## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4199

___________ Night Clubs, Inc., doing business as * Regina's House of Dolls, II, *

Appellant, *

v. * District Court for the City of Fort Smith, Arkansas; William * W. Harding, Individually and as * Director of Planning; Michael Fisher, * Individually and as Commissioner; * James Damron, individually and as * Commissioner; John E. Keller, * Individually and as Commissioner; * George McGill, Individually and as * Commissioner; Jack Grober, * Individually and as Commissioner; * Ronald W. Rouse, Individually and as * Commissioner; Lawrence A. Devero, * Individually and as Commissioner; * Lynn V. Snider, Individually and as * Commissioner; Robert J. Mulson, Jr., * Individually and as Commissioner; * Fort Smith Planning Commission, *

Appellees. * *

* Appeal from the United States

* Western District of Arkansas.

*

___________ Submitted: May 14, 1998 Filed: December 14, 1998

___________The Younger abstention doctrine, which has its roots i n Younger v. Harris , 401 1 U.S. 37 (1 971), directs federal courts to abstain from accepting jurisdiction in case s where equitable relief is requested and where granting such relief would interfere with pending state proceedings in such a way as to offend principles of comity an d federal ism. See American Nat'l Bank v. Parkman , 702 F. Supp. 168, 170 (N.D. Ill

. 1988).
-2- Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. NightC lubs, Inc., doing business as Regina's House of Dolls II (Regina's) , appeals f rom the district court's dismissal with prejudice of its federal civil right s action. Regina's argues that the district court erred in abstaining under the Younge r do ctrine, and that even if Younger abstention was appropriate, dismissal with 1 preju dice was not. We affirm the district court's decision to abstain pursuant t o Younge r , but we vacate the dismissal and remand for the entry of a stay. We gran t both parties' motions to supplement the record.

I.
Regina' s leases certain property located at 7900 Highway 71 in Fort Smith , Arkans as. The leased property is zoned as "Commercial-5," a designation whic h allows Regina's to engage in "retail uses that serve the motoring public" and ar e "characterized by a high level o f vehicular activity." Fort Smith Mun. Code § 27-180. On March 20, 1997, Regina's filed a Business Registration Application with the City of Fort Smi th (the City), requesting permission to open a nightclub on the property

. Becaus e nightclubs are listed as allowable on land zoned as Commercial-5, see Fort Smith Mun. Code § 27-106, the Fort Smith Planning Commission approved th e application. Less than two weeks later, on April 1, 1997, Regina's filed a secondThe zoning ordinance is reproduced at pages 332-357 of the joint appendix

. 2 Section 27-106 of the ordinance is a schedule li sting various commercial entertainment uses and noting their zoni ng classifications. Among these is "dance halls, night clubs,
or discoth eques," but no listed use mentions nude or exotic dancing or any form o f "ad ult" entertainment. The ordinance defines "dance halls, night clubs, o r disco theques" to mean "an establishment whose primary activity is the provision o f facilities for dancing and live entertainment or amplified music. Such establishmen t may or may not provide on -premises consumption of alcoholic beverage." Fort Smith Mun. Code § 27-2.
-3- app lication, this time requesting permission to open an exotic (i.e., nude) dancin g facility at the same location.

The staf f at the Planning Commission determined that exotic dancing was no t a "listed commercial

entertainment use" within the meaning of sections 27-96 and 27- 106 of the zonin g ordinance. Pursuant to section 27-97 of the zoning ordinance, the 2 matt er was referred to William W. Harding, the Director of Planning, for "a n administrative decision as to the appropriate zone s" in which nude dancing, an unlisted use, would beallowed. Before rendering a decision, Harding consulted with the City Atto rney, who informed Harding that a total ban would probably not survive a court challenge. (Jt. App. at 502.) Harding determined that nude dancing would b e permissible only in property designated as Commercial-5-SPL-D, a zonin g classification reserved for uses ser ving "the motoring public" which "are characterized by a higher

level of vehicu lar activity." Fort Smith Mun. Code § 27-181(a) (emphasis added). At the time of his decision, only one one-half acre plot of land in Fort Smith was zoned as Commercial-5-SPL-D. (Jt. App. at 502.) Hardin g explained his decision in the following way in his letter to Regina Capps, owner of Regina's:

