# Petition for Writ of Certiorari — Fields v. Rockdale County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2339%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 984 ## Text D\ UTP Supreme Court, ts, 86 ~2 41 \ He RIDE D AUG 18 1986 NO. evenrnen ae JOSEPH F. SPANIOL, JR, i In The Supreme Court of the United States October Term, 1986 fal Vv Ann P. Fields and Gerald Fields, Individually ; and Life For God’s Stray Animals, Inc., Petitioners, Rockdale County, Georgia; et al., Respondents. fa Vv PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIKCUIT ty. Vv KATHLEEN KESSLER Carr & KESSLER 3384 Peachtree Road, N.E. Suite 250 Atlanta, Georgia 30326 (404) 233-5008 ABRAHAM A, SHARONY 4721 Chamblee-Dunwoody Road Suite 302 Atlanta, Georgia 30338 (404) 395-6576 Counsel for Petitioners COCKLE LAW PRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342-2831 QUESTION PRESENTED Whether the abstention doctrine should be so far ex- tended as to require staie constitutional due process and equal protection issues to be litigated in state forums be- fore seeking relief in federal District Courts under similar federal due process and equal protection provisions. il PARTIES The parties to this petition are Ann P. Fields, Gerald Fields, operators of the animal shelter Life For God’s Stray Animals, Inc.; and Life For God’s Stray Animals, Inc., a charitable, non-profit animal shelter located in Rock- dale County, Georgia, Petitioners. The Respondents are Rockdale County, Georgia; C.S. Smith, Individually and as Chairman, Rockdale County Board of Commissioners; and Randy Mills, Individually and as Director, Rockdale County Planning and Develop- ment Department. ili TABLE OF CONTENTS Page ok et 8 gh | | nr | a Rai te eae ii TABLE OF AUTHORITIES 00S iv ramen pew ee i STATUTORY PROVISION AND ORDINANCE IN- VOLVED REASONS FOR GRANTING THE WRIT .WW.. 8 The Circuit Court’s decision conflicts with the de- cisions of the United States Supreme Court: The Supreme Court expressly disallowed absten- tion where the only ‘‘state law’’ issue is the appli- cation of state constitutional due process and equal protection provisions similar to the federal constitution .... 8 CONCLUSION . 21 Appendix, Part I, Cireuit Court Decision ................... App. 1 Appendix, Part II, District Court Decision... App. 13 Appendix, Part III, Court of Appeals Judgment and Mandate SESE EL OT App. 24 Appendix, Part IV, Court of pees Order on Rehearing NaN iitelace adie b sical spnensioshghi App. 26 Appendix, Part V, Excerpts from transcript ..... App. 27 iv TABLE OF AUTHORITIES CASES Pages Avant v. Douglas Co., 243 Ga. 225, 319 S.E.2d 442 (1984) 12, 14, 20 Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975) 12,14 Chicago v. Atchison, Topeka & Santa Fe Railroad Co., 357 U.S. 77, 78 S.Ct. 1063 (1958) .... 14 Duncan v. Poythress, 657 F.2d 691 (former 5th Cir. 1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647, cert. dismissed, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982) ____. 13, 20 Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114 (1926) ... 19 Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) _.. 12, 14,15 Gibson v. Jackson, 578 F.2d 1045 (5th Cir.1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979). ............. eRe ee & ST Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965) 18 Harris County Commrs. Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975) —............. 9,14, 15 Hawaii Housing Authority v. Midkiff. — U.S. —, DOE Tae, Te Cele 10, 16, 18, 20 Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211 (1977), Bh Bie 8 Bre 200 e viii een 17 Life For God’s Stray Animals, Inc. v. New North Rockdale County Homeowners Association, — Ga. — (Case #42473, Feb. 26, 1986) ...................... 5, 10, 21 Life For God’s Stray Animals, Inc. v. New North Rockdale County Homeowners Association, 253 Ga. 551, 322 8.6.20 239 (1904) 5:7, 10, 11 TABLE OF AUTHORITIES—Continued Pages Middlesex County Ethics Committtee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. a Fe RARE Be COMET oe 16, 17 Miofsky v. Superior Court of the State of Cali- fornia, 103 F.2d 332 (9th Cir. 1963)... 18 Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 ge 5, Ta Aan eR en 17 Railroad Comm’n. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) 0. 18 Traughber vy. Beauchane, 760 F.2d 673 (6th Cir. 1985) 18 Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) ................. 19 Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 907, 27 L.Ed.2d 515 (1971) PERE ECE 9, 14, 21 Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) 0. 16 Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) .......... : 18 CONSTITUTIONAL PRovISIONS United States Constitution Fourteenth Amendment 0. 12 Constitution, State of Georgia Article I, Section I, Paragraph I .. 