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.

*

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Submitted: May 14, 1998

 Filed: December 14, 1998 

___________
The Younger abstention doctrine, which has its roots in Younger v. Harris, 401 1

U.S. 37 (1971), directs federal courts to abstain from accepting jurisdiction in cases

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 and

federalism. See American Nat'l Bank v. Parkman, 702 F. Supp. 168, 170 (N.D. Ill.

1988). 

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Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

___________

HANSEN, Circuit Judge.

Night Clubs, Inc., doing business as Regina's House of Dolls II (Regina's),

appeals from the district court's dismissal with prejudice of its federal civil rights

action. Regina's argues that the district court erred in abstaining under the Younger

doctrine, and that even if Younger abstention was appropriate, dismissal with

1

prejudice was not. We affirm the district court's decision to abstain pursuant to

Younger, but we vacate the dismissal and remand for the entry of a stay. We grant

both parties' motions to supplement the record.

I.

Regina's leases certain property located at 7900 Highway 71 in Fort Smith,

Arkansas. The leased property is zoned as "Commercial-5," a designation which

allows Regina's to engage in "retail uses that serve the motoring public" and are

"characterized by a high level of vehicular activity." Fort Smith Mun. Code § 27-180.

On March 20, 1997, Regina's filed a Business Registration Application with the City

of Fort Smith (the City), requesting permission to open a nightclub on the property.

Because nightclubs are listed as allowable on land zoned as Commercial-5, see Fort

Smith Mun. Code § 27-106, the Fort Smith Planning Commission approved the

application. Less than two weeks later, on April 1, 1997, Regina's filed a second
The zoning ordinance is reproduced at pages 332-357 of the joint appendix.

2

Section 27-106 of the ordinance is a schedule listing various commercial entertainment

uses and noting their zoning classifications. Among these is "dance halls, night clubs,

or discotheques," but no listed use mentions nude or exotic dancing or any form of

"adult" entertainment. The ordinance defines "dance halls, night clubs, or

discotheques" to mean "an establishment whose primary activity is the provision of

facilities for dancing and live entertainment or amplified music. Such establishment

may or may not provide on-premises consumption of alcoholic beverage." Fort Smith

Mun. Code § 27-2.

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application, this time requesting permission to open an exotic (i.e., nude) dancing

facility at the same location. 

The staff at the Planning Commission determined that exotic dancing was not

a "listed commercial entertainment use" within the meaning of sections 27-96 and 27-

106 of the zoning ordinance. Pursuant to section 27-97 of the zoning ordinance, the 2

matter was referred to William W. Harding, the Director of Planning, for "an

administrative decision as to the appropriate zones" in which nude dancing, an unlisted

use, would be allowed. Before rendering a decision, Harding consulted with the City

Attorney, who informed Harding that a total ban would probably not survive a court

challenge. (Jt. App. at 502.) Harding determined that nude dancing would be

permissible only in property designated as Commercial-5-SPL-D, a zoning

classification reserved for uses serving "the motoring public" which "are characterized

by a higher level of vehicular 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.) Harding explained his decision

in the following way in his letter to Regina Capps, owner of Regina's:

As outlined within the procedures of [section 27-97,] in my capacity of

[sic] Director of Planning I have made an administrative decision that

exotic dancing facilities and adult oriented businesses shall be assigned

to the Commercial-5-SPL-D zoning district. This decision is made as the
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four Commercial-5 special use zones are categorized by virtue of the use

intensities within the respective categories. Intensities are evaluated on

the basis of anticipated traffic and/or pedestrian movements associated

with a particular use and other characteristics relative to the impact to

surrounding property.

(Jt. App. at 319.) Harding went on to explain that because the property at 7900

Highway 71 was zoned Commercial-5, the property did not qualify for the intended

use. Accordingly, Harding informed Capps that the application for a business license

had been denied. (Id.) 

Regina's appealed Harding's decision to the full Planning Commission. See Fort

Smith 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 permitted

in the zones for which the use is proposed" before it rendered its decision.

Accordingly, the Commission held a public hearing, at which it solicited arguments

from counsel and comments from citizens in attendance. 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 discussion concluded, the Commission voted unanimously to affirm Harding's

decision denying Regina's application.