As ou tlined within the procedures of [section 27-97,] in my capacity o f [s ic] Director of Planning I have made an administrative decision that ex otic dancing facilities and adult oriented businesses shall be assigne d to the Commercial-5-SPL-D zoning distr ict. This decision is made as the-4-

four Commercial-5 special u se zones are categorized by virtue of the use intensities within the respective categories. Intensities are evaluated on the ba sis of anticipated traffic and/or pedestrian movements associate d with a particular use and other characteristics relative to the impact t o surrounding property.
(Jt. App. at 319.) Harding went on to explain that because the property at 790 0 High way 71 was zoned Commercial-5, the property did not qualify for the intende d use. Accordingl y, Harding informed Capps that the application for a business license had been denied. ( Id. )
Regina's appealed Harding's decision to the fu ll Planning Commission. See Fort S m ith Mun. Code § 27-97(3). Pursuant to § 27-97(4), the Commission was required to consider "the nature of the proposed use and its compatibility with uses permitte d in the zon es for which the use is proposed" before it rendered its decision

. Ac cordingly, the Commission held a public hearing, at which it solicited argument s from counsel and comments from citizens in a ttendance. Regina's attorney argued that Harding's decision conflicted with the plain meaning of the Municipal Ordinance and the First Amendment to the United States Constitution. (Jt. App. at 368, 385.) After the d iscussion concluded, the Commission voted unanimously to affirm Harding' s decision denying Regina's application.

Pur suant to Fort Smith Municipal Code section 27-97(5) and Arkansas Cod e Annotate d section 14-56-425 (1987), Regina's filed a lawsuit in Sebastian County Circuit Cour t for review of the Planning Commission's decision. This suit was file d

onJune 12, 1997. The original complaint alleged federal constitutional violations i n additionto state law claims, but Regina's voluntarily amended the complaint an d elim inatedthe federal constitutional claims. On October 15, 1997, the Sebastia n County Ci rcuit Court ruled that Regina's had failed to perfect its appeal from th e Pla nning Commission's decision; accordingly, it dismissed Regina's state action

. Regina's filed a notice of appeal on November 14, 1997, arguing that the state'sWe refer to the defendants collectively as "the City" throughout. 3
-5- pe rfectionrules are unconstitutionally vague. This appeal was pending before th e Supreme Court of Arkansas at the time this case was submitted.
On July 24, 1997, Regina's filed a civil rights action under 42 U.S.C. § 1983 in feder al district court, naming as defendants the City of Fort Smith, various member s of the Planning Commission, and the Planning Commission itself. Regina's federa l 3 complain t

alleges violations of its First Amendment rights and requests monetary damages in addition to injunctive relief. On August 6, 1997, the City filed a motio n to dismiss Regina's federal suit, arguing that the district court should abstain fro m accepting jur

isdiction in deference to the ongoing state proceeding. On September 3, 1997, the district court granted the City' s motion and dismissed Regina's federal action with prejudice, relying on the Younger doctrine. After the state circuit court dismissed Regina's appeal, Regina's filed a motion for amendment of judgment and new trial in federal district court, contending that there w as now no ongoing state court proceeding to support Younger

abstention. The motion was denied. Regina' s appeals, arguing that the Younger

doctrine is inapplicable and that, in any case, dis missal with prejudice was inappropriate.

II.
The Supreme Court recently affirmed that federal courts "'have no more right to decline t he exercise of jurisdiction which is given, than to usurp that which is no t given,'" and that "'[t]he one or the other would be treason to the Constitution.'" New Orleans Pub. Serv., Inc. v. N ew Orleans , 491 U.S. 350, 358 (1989) ( NOPSI ) (quoting Cohens v. Virginia , 6 Wheat. 264, 404 (1821)). This is true because "Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionall y permissible bounds." Id. at 359. The Court stressed in NOPSI that the federal courts' "vir tually unflagging" duty to exercise jurisdiction "does not eliminate . . . the federal-6-

courts' discretion in

determining whether to grant certain types of relief." Id. (internal quotations omitted). The common law discretion of courts to withhold equitable forms of re lief predates the enactment of the statutes defining federal jurisdiction, and th e Supreme Court has therefore interpreted the jurisdictional statutes as preserving thi s traditional discretion in the federal courts. See id. The court has formulated various "abstention" doctrines, which are not "rigid pig eonholes into which federal courts must try to fit cases," id. (internal quotations omitted), but rather classes of cases in which f e deral courts may properly exercise their traditional discretion to withhold equitable or quasi-equitable forms of relief.

