U.S. at 929, 95 S. Ct. at 2566. Pennza’s challenges to the City’s enforcement

of § 14-228 thus are not foreclosed by the Younger abstention doctrine, and neither

are the challenges of the other three FYEA Appellants, where the court’s decision

to abstain was predicated on Pennza’s case. Accordingly, we REVERSE the

judgment of dismissal with regard to the FYEA Appellants’ as-applied challenges

to § 14-228 of the Adult Entertainment Code, and we REMAND for further

proceedings consistent with this opinion.

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