Pursuant to Fort Smith Municipal Code section 27-97(5) and Arkansas Code

Annotated section 14-56-425 (1987), Regina's filed a lawsuit in Sebastian County

Circuit Court for review of the Planning Commission's decision. This suit was filed

on June 12, 1997. The original complaint alleged federal constitutional violations in

addition to state law claims, but Regina's voluntarily amended the complaint and

eliminated the federal constitutional claims. On October 15, 1997, the Sebastian

County Circuit Court ruled that Regina's had failed to perfect its appeal from the

Planning 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's
We refer to the defendants collectively as "the City" throughout. 3

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perfection rules are unconstitutionally vague. This appeal was pending before the

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

federal district court, naming as defendants the City of Fort Smith, various members

of the Planning Commission, and the Planning Commission itself. Regina's federal

3

complaint alleges violations of its First Amendment rights and requests monetary

damages in addition to injunctive relief. On August 6, 1997, the City filed a motion

to dismiss Regina's federal suit, arguing that the district court should abstain from

accepting jurisdiction 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 was 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, dismissal with prejudice was

inappropriate.

II.

 The Supreme Court recently affirmed that federal courts "'have no more right

to decline the exercise of jurisdiction which is given, than to usurp that which is not

given,'" and that "'[t]he one or the other would be treason to the Constitution.'" New

Orleans Pub. Serv., Inc. v. New 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 constitutionally

permissible bounds." Id. at 359. The Court stressed in NOPSI that the federal courts'

"virtually unflagging" duty to exercise jurisdiction "does not eliminate . . . the federal
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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 relief predates the enactment of the statutes defining federal jurisdiction, and the

Supreme Court has therefore interpreted the jurisdictional statutes as preserving this

traditional discretion in the federal courts. See id. The court has formulated various

"abstention" doctrines, which are not "rigid pigeonholes into which federal courts must

try to fit cases," id. (internal quotations omitted), but rather classes of cases in which

federal courts may properly exercise their traditional discretion to withhold equitable

or quasi-equitable forms of relief. 

In Younger, the Supreme Court held that federal courts may not enjoin pending

state court criminal proceedings except in very unusual situations. The Younger

doctrine has since been expanded to prohibit federal courts from interfering in certain

pending state civil cases, see Huffman v. Pursue, Ltd. 420 U.S. 592, 603-07 (1975),

as well 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 State Bar Ass'n,

457 U.S. 423, 431-32 (1982). 

There are essentially three issues that must be addressed in determining whether

to invoke the Younger abstention doctrine: (1) whether the action complained of

constitutes an ongoing state judicial proceeding; (2) whether the proceedings implicate

important state interests; and (3) whether there is an adequate opportunity in the state

proceedings to raise constitutional challenges. See Middlesex , 457 U.S. at 432. If all

three questions are answered affirmatively, a federal court should abstain unless it

detects "bad faith, harassment, or some extraordinary circumstance that would make

abstention inappropriate." Id. at 435. 

We review the district court's decision to abstain under Younger for abuse of

discretion. Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996). Central to our review
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is the question of whether the district court properly applied the three Middlesex

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 requires abstention in deference to a state

judicial proceeding reviewing legislative or executive action. Such a broad abstention

requirement would make a mockery of the rule that only exceptional circumstances

justify a federal court's refusal to decide a case in deference to the States."). The

Supreme Court has described the distinction between judicial proceedings and

legislative proceedings as follows:

A judicial inquiry investigates, declares and enforces liabilities as they

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 the

future and changes existing conditions by making a new rule to be

applied thereafter to all or some part of those subject to its power. 

491 U.S. at 370-71 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226

(1908) (Holmes, J.)).

The promulgation of zoning ordinances is clearly a legislative rather than

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 "the

amendment 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 other hand, where an appeal to an Arkansas circuit court is from an

action applying zoning regulations rather than from an action enacting or amending

zoning regulations, Arkansas courts correctly consider the action quasi-judicial in

nature. City of Jonesboro v. Vuncannon, 837 S.W.2d 286, 288 (Ark. 1992).
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Our review of the facts leads us to conclude that the Planning Commission's

denial of Regina's business license application is more accurately characterized as

judicial rather than legislative. Clearly, the Commission did not rezone any land or

create any new zoning classifications—in fact, the Planning Commission lacks the

power to do either of these things, as only the governing body of the City can exercise

legislative authority. See Ark. Code Ann. § 14-56-422. Instead, every aspect of the

Commission's decision approximated judicial rather than legislative behavior. The

action arose when Regina's, a private party, applied for a business license to have exotic

dancing at 7900 Highway 71. In deciding to deny the application, the Planning

Commission staff first looked at existing legal authorities and determined that under

existing law, exotic dancing was not a listed use. In so doing, the staff necessarily

interpreted the definition of various listed uses such as "nightclub" and determined that

exotic dancing did not fall within any of them. Director of Planning Harding then

examined the various zoning classifications and determined that the use sought by

Regina's fit most properly into the existing classification "Commercial-5-SPL-D."