4 Article I, Section IT, Paragraph TIT ow 4 vi TABLE OF AUTHORITIES—Continued Pages STATUTES 98 U.S.C. § 1254(1) > 3 PS U.S.C. §§ 1331, BEB nee eeennennnnnneennntnnnenmnnennntnnsnnsnnit 5 98 U.S.C. § 2283 42 U.S.C. § 1983 3, 9 ORDINANCE Rockdale County Ordinance § 9-3009 .......... Si cutonacmaeale 3 AIRE en oO Vv In The Supreme Court of the United States October Term, 1986 Ann P. Fields and Gerald Fields, Individually ; and Life For God’s Stray Animals, Inc., Petitioners, e Rockdale County, Georgia; et al., Respondents. OH Vv PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT fa) Vv The Petitioners respectfully pray that a writ of cer- tiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eleventh Circuit entered in this proceeding on April 8, 1986, issued as man- date on June 4, 1986, and rehearing denied May 19, 1986. 2 OPINIONS BELOW Appendix, Part I is the opinion of the Eleventh Cir- cuit Court of Appeals vacating and remanding the opin- ion of the District Court with directions to abstain to al- low Petitioners to bring an action in state court under the Georgia constitution’s equal protection and due process clauses. Appendix, Part IT is the opinion of the Dis«rict Court granting a preliminary injunction and noting a reasonable likelihood that Petitioners would prevail on the issue of the unconstitutionality of the Rockdale County kennel ordinance, which was written to apply to and exclude from the county Petitioner’s shelter and no other kennel in Rockdale County. Appendix, Part ITI is the judgment of the Court of Appeals dated April 8, 1986 and issued as mandate on June 4, 1986. Appendix, Part IV is the Eleventh Circuit’s order dated May 19, 1986, denying Petitioners a rehearing of the abstention issue. Appendix, Part V is excerpts from the transcript on the hearing for the preliminary injunction before the District Court. ray —— JURISDICTION The judgment of the United States Court of Appeals for the Eleventh Circuit was entered April 8, 1986, and mandate issued June 4, 1986. App. III. Petitioners-Ap- pellants’ motion for rehearing was denied on May 19, 1986. 3 App. IV. This petition was filed within 90 days of the order of the Court of Appeals denying rehearing. The jurisdiction of this Honorable Court is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISION, ROCKDALE COUNTY ORDINANCE AND GEORGIA CONSTITUTIONAL PROVISION INVOLVED 42 U.S.C. § 1983, pertinent part: ‘*Every person who, under color of any ... ordinance ... Of any State... subjects, or causes to be subjected, any citizen of the United States ... to the depriva- tion of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity. or other proper proceeding for redress. . .”’ Rockdale County Ordinance, § 9-3009. Maximum size of kennels. SECTION I ‘‘(a) A kennel is hereby defined to include the keeping of dogs and/or cats for commercial, non- commercial or charitable purposes at or on a particu- lar location or site where said dogs or cats are re- strained or confined within a fence, building, struc- ture or other enclosure. ‘““(b) It shall be unlawful for any person, firm, corporation, unincorporated association, partnership, joint venture, charitable organization or other legal entity to maintain or operate a kennel within Rockdale County in which the number of dogs exceeds 150 in number, or in which the number of cats exceeds 50 in number. ‘‘(ec) In determining the population limits of a kennel, joint ownership or joint control of separate kennel sites or locations by the same person, firm, 4 corporation, unincorporated association, partnership, joint venture, charitable organization or other legal entity shall cause all dogs and/or cats involved in such jointly owned or jointly controlled separate kennel sites or locations to be added together and counted as one kennel — if the kennel sites or locations are located within one nautical mile of each other. ‘‘(d) This ordinance is intended to prohibit the concentration of dogs and cats so that kennel opera- tions shall not disturb the peace, tranquility, and ser- enity of the various neighborhoods in this County and further is intended to protect the public health, safety and welfare relative to various diseases originating with large concentrations of animals. This ordinance shall be liberally construed to accomplish the forego- ing intent and purposes. SECTION 2 ‘“‘This Ordinance is not intended to repeal or to modify the zoning laws or regulatory ordinances of Rockdale County relative to kennels and dogs or cats but as supplementary thereto. SECTION 3 ‘‘This Ordinance shall be in force and take effect upon adoption. ‘¢Adopted this 14th September, 1984.”’ Constitution, State of Georgia: Article I, Section I, Paragraph I: ‘‘No person shall be deprived of life, liberty, or prop- erty, except by due process of law.”’ Article I, Section I], Paragraph III: “Protection to person and property is the paramount duty of government, and shall be impartial and com- plete.” o oc RS EL TAIT LS CRIM OS OT a SPN STATEMENT OF THE CASE This controversy arises over a Rockdale County or- dinance to limit the number of animals per kennel to 150 dogs and 50 cats, regardless of the size of the tract of land containing the animals. Petitioners’ animal shelter, Life for God’s Stray Animals, Inc., contains approximately 1200 animals which they planned to move to a new shelter of 220 acres. The ordinance was created, drafted and passed within 10 days of a public announcement that Life for God’s Stray Animals, Inc. intended to purchase 220 acres next to the city/eounty dump on Miller Bottom Road in Rock- dale County as a new site for their animals. App. 3, 28. The shelter had been declared a nuisance in state court at their old site (7.5 acres on Farmer Road), and ordered to cease operations. The purchase of 220 acres on Miller Bottom Road was the part of Petitioners’ “urgent efforts to establish their kennel in a new location,” in order to comply with the court’s order to move.! App. 20. Petitioners filed a complaint in the District Court for the Northern District of Georgia to have the kennel ordinance declared unconstitutional based on federal ques- tion jurisdiction and the Civil Rights statutes (28 U.S.C. §§ 1331,1343). They alleged that the ordinance was a de- nial of equal protection of the laws because only their animal shelter was singled out for exclusion from the county with no ‘‘rational basis.’’ They also alleged denial ‘Life For God's Stray Animals, Inc. v. New North Rockdale County Homeowners Assoc. (two cases), — Ga. -—- (Case #42473, Feb. 26, 1986) and 253 Ga. 551, 322 S.E.2d 239 (1984). of procedural due process of law as the ordinance pre- sumed that any animals in excess of the arbitrary limita- tions contained in the ordinance would amount to a nui- sance per se, without allowance for any evidentiary hear- ing. App. 18-20. The Chairman of the Rockdale County Commission testified that the new 150/50 kennel ordinance applied only to the new Miller Bottom Road site; no other existing kennels came under this ordinance because all other exist- ing kennels could be “grandfathered in”; as a result of a survey conducted, no other kennel in Rockdale County was subject to 150/50 animal limitations; that all exist- ing kennels even had room to grow. App. 29, 30, 32. “The intent to single out plaintiffs is evident both from the testimony and from the argument of the county’s counsel; as counsel said, ‘this ordinance addresses itself to the Fields.’’’ App. 19. Because of the ordinance’s presumptious and pre- determination of nuisance per se if a kennel exceeds the 150/50 animal limitation. Rockdale County officials re- fused the Fields all necessary development permits to allow the Fields to move the animals to the new site at Miller Bottom Road. App. 31-32. Thus, as late as the hearings in this ease in February and March of 1980, the Fields were unable to get permits to construct a new shelter, move the animals, or abate the nuisance declared by the Rockdale Superior Court against the Farmer Road site. App. 31. The nuisance and setback judgments of the Rockdale County Superior Court were both decided prior to the 7 purchase of the Miller Bottom Road site and prior to the passage of the restrictive kennel ordinance.?, App. 17, 19. None of the state court litigation applies to the new kennel ordinance. None of the state court litigation ap- plies to the Fields’ use of the Miller Bottom Road prop- erty. The state court has not been inhibited by the federal court action in enforcing its judgments.3 The shelter and the Fields sought and received tem- porary relief in the United States District Court. The trial judge granted a preliminary injunction against the wean of the kennel ordinance only (App. 17), noting that there was a reasonable likelihood that the Fields would ultimately prevail in their federal constitu- tional challenge (on due process and equal protection grounds). The District Court also discussed the anti-injunction Statute (28 U.S.C. § 2283) as it applied to the Georgia court litigation involving the nuisance and setback issues at the Farmer Road site. App. 15-16. The District Court very carefully distinguished the jurisdiction of the state court action (Farmer Road nuisance and setback issues) with the federal court action (constitutionality of the ken- nel ordinance applicable only to the Miller Bottom Road property). Applying the anti-injunction statute, the Dis- trict Court very carefully refused to enter into the areas of state court litigation. App. 16-17. Having limited itself to the issue of the constitu- tionality of the kennel ordinance and the Fields’ prayer See Life For God’s Stray Animals, Inc. v. New North Rock- dale Co. Homeowners Assoc., 253 Ga. 551, 322 S.E.2d 239 (1984). 3See cases cited at n.1. 8 for injunctive relief thereon, the District Court found “a reasonable likelihood that the Fields would ultimately prevail” on their federal constitutional questions against the kennel ordinance, and that a preliminary injunction was warranted. App. 20. The Eleventh Circuit, however, vacated and remanded with instructions to the District Court to abstain from deciding the constitutionality of the kennel ordinance, and ‘‘to afford the Fields a reasonable opportunity to bring their claims in state court.’’ App. 12. The panel denied Petitioners’ request for a rehearing. App. 26. onal Vv REASONS FOR GRANTING THE WRIT CIRCUIT COURT’S DECISION CONFLICTS WITH DECISIONS OF THE SUPREME COURT. The Supreme Court expressly disallowed absen- tion where the only ‘‘state law’’ issue is the appli- cation of state constitutional due process and equal protection provisions similar to the federal constitution. The Eleventh Circuit’s decision requires plaintiffs seeking redress from unconstitutional ordinances to first exhaust all possible state constitutional issues. Under the Eleventh Circuit’s requirements, litigants must first ex- haust even due process and equal protection issues under a state constitutional provision similar to the federal con- stitution before seeking constitutional relief in the federal forums. Never before has the abstention doctrine been ex- tended this far. Supreme Court decisions have admon- ished against such an extension: 9 ‘‘In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507 (1971), we declined to order abstention where the federal due process was not complicated by an unre- solved state-law question, even though the plaintiffs might have sought relief under a similar provision of the state constitution.’’ Harris County Commrs. Court v. Moore, 420 U.S. 77, 88, n.14, 95 S.Ct. 870, 877, n.14 (1975). >) AUTHORITIES MISAPPLIED The case cited by the Eleventh Circuit as authority for abstaining can be distinguished from the Fields’ situa- tion. In Gibson v. Jackson, 578 F.2d 1045 (Sth Cir. 1978), cert. demied, 439 U.S. 1119, 99 S.Ct. 1028 (1979), the plain- tiff-prisoner ‘‘filed a state habeas corpus action alleging that his federal constitutional rights had been violated in his earlier criminal trial,’’ and that the state court was re- quired te appoint an attorney for him, in addition to allot- ting expenses for trial preparation. Id. p. 1046. He then filed a lawsuit under 42 U.S.C. § 1983 in federal court to decide the same issue of whether the state was required to appoint an attorney and provide trial funds. The federal court abstained because the issue may be moot: “The state trial court or state supreme court may deny petitioner’s requests for assistance but nonethe- less find his substantive claims meritorius, hence mooting the procedural isnes [before the federal court]. Moreover, the issue here raised may be moot in the literal sense: the petitioner is presently repre- sented by counsel in state court and that able lawyer, who appeared on petitioner’s behalf before us, may | 10 continue in the task has assumed pro-bono. The like- lihood that the issues now presented will remain for decision when the state proceeding is concluded is so uncertain at this moment that an immediate decision borders on being advisory in nature.’’ Id., p. 1050. The Gibson case differs markedly from the Fields’ lawsuit because: Gibson included in his earlier-filed state court case the same issue he brought to the federal court. No state liti- gation in the Fields’ case addresses the unconstitutionality of the kennel ordinance.* App. i7. No pending state court action can moot the constitu- tional issue presented in the Fields’ case. The state court action involved nuisance and setback issues at the Farmer Road property. The state issues were already on appeal before the new kennel ordinance was passed. Further, the pendency of the federal claim has in no way hindered the enforcement of the state court orders. Life for God’s Stray Animals, Inc. v. New North Rockdale County Home- owners Association (two cases), — Ga. — (Case #42473, Feb. 26, 1986) and 253 Ga. 551, 322 S.F.2d 289 (1984). The state eourt action involves separate property, separate ordinances, separate legal issues. In Gibson, the prisoner’s constitutional claim—right to effective assistance of counsel—was directly related to his trial on the state criminal accusations. Indeed, the ac- cused’s constitutional issues arose out of the trial on the state criminal charges. In the Fields’ case, the issue of the kennel ordinance arose out of the shelter’s purchase of 4”Younger abstention is not a bar to federal court action when state judicial proceedings have not themselves commenced [cites] . . .” Hawaii Housing Authority v. Midkiff, —- U.S. —, 104 S.Ct. 2321, 2328 (1984). 11 new property which was in no way associated with the state court action (nuisance and setback issue) attached to the old Farmer Road site. In Gibson, the court pointed to opportunities to avoid through mootness the constitutional issue entirely. In the Fields’ case, the abstention is ordered to give the Fields a chance to litigate the same due process and equal protec- tion issues in the state court under similar state constitu- tional provisions. Even the Circuit Court does not see the constitutional issues as going away—only relitigated in state court. App. 12. The Gibson itself case is authority for not abstaining under these circumstances: ‘*Hence if the state statute is clear on its face, and the only basis for abstention is that it might violate the state constitution, there may be insufficient basis for abstention. [Cites] . . . Here, however, there is a ‘realistic promise of avoiding constitutional issues’ [cite] for a number of reasons other than the state court providing relief on the basis of the state consti- tution.’’ Zd., p. 1051, n.24. Unlike Gibson, resolution of the pending state issues in the Fields’ case (i.e., removal of the animals from Farmer Road to comply with state court’s nuisance and setback orders) will not resolve or moot the kennel ordi- nance challenge. The shelter cannot stay at Farmer Road5 *“[T]he court [Rockdale County Superior Court] entered another order permanently enjoining the appellants’ operation of the animals shelter as a nuisance.” Life For God’s Stray Ani- mals, Inc. v. New North Rockdale Co. Homeowners Assoc., 253 Ga. 551 (1984) [emphasis added]. The shelter has been ordered to cease operation at Farmer Road, not merely rearrange to com- ply with setback requirements. 12 and thereby avoid the application of the kfnnel/ordimance through the county’s grandfather provi The only other property available for the shelter Zo-@ccupy is Miller Bottom Road, which is subject to the provisions of the ken- nel ordinance. App. 28, 29. The Circuit Court also cites as authority Examining Board v. Flores De Otero, 426 U.S. 572, 96 S.Ct. 2264 (1976), which holds that abstention is not appropriate ‘‘though the plaintiffs might have sought relief under a similar provision of the state constitution.’’ Zd., p. 598. The Eleventh Circuit then agrees that the Georgia consti- tution’s due process clause ‘‘does mirror the language of the Fourteenth Amendment,’’ then says that Georgia case law ‘‘is a strain on substantive due process that extends protections beyond what federal due process alone af- fords.’’ App. 31. The Eleventh Cireuit cited the Avant and Barrett cases apparently to demonstrate ‘‘unsettled’’ state law or the intertwining of the ordinance and state case law offer- ing a specialized interpretation of the law. Avant v. Douglas Co., 253 Ga. 225, 319 S.H.2d 442 (1984) ; Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975). App. 8. But these cases demonstrate that the law is clear, not un- settled, and that the authority is not a ‘‘specialized”’ local constitutional law provision, but the Fourteenth Amend- ment to the United States Constitution. Barrett, quoted as authority in Avant, clearly cited as authority the Fourteenth Amendment to the United States Constitution, rather than the Georgia constitution (although either could have applied). App. 8. In addi- tion, the cases are all consistent in their constitutional —— 13 holdings on the zoning ordinances and consistent with the District Court’s findings on the Rockdale County kennel ordinance. What these cases demonstrate is not grounds for ab- stention, but that the case law is clear and that the due process and equal protection issues are, too. See, e.g., Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, cert dismissed, 459 U.S. 1012, 103 S.Ct. 368 (1982). In Duncan, the court de- clined to abstain in a state election issue wherein the State alleged the intertwining of state statutes and state consti- tutional provisions. The court decided that the controlling special election statute, even though never before inter- preted in the state courts, was clear on its face, and that other state statutes and state constitutional provisions did not resolve the due process issue. Therefore, absten- tion was not necessary. Further, the Eleventh Circuit erroneously assumed that substantive due process standards applied, when Peti- tioners prayed that the kennel ordinance is unconstitu- tional on procedural due process and equal protection prin- ciples—a presumption of nuisance per se of all kennels over 150 dogs and 50 cats (even on 220 acres of land) with- out opportunity to present evidence (App. 9, 31); an ordi- nance arbitrarily written to single out Petitioners’ shelter and make sure no other kennel is subject to the ordinance by polling the other kennels!’ App. 28-30. The kennel was written for a single purpose and stands by itself. The addition of other county ordinances (e.g., setback requirements) does not diminish the nuisance per se assumption written into the ordinance, nor erase the attempt to single out Petitioners’ kennel. 14 Abstention is not appropriate ‘‘where it has seemed unlikely that resolution of the state-law question would significantly affect the federal claim.’’ Chicago v. Atchi- son, Topeka & Santa Fe Railroad Co., 357 U.S. 77, 84, 78 S.Ct. 1063, 1067 (1958). The county’s attempt to integrate the Rockdale County’s book of ordinances fails to diminish the constituional issues. Further, the application of the Avant and Barrett eases, which rule unconstitutional exactly the type of con- stitutional infringement that Petitioners’ complained of, does not create ‘‘ambiguity’’ in the state law—it shows resolution and consistency. Harris, Otero and Constan- tineau® are all in accord on this issue: ‘‘we declined to or- der abstention where the federal due process claim was not complicated by an unresolved state-law question, even though the plaintiff might have sought relief under a sim- ilar provision of the state constitution.’