Opinion
No. 00 C 368
February 8, 2002
ORDER
Plaintiffs seek reconsideration of this court's decision to abstain from deciding this case under the Younger abstention doctrine. See General Auto Service Station v. City of Chicago, No. 00 C 368, 2001 WL 558148 (N.D. Ill. May 21, 2001). The dispute involves efforts by the City of Chicago (the "City") to regulate an illuminated painted exterior wall sign (the "Sign") located on a building at 1127-33 North State Street in Chicago, a property in which Plaintiffs hold a beneficial interest. During the 1990's, Whiteco Industries leased the wall surface on which the Sign is located. Although the Sign has been on the property since 1962 (at its current size since 1979), the City waited until December 1994 to issue a notice that the sign violated a 1990 amendment to the City zoning ordinance. In response to this notice, Whiteco applied in 1995 for a sign permit but, for unexplained reasons, the City took no action with respect to Whiteco's 1995 application, and instead issued a notice of violation in August 1997. Since that time, Whiteco has been involved in various administrative and state court proceedings in which it (a) seeks a permit for the Sign, (b) challenges the constitutionality of the zoning ordinance as applied to the Sign, and (c) alleges a violation of its due process and equal protection rights on account of the City's failure to process its 1995 permit application.
A more substantial review of the facts is set forth in that earlier decision.
On January 19, 2000, Plaintiffs filed this action in federal court claiming that the City's failure to process the 1995 sign permit application violated Plaintiffs' own procedural due process rights; that the zoning ordinance is unconstitutional as applied to Plaintiffs' property because it exceeds the City's police powers; and that the zoning ordinance violates Plaintiffs' First Amendment rights. While this case was pending, the Circuit Court of Cook County issued an opinion in Whiteco's case, affirming the (adverse to Whitco) decision of the Zoning Board of Appeals. ( See Whiteco Outdoor Advertising v. City of Chicago Zoning Board of Appeals, 98 CH 14280.) That decision is currently on appeal in the state courts.
Defendants moved to dismiss this action, arguing that the action is barred by the Rooker-Feldman doctrine, by the doctrine of res judicata, or by the Younger abstention doctrine. The court granted the motion and dismissed the case under Younger. Plaintiffs moved promptly for reconsideration, but the court again concludes that abstention is appropriate here. Under the Younger doctrine, abstention is appropriate where: (1) the judicial state proceedings are on-going; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity in the state court proceeding to raise constitutional challenges. Trust Investment Advisers, Inc. v. Hogsett, 43 F.3d 290, 295 (7th Cir. 1994). Even if these three criteria are met, abstention under Younger is not proper where "`the state proceeding is motivated by a desire to harass or is conducted in bad faith,'" or where "the case involves such extraordinary circumstances that the plaintiff will suffer irreparable injury even though the state action was brought in good faith." Brunken v. Lance, 807 F.2d 1325, 1331 (7th Cir. 1986), quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975), and citing Moore v. Sims, 442 U.S. 415, 433.
Plaintiffs do not dispute that the first two prongs of the Younger test apply here, nor do they argue that any of the exceptions to Younger are available. They urge, however, that contrary to the court's earlier determination, Plaintiffs have not had an adequate opportunity in state court to raise their constitutional claims. In again considering the issue, the court notes, first, that Plaintiffs bear the burden on this issue: "we assume that the state procedures will provide an adequate remedy in the absence of unambiguous authority to the contrary." Storment v. O'Malley, 938 F.2d 86, 90 (7th Cir. 1991); Pincham v. Illinois Judicial Inquiry Bd., 872 F.2d 1341, 1348 (7th Cir. 1989). At a hearing on this motion, this court observed, "I am not sure the court is finding that your clients have a viable avenue in state court. Perhaps you don't." ( Id., Exhibit A to Plfs. Brief at 14.) Plaintiffs equate this statement with a statement that Plaintiffs never had a viable avenue in state court. The context of this comment makes it clear, however, that the court was addressing only the current status of Plaintiffs' state court options. Plaintiffs' attorney urged that the proper analysis focused on whether the "would-be litigant . . . now ha[s] a viable option in state court." (Exhibit A to Plfs. Brief at 16.) This court corrected him, clarifying that the proper question is "not does he now. It's got to be did he ever? Because otherwise you just allow people to choose where they want to go and when they want to be there. . . ." ( Id.) The law is clear that a state remedy does not have to be available now for Younger abstention to apply, but rather, to avoid Younger abstention, a plaintiff must show that the state courts were not ever available to adjudicate his claims. See Pennzoil v. Texaco, Inc., 481 U.S. 1, 16-17 (1987).