Harding explained that he based his decision on "anticipated traffic and/or pedestrian

movements associated with [the proposed use] and other characteristics relative to the

impact to surrounding property." (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 its

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 denying

Regina's application. In short, the Commission's action was much more akin to the

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 the 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 considering
In fact, Regina's state proceedings are still "ongoing." Although Regina's state 4

action was dismissed by the state trial court on November 20, 1997, Regina's has

appealed the dismissal. Because the state proceedings have not concluded, Regina's

argument that the district court erred in "continuing to abstain" under Younger once

the state proceedings had concluded (see Appellant's Br. at 30-40) is premature.

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whether a state proceeding is ongoing, federal court should look at "the status of the

state court proceeding at the time of the district court's decision rather 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 Middlesex criteria 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 Middlesex criteria, it is well-established that for abstention purposes, the

enforcement and application of zoning ordinances and land use regulations is an

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

typically ought not enter), cert. denied, 118 S. Ct. 1386 (1998); Pomponio v. Fauquier

County Bd. of Supervisors, 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 . . . federal

courts should be wary of intervening in that area in the ordinary case . . . [because] [w]e

can conceive of few matters of public concern more substantial 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 disavowed any desire to sit as a statewide

board of zoning appeals hearing challenges to municipalities . . . . Land use policy

customarily has been considered . . . an area in which the tenets of federalism are

particularly strong.").
Although Regina's argues that the Planning Commission 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 ("First

Amendment . . . gives [Regina's] the same right to operate within our city limits.").)

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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 address

Regina's constitutional arguments, because it is sufficient for Younger purposes "that

constitutional claims may be raised in state-court judicial review of the administrative

proceeding." Ohio Civil Rights Comm'n, 477 U.S. at 629. Regina's does not contest 5

that it had the power to bring a separate count alleging federal civil rights violations in

its state court complaint. In fact, Regina's original complaint did allege such federal

violations, 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 decision

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 state 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 the

Middlesex criteria 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 in

every clause, sentence and paragraph, and in whatever manner and against whomever

an effort might be made to apply it." Huffman, 420 U.S. at 611; see Middlesex , 457

U.S. at 435. Accordingly, we find no abuse of discretion in the district
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court's decision to abstain under Younger. See Fuller, 76 F.3d at 959 (standard of

review).

III.

Having decided that abstention under Younger was appropriate, we must next

address Regina's argument that the district court erred in dismissing the action with

prejudice. In general, the Younger abstention doctrine "directs federal courts to abstain

from granting 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 Younger, 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

Court precedents, "federal courts have the power to dismiss or remand cases based on

abstention principles only where the relief being sought is equitable or otherwise

discretionary"). 

In cases where damages are sought in the federal suit, the Supreme Court instructs

that traditional abstention principles generally require a stay as the appropriate mode of

abstention:

In those cases in which we have applied traditional abstention principles

to damages actions, we have only permitted a federal court to withhold

action until the state proceedings have concluded, that is, we have

permitted federal courts applying abstention principles in damages actions

to enter a stay, but we have not permitted them to dismiss the action

altogether.
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Quackenbush, 517 U.S. at 730 (internal quotations and citations omitted). The Court

in Quackenbush noted one exception, and thus preserved the limited holding of Fair

Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100 (1981), where the Court

allowed a dismissal on abstention principles of a section 1983 damages case, because

the award of damages would have first required a declaration that a state tax scheme was

unconstitutional. Id. at 719; see also, Amerson v. State of Iowa, 94 F.3d 510, 513 (8th

Cir. 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 of

parental rights was unconstitutional), cert. denied, 117 S. Ct. 696 (1997). Our court has

recently written that when abstention under Younger is merited, "'so long as a possibility

of return to federal court remains, a stay rather than a dismissal is the preferred mode

of abstention.'" 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

Fuller, we affirmed the district court's decision to abstain under Younger, but we

vacated its decision to do so via dismissal, and we remanded the case to the 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 to

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 declare

unconstitutional a state statute 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 not

permitted, and precedents require that we stay this action for damages. We vacate the

dismissal and remand for the entry of a stay pending the final resolution of the state

litigation. 

IV.

Accordingly, we vacate the district court's dismissal and remand to the district

court for the entry of a stay. Once the proceedings related to Regina's appeal from the
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Planning Commission'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.