? [Emphasis added } In Harris County Cmmrs. Court v. Moore, 420 US. 127, 96 S.Ct. 870 (1975), the Court did abstain to allow the state to resolve issues governed by specialized state consti- tutional law provisions. What was in conflict were two Texas constitutional provisions involving the tenure and removal of justices of the peace and constables, and a new statute allowing for redistricting plans which would unseat some of these judges prior to the expiration of their terms. Also, several Texas court decisions and attorney general’s 6Examining Board v. Otero, 424 U.S. 572, 96 S.Ct. 2264 (1976); Harris Co. Commrs. Court v. Moore, 420 U.S. 77, 95 S.Ct. 870 (1975); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507 (1971). 15 opinions seemed in conflict as to the proper construction of these statutes. The Harris case can be distinguished from the Fields case because the state constitutional previsions relied upon by the Eleventh Circuit was the state constitution’s due process guarantee, compared to the specialized Texas elec- tion statutes in Harris. The only state law construction in the Fields’ case are the issues of due process and equal protection, and it is these very issues that the Eleventh Cir- cuit requires Petitioners to first litigate in state court. App. 8-9. For the federal courts to require due process and equal protection claims to be first litigated under state constitutional law provisions before the federal forum will be available to them, dilutes to meaninglessness federal question jurisdiction. The opinions of this Court expressly halt the absten- tion doctrine short of requiring federal due process and equal protection issues to be first litigated in state courts: ‘‘Indeed, to hold that absention is required because [the challenged ordinance] might conflict with the cited broad and sweeping [state] constitutional provi- sions, would convert abstention from an exception into a general rule.’’ Examining Board v. Otero, 426 U.S. 595, 598, 96 S.Ct. 2264, 2279 (1976). 16 YOUNGER ABSTENTION ERRONEOUSLY APPLIED Younger! abstention does not apply in this lawsuit be- cause no pending state court lawsuit is concerned with the interpretation of the kennel ordinance. Whether state ac- tion is pending is ‘‘critical to the application of Younger.’’ C. Wright, The Law of Federal Courts 325 (1983). See Hawaii Housing Authority v. Midkiff, —— US. , 104 S.Ct. 2321, 2327-8 (1984); Middlesex County Ethics Com- mittee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 2521-22 (1982). Litigation in the state courts in this case now before the Court has concerned only the Farmer Road property and only the issues of nuisance and setback. The Georgia Supreme Court has ruled on these issues.” It would be be- yond the bounds of judicial authority for the Rockdale County trial judge to mold a decree deciding constitutional issues without any evidence on an ordinance that has not even been raised or tried within the lawsuit. Therefore, there is no ‘‘concurrent state court proceedings that pre- sent a comparable threat of inconsistent outeomes and at- tendant friction,’’ and no basis for Younger abstention. App. 17. Defendant Rockdale County officials admit that the 150/50 kennel ordinance would not apply to the Farmer Road site because of the county’s grandfather provisions. App. 33. Therefore, the court erroneously found a ‘‘pos- Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). 2See n.2 supra, for Georgia case cites. Tae Te ee 17 sibility . . . of ‘parallel proceedings’ in state and federal court’? (App. 11), because the state and federal court issues deal with separate ordinances, separate land and separate legal principles. The panel erroneously suggested that the Plaintiffs had an opportunity to present their federal claims in the state proceedings. Ap». 10. The state cases were already filed, decided by the trial judge, and on appeal before the kennel ordinance existed. See n.2, supra. Plaintiffs can hardly be said to have forfeited their opportunity to raise federal constitutional issues in federal court under these facts. Not only is there no pending state court action involv- ing the kennel ordinance, but there was no opportunity to raise the issue in state court proceedings. App. 17. On this basis, the Younger abstention authorities cited by the Eleventh Cireuit can be distinguished from the facts of this lawsuit. See, e.g., Moore v. Sims, 442 U.S. 415, 425, 99 S.Ct. 2371, 2378 (1979); Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211 (1977). Finally, in the state court litigation the homeowners sued in a private tort for nuisance and setback enforcement —hardly a ‘‘[p]roceeding necessary for the vindication of important state policies or the functioning of the state ju- dicial system.’’ Middlesex County Ethics Committee v. Gar- den State Bar Association, 457 U.S. 423, 102 S.Ct. 2515 (Chief Justice Burger’s statement of the test for ‘‘vital- ness’’). Unless ‘‘vital state interests’’ are at stake, federal district courts are not proscribed from interfering with on- going state civil proceedings when necessary to vindicate 18 federally protected civil rights. Miofsky v. Supertor Court Of The State Of California, 703 F.2d 332, 337-8 (9th Cir. 1983). See also, Hawaii Housing Authority v. Midktff, U.S. ——, 104 S.Ct. 2321, 2327-8 (1984) ; Traughber v. Beau- chane, 760 F.2d 673 (6th Cir. 1985) (private tort suit did not involve ‘‘vital state interests’’). Younger abstention is inappropriate in this lawsuit where the state action is totally unrelated to the federal ac- tion in terms of ordinances, property and legal issues, and no pending state action involves the kennel ordinance. — Vw PULLMAN ABSTENTION ERRONEOUSLY APPLIED In Railroad Comm’n. Of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the Supreme Court held that federal courts should abstain from deciding cases when difficult or unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. ‘However, federal courts need not abstain on Pullman grounds when a state statute is not ‘fairly subject to an in- terpretation which will render unnecessary’ the federal con- stitution question. See Harman v. Forssenius, 380 U.S. 528, 535, 85 S.Ct. 1177, 1182 (1965).’’ Hawai Housing Authority v. Midkiff, —— U.S. ——, 104 S.Ct. 2321, 2327 (1984). | Further, the Supreme Court has ‘‘frequently empha- sized that abstention is not to be ordered unless the statute is of uncertain nature, and is obviously susceptible of a limiting construction.’’ Zwickler v. Koota, 389 U.S. 241, 251, n.14, 88 S.Ct. 391, 397, n.14 (1967). 19 The kennel ordinance is not susceptible to a limiting construction because: (1) The ordinance has a built-in presumption of nuis- ance* that prohibits a kennel larger than the 150/50 limits from having the opportunity of proving that it ean function just like any other kennel or animal farm. The animal shel- ter is thereby denied use and enjoyment of its land that other property owners in Rockdale County enjoy without any opportunity of an evidentiary hearing; i.e., without due process of law, while the county, through development per- mits, has alternatives to protecting the public welfare. App. 33-34. See Village Of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536 (1974); Euclid v. Ambler Realty Co., 272 US. 365, 47 S.Ct. 114 (1926). (2) Testimony shows that Life For God’s Stray Ani- mals, Inc. was singled out for exclusion from the county by the ordinance—which activity was not ‘‘obviously suscepti- ble of a limiting construction.’’ No amount of legal analysis will change the fact that the ordinance’s creation was trig- gered by the announcement that the shelter intended to pur- chase 220 acres on Miller Bottom Road, or that the chair- man of the county commission ordered a poll of all kennels to make sure the ordinance would not affect them, but only affect Life For God’s Stray Animals, Inc. App. 28-30, 32. (3) When the ordinance fails in its sole stated pur- pose to limit concentrations, no amount of construction with other statutes will cure that defect: ‘‘Concentration, the suggested concern of the ordi- nance, is a function of two different factors: population 3Even the Rockdale County attorney does not adhere to the “nuisance per se” theory built into the ordinance. App. 31-32. 20 and area. The ordinance regulates population alone with no reference to, or consideration of, size of the property where animals are kept; as a consequence, the ordinance creates a restriction that is entirely irrele- vant on its face to the legislative goal. That irrelevance constitutes irrationality, and the ordinance therefore fails rationally to relate to the expressed legislative purpose [and] ... it does not substantially relate to general welfare.’’ App. 19-20. The analysis of Avant and Barrett, supra, p. 12, shows that there are no additional ‘‘difficult’’ or ‘‘unset- tled’’ questions of state law. The ordinance is not uncertain in its limitation of ani- mals and application, and it has no reasonable limiting con- struction. Therefore, /ULLMAN abstention is unneces- sary. Hawaii Housing Authority v. Midkiff, U.S. —., 104 S.Ct. 2321, 2327 (1984). Oo— DISTRICT COURT’S DISCRETION NOT CHALLENGED “Because of the complexity of factors which guide a particuiar decision on Pullman abstention, we have often held that a decision of the district court will be reversed on appeal only upon a showing of an abuse of discretion en- trusted to a trial court [Cites].’’ Duncan v. Poythress, 657 F.2d 691, 697 (former 5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S.Ct. 368 (1982). No part of the Eleventh Cireuit’s opinion cites the Dis- trict Court for abuse of discretion. Included in the testimony and the trial court’s opinion were evidence of ‘‘plaintiff’s urgent efforts to establish 21 their kennel in a new location (App. 20) to comply with nuisance findings; and the county’s ability to control ken- nels through development permits, without the necessity of limiting animals and banning the kennels altogether. App. 31, 33-34. In consideration of the totality of circumstances, in- cluding delay and costs of bringing another action, the abil- ity of the county to control Petitioners’ kennel with develop- ment permits, the