Plaintiffs allege that the lessee, Whiteco, inadequately handled their claims in state court, and conclude that as a result, Plaintiffs did not have an adequate opportunity to raise their claims in that court, precluding application of the Younger doctrine. Plaintiffs here rely primarily on Diversified Financial Systems, Inc. v. Boyd, 286 Ill. App.3d 911, 678 N.E.2d 308 (4th Dist. 1997). Boyd concerns the adequacy of a privy's representation with respect to the potential res judicata effects of a judgment. In Boyd, the court observed:
Although tactical mistakes or negligence on the part of the representative are not as such sufficient to render the judgment vulnerable, "[w]here the representative's management of the litigation is so grossly deficient as to be apparent to the opposing party, it likewise creates no justifiable reliance interest in the adjudication on the part of the opposing party."Id. at 918, 678 N.E.2d at 312. In Boyd, there had been an earlier action in which the Federal Deposit Insurance Corporation sought recovery on notes, but assigned those notes to Diversified during the course of the litigation and withdrew from the case. Neither FDIC nor the debtors notified Diversified of the pending action, and the court dismissed FDIC's claims for failure to prosecute. Diversified then brought its own foreclosure action. The trial court concluded that the foreclosure action was barred by res judicata, but the appellate court reversed, observing that FDIC's representation of the interests of its assigned in the earlier litigation was "so obviously inadequate that [the alleged privy] cannot be bound by the judgment." Id. at 919, 678 N.E.2d at 313.
Assuming that the Boyd court's analysis of a res judicata defense is relevant at all, Plaintiffs here do not allege inadequate representation on nearly so grand a scale. Rather, Plaintiffs complain that Whiteco failed to raise federal constitutional claims, support its state constitutional claim, or identify certain evidence in support of its arguments that it was entitled to a sign permit. (Reply in Further Support of Plaintiffs' Motion to Reconsider (hereinafter, "Plfs. Reply"), at 4.) In this court's view, these errors, to the extent they are errors at all, fall in the category of "tactical mistakes or negligence" as opposed to "gross deficienc[ies]." The Boyd court found legal representation that amounted essentially to a total absence of representation to be grossly deficient; Plaintiffs, though unsatisfied with Whiteco's pursuit of their common interests, have not shown such grossly insufficient representation.
In any event, as noted, Boyd involved the res judicata doctrine. The court is uncertain that the adequacy of the privy's representation has the same significance in evaluating the third Younger abstention factor, namely, whether Plaintiffs had an adequate opportunity in the state court proceedings to raise the constitutional challenges. Plaintiffs failed to explain the connection between the two issues. In fact, the third Younger prong appears to invoke no any inquiry beyond whether it is possible to raise constitutional claims in the state proceedings. See Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998) (holding that availability of subsequent judicial review of constitutional claims made during administrative proceedings by petition to state court satisfies third Younger prong); Time Warner Cable v. Doyle, 66 F.3d 867, 884 (7th Cir. 1995) (even if the administrative agency declines to resolve the constitutional claims raised before it, third Younger prong satisfied because statute provided for judicial review of agency's actions); United States ex rel. Verdone v. State of Wisconsin, 61 F.3d 906 (7th Cir. 1995) (it does not matter that plaintiff chose not to present constitutional claims before the state courts, so long as plaintiff had an adequate opportunity to do so).
Plaintiffs' remarks during the reconsideration hearing are particularly telling on the issue of whether Plaintiffs could not, or chose not to, raise their constitutional claims in the state proceedings. Plaintiffs attempted to intervene in Whiteco's appeal to the state court from the Zoning Board of Appeals' adverse decision. General Auto Service Station, 2001 WL 558148 at *4. The state court judge denied Plaintiffs' motion to intervene because Plaintiffs were not a party to the administrative matter, the only matter before him, and observed that Plaintiffs should have intervened at the administrative hearing level. Id. This court inquired why Plaintiffs did not appeal the state court's denial of its motion to intervene, to which Plaintiffs' attorney responded: "We would rather be in federal court." Plaintiffs' preferences aside, they had an opportunity to pursue their claims in state court, and declining that opportunity cannot warrant federal court intervention into ongoing state proceedings. See Nelson v. Murphy, 44 F.3d 497, 501-02 (7th Cir. 1995) (where plaintiffs chose not to present objections to the state court regarding treatment plans approved by the state court and over which the state courts had jurisdiction, and instead filed independent suit in federal court, federal court did "not share plaintiffs' apparent view that dissatisfaction with state courts' handling of an issue justifies carting one's claim off to federal court").
Finally, Plaintiffs urge that this court, if it maintains the position that Younger abstention is required, should stay, rather than dismiss, this case. (Plfs. Brief at 3-4). As the City correctly observes, Plaintiffs cite absolutely no authority in support of this argument. Furthermore, it appears that the Seventh Circuit has approved of a stay, as opposed to an outright dismissal, pursuant to Younger only where a plaintiff raised claims for monetary relief that cannot be redressed in state proceedings. See Simpson v. Rowan, 73 F.3d 134, 138-39 (7th Cir. 1995). Plaintiffs do not seek monetary damages here, nor have Plaintiffs presented any argument or authority warranting a departure from the standard practice of dismissing claims where Younger abstention is appropriate. Plaintiffs' motion for reconsideration is denied (Doc. No. 38-1), and this case is dismissed.