In Younger , the Supreme C ourt held that federal courts may not enjoin pending st ate court criminal proceedings except in very unusual situations. The Younge r doctrine has s ince been expanded to prohibit federal courts from interfering in certain pen ding state civil cases, see Huffman v. Pursue, Ltd. 420 U.S. 592, 603-07 (1975) , as wel l as pending state administrative proceedings which are judicial (as opposed to legislative) in nature, see Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc. , 477 U.S. 619, 627 (1986); Middlesex County Ethics Comm. v. Garden Sta te Bar Ass'n , 457 U.S. 423, 431-32 (1982).
There are essentially three issues that must b e addressed in determining whether to invoke the Younger

abstention doctrine: (1) whether the action complained o f constitutes an ongoing state judicial proceeding; (2) whet her the proceedings implicate important state interests; an d (3) whether there is an adequate opportunity in the state proceedings to raise constitutional challen ges. See Middlesex , 457 U.S. at 432. If all three qu estions are answered affirmatively, a federal court should abstain unless i t detects "bad faith, harassment, or some extraordinary circumstance that would make abstention inappropriate." Id. at 435.

We rev iew the district court's decision to abstain under Younger for abuse o f discretion. Fuller v. Ulland , 76 F.3d 957, 959 (8th Cir. 1996). Central to our review-7-

is the question of whether the district court properly applied the three Middlese x criteria. We first examine whether the initial state action constituted an "ongoing state judicial proceeding." Middlesex , 457 U.S. at 432; see also NOPSI , 491 U.S. at 368 ("[I]t has never been suggested that Younger require s abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requ irement

would make a mockery of the rule that only exceptional circumstance s justify a f

ederal court's refusal to decide a case in deference to the States."). Th e Supr eme Court has described the distinction between judicial proceedings an d legislative proceedings as follows:

A jud icial inquiry investigates, declares and enforces liabilities as the y stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to th e future a nd changes existing conditions by making a new rule to b e applied thereafter to all or some part of those subject to its power.
491 U.S. a t 370-71 (quoting Prentis v. Atlantic Coast Line Co. , 211 U.S. 210, 22 6 (1908) (Holmes, J.)).

Th e promulgation of zoning ordinances is clearly a legislative rather tha n judicial function. See Horizon Concepts, Inc. v. City of Balch Springs , 789 F.2d 1165, 1167 (5th Cir. 1986). Similarly, the Supreme Court of Arkansas has held that "th e
amen dment

to a comprehensive zoning ordinance or a rezoning of a certain area . .

. becomes a part of the existing comprehensive ordinance and, a fortiorari, is a legislative act," Wenderoth v. City of Fort Smith , 472 S.W.2d 74, 76 (Ark. 1971), and we agree. On the oth er hand, where an appeal to an Arkansas circuit court is from an act ion applying zoning regulations rather than from an action enacting or amendin g
zon ing regulations, Arkansas courts correctly consider the action quasi-judicial i n nature. City of Jonesboro v. Vuncannon , 837 S.W.2d 286, 288 (Ark. 1992).-8-

Our review of the facts leads us to conclude that the Planning Commission' s deni al of Regina's business license application is more accurately characterized a s ju dicial rather than legislative. Clearly, the Commission did not rezone any land o r create any new zoning classifications—in fact, the Planning Commission lacks th e powe r to do either of these things, as only the governing body of the City can exercise legislati ve authority. See Ark. Code Ann. § 14-56-422. Instead, every aspect of th e Commission's decision approximated judicial rather than legislative behavior. Th e action arose when Regina's, a private party, applied for a business license to have exotic da ncing at 7900 Highway 71. In deciding to deny the application, the Plannin g Commiss ionstaff first looked at existing legal authorities and determined that unde r existing law, exotic dancing was not a listed use. In so doing, the staff necessaril y interpreted the definition of various listed uses such as "nightclub" and determined that exotic d ancing did not fall within any of them. Director of Planning Harding the n examined the various zoning classifications and determined that the use sought b y Re gina's fit most properly into the existing classification "Commercial-5-SPL-D. " Harding explained that he based his decision on "anticipated traffic and/or pedestria n
mo vements associated with [the proposed use] and other characteristics relative to the impact to surrounding propert y." (Jt. App. at 319.) Because the land at 7900 Highway 71 was not zoned for SPL-D uses, Director Harding denied Regina's application. The full Planning Commission then considered "the nature of the proposed use and it s compatibility with uses permitted in the zones for which the use [was] proposed," Fort Smith Mun. Code § 27-97(4), and unanimously affirmed Harding's decision denyin g Regin a's application. In short, the Commission's action was much more akin to th e business of courts than the business of legislatures, and accordingly, we conclude that the initial proceeding from which the state court appeal was taken was itself judicial in nature.
In addition to being judicial in nature, Younger

requires that the state proceeding must be ongoing at th e time the district court enters its order regarding abstention. See Wiener v. County of San Diego , 23 F.3d 263, 266 (9th Cir. 1994) (in consideringIn fact, Regina's state proceedings are still "ongoing." Although Regina's state 4 act ionwas dismissed by the state trial court on November 20, 1997, Regina's ha s appealed the dismissal. Because the state proceedings have not concluded, Regina's arg ument that the district court erred in "continuing to abstain" under Younger onc e the state proceedings had concluded ( see Appellant's Br. at 30-40) is premature.
-9- wh ether a state proceeding is ongoing, federal court should look at "the status of th e state court proceeding at the time of the district court's decision r ather than on its current status on appeal"). It is undisputed that the state action was ongoing at that time. 4 Accordingly, we find that the first of the Middlesexcriteria is satisfied, i.e., that the state proceeding is both judicial and ongoing.

The other two Middlesex criteria are clearly satisfied. Regarding the second of the Middl esex criteria, it is well-established that for abstention purposes, th e enforcem ent

and application of zoning ordinances and land use regulations is a n important state and local interest. See Huffman , 420 U.S. at 595- 605, (civil enforcement of nuisance law) ; Sinclair Oil Corp. v. County of Santa Barbara , 96 F.3d 401, 409 (9th Cir. 1996) (" land use planning is a sensitive area of social policy" which federal courts typ ically ought not enter), cert. denied , 118 S. Ct. 1386 (1998); Pomponio v. Fauquier County Bd. of Sup ervisors , 21 F.3d 1319, 1327 (4th Cir. 1994) (en banc) ("[S]tate and local zoning and land use law is particularly the province of the State and . . . federa l courts should be wary of intervening in that are a in the ordinary case . . . [because] [w]e can conceive of few matters of public concern more substant ial than zoning and land use laws"); Izzo v. Borough of River Edge , 843 F.2d 765, 769 (3d Cir.1988) ("We share .

. . the federal judiciary's traditional respect for local administration and control of land use regulation. Federal courts have expressly dis avowed any desire to sit as a statewide board o f zoning appeals hearing challenges to municipalities . . . . Land use polic y custo marily has been considered . . . an area in which the tenets of federalism ar e particularly strong.").Although Regina's argues that the Planning Com mission lacked the competence 5 to consider Regina's federal Constitutional arguments, it is undisputed that Regina' s made such arguments to the Planning Commission. ( See Jt. App. at 385 ("Firs t Amendment . . . gives [Regina's] the same right to operate within our city limits.").)
-10- Regarding the third Middlesex criterion, Regina's clearly could have raised, and in fact initially did raise, its federal constitutional claims before the state court. We need not reach the question of whether the planning commission was competent to addres s Regina' s constitutional arguments, because it is sufficient for Younger purposes "tha t constitutional claims may be raised in state-court judicial review of the administrativ e proceedin g." Ohio Civil Rights Comm'n , 477 U.S. at 629. Regina's does not contest 5 tha t it had the power to bring a separate count alleging federal civil rights violations in its stat e court complaint. In fact, Regina's original complaint did allege such federa l vio lations, but Regina's subsequently amended the complaint to remove all references to its federal claims. This move makes clear that Regina's made a conscious decisio n not to bring a section 1983 claim in its state action. As the Supreme Court has noted, "when a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that st ate procedures will afford an adequate remedy." Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 15 (1987). Regina's must at least attempt to raise its federal claims in state court before we will consider its argument that it is impossible to do so.

Thus , we hold that the district court correctly determined that all three of th e Middlesexcriteria are

present. Additionally, we find that none of the exceptions to the Younger doctrine apply. In particular, Regina's has failed to convince us that the zoning ordinance is "flagrantly and patently violative of express constitutional prohibitions i n every clause, sentence and paragraph, and in whatever manner and against whomever

an ef fort might be made to apply it." Huffman , 420 U.S. at 611; see Middlesex , 45 7 U.S. at 435. Accordingly, we find no abuse of discretion in the district-11-

court' s decision to abstain under Younger

. See Fuller , 76 F.3d at 959 (standard o f review).

III.
Having decided that abstention under Younger was appropriate, we must nex t address R egina's argument that the district court erred in dismissing the action with prejudice. In general, the Younger ab stention doctrine "directs federal courts to abstain from grant ing injunctive or declaratory relief that would interfere with pending judicial proceedings ." Martinez v. Newport Beach City , 125 F.3d 777, 781 (9th Cir. 1997 ) (citing Y ounger , 401 U.S. at 40-41) (emphasis added). In such cases, " Younger v

. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts." Gibson v. Berryhill , 411 U.S. 564, 577 (1973) (a § 1983 case involving only injunctive relief, and not damages); see also Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 731 (1996) (noting that under Supreme Cour t precedents, "federal courts have the power to dismiss or remand cases based on abste ntionprinciples only where the relief being sought is equitable or otherwis e discretionary").
In cases where damages are sought in the federal suit, the Supreme C ourt instructs that traditional abstention p rinciples generally require a stay as the appropriate mode of abstention:

In th ose cases in which we have applied traditional abstention principle s to damages actions, we have only permitted a federal court to withhol d action un til the state proceedings have concluded, that is, we hav e permitted federal courts applying abstention principles in damages actions to ente r a stay, but we have not permitted them to dismiss the actio n altogether.-12-

Quac kenbush , 517 U.S. at 730 (internal quotations and citations omitted). The Court in Qu ackenbush noted one exception, and thus preserved the limited holding of Fai r Assessment in Real Estate Ass'n, Inc. v. McNary , 454 U.S. 10 0 (1981), where the Court alloweda dismissal on abstention principles of a section 1983 damages case, because the award of damages would have first required a declaration that a sta te tax scheme was unconstitutional. Id

. at 719; see also , Amerson v. State of Iowa , 94 F.3d 510, 513 (8th C i r. 1996) (affirming the dismissal of a § 1983 claim for damages where any award of damages first required a discretionary declaration that a state court termination o f parental rights was unconstitutional), cert. deni ed , 117 S. Ct. 696 (1997). Our court has recently written that when abstention under Younger is merit ed, "'so long as a possibility of re turn to federal court remains, a stay rather than a dismissal is the preferred mod e of abste ntion.'" Fuller , 76 F.3d at 960-61 (quoting International Ass'n of Entrepreneurs v. Angoff , 58 F.3d 1266, 1271 ( 8th Cir. 1995), cert. denied , 516 U.S. 1072 (1996)). In Fulle r , we affirmed the district court's decision to abstain under Younger , but w e vacated its decision to do so viadismissal, and we remanded the case to th e district court for entry of a stay. See 76 F.3d at 960-61.

In this section 1983 case, Regina's requested monetary damages in addition t o injunctive relief. The present case does not fall within the very limited holding of Fair Assessment

because an award of damages would not require us first to declar e unconstitutional a state stat ute or to overturn a state court judgment on a matter of state policy. See Amerson , 94 F.3d at 513. Therefore, dismissal of the action is no t permitt ed, and precedents require that we stay this action for damages. We vacate the dis missal and remand for the entry of a stay pending the final resolution of the stat e litigation.

IV.
According ly, we vacate the district court's dismissal and remand to the distric t court fo r the entry of a stay. Once the proceedings related to Regina's appeal from the-13-

Planning Commis sion's decision have reached their final denouement, the district court should lift its stay and proceed with the consideration of Regina's federal claims on the merits.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.