immense pressure on the Fields to move from Farmer Road,’ the unconstitutionality of the ordi- nance on its face, and the fact that no suit is pending which involves the kennel ordinance or the Miller Bottom Road property, abstention seems heavily contraindicated. i) CONCLUSION Petitioners respectfully pray this Honorable Court to reverse the Circuit Court’s decision to abstain, because this decision is contrary to the Supreme Court’s doctrine as stated in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 907 (1971), and similar family of cases. Where the state constitutional due process and equal protection guarantees are similar to the federal constitu- tional provisions, the federal forum should not be closed to petitioners. Jail sentences ordered for inability to move, while the nu- merous development permits are fraught with expensive require- ments. Life For God’s Stray Animals, Inc. v. New North Rockdale County Homeowners Assoc., — Ga. — (Case #42473, Feb. 26, 1986). 22 To allow the Eleventh Circuit’s decision to remain law is a dangerous precedent, because the decision set a prece- dent which virtually closes down federal question jurisdic- tion where a parallel state constitutional provision can be found. It also abdicates federal supremacy to state’s inter- pretation of the federal constitution. Petitioners earnestly and respectfully pray for a rever- sal of the abstention decision. Respectfully submitted, ATTORNEYS FOR PETITIONERS Kathleen Kessler Abraham A. Sharony Please address all communications to: Kathleen Kessler, Esq. Carr & Kessler 3384 Peachtree Road, N.E., Suite 250 Atlanta, Georgia 30326 (404) 233 5008 St. Bar #416575 , App. 1 APPENDIX, PART I Ann P. FIELDS, et al., Plainttffs-A ppellees, v. ROCKDALE COUNTY GEORGLA, et al., Defendants—A ppellants. No. 85-8286. United States Court of Appeals, Eleventh Circuit. April 8, 1986. Landowners brought action challenging county ordin- ance regulating kennels. The United States District Court for the Northern District of Georgia, Marvin H. Shoob, J., granted preliminary injunction and county appealed. The Court of Appeals, Godbold, Chief Judge, held that absten- tion was warranted. Vacated and remanded. Appeal from the United States District Court for the Northern District of Georgia. Before GODBOLD, Chief Judge, ANDERSON, Cir- cuit Judge, ATKINS*, Senior District Judge. GODBOLD, Chief Judge: Gerald and Ann Fields, under the name ‘‘Life for God’s Stray Animals, Inc.’’ began a not-for-profit ‘‘no- kill’? animal shelter some time before 1980, operated on a * Honorable C. Clyde Atkins, Senior District Judge for the South- ern District of Florida, sitting by designation. App. 2 lot on Presidential Circle in Lakeview Estates, a mobile home park in Rockdale County, Georgia. The number of animals maintained at this site was as great as 300. The county filed suit in the Superior Court of Rockdale County to enjoin the Fields from maintaining the shelter in the trailer park. A consent order was entered in August 1980 allowing the Fields to move the shelter to a seven-acre site on Farmer Road, elsewhere in the county. This decree re- quired the Fields to seek appropriate building permits and zoning variances and to build a fence along the Farmer Road frontage to conceal the shelter. The shelter was moved to the Farmer Road site. The Fields applied to the County Board of Zoning Appeals for a variance from a 200-foot setback ordinance but were denied. They did not appeal the denial to the County Board of Commissioners. In 1982 the county filed suit in superior court to enjoin the Fields from expanding the Farmer Road shelter. An order was entered in July 1982 prohibiting further expansion. Early in 1983 a neighborhood association sued the county and the Fields in superior court to abate an alleged nuisance and to require enforcement of the setback ordi- nance. The county cross-claimed. Following trials, orders were entered requiring the county to enforce the setback and enjoining the Fields from operating a nuisance. The order addressed to the Fields directed them to propose a compliance plan. Presumably no such plan was submitted. The orders were stayed pending the Fields’ appeal. The Supreme Court of Georgia affirmed the judgments. Life for God’s Stray Animals, Inc. v. New North Rockdale County Homeowners Ass’n, 253 Ga. 551, 322 S.E.2d 239 (1984). App. 3 In September 1984, shortly before the Georgia Su- preme Court issued its decision, the Fields contracted to buy a 220-acre parcel of land, also in Rockdale County, on Miller Bottom Road, adjoining the county dump. They hoped to transfer the population of the Farmer Road site, which then totalled approximately 1,000 animals, to a new facility to be built at Miller Bottom. News of the purchase was published, and within ten days the county passed an ordinance! that would limit the population of animals in 1 Section 9-3009—MAXIMUM SIZE OF KENNELS. (a) A kennel is hereby defined to include the keeping of dogs and/or cats for commercial, non-commercial! or chari- table purposes at or on a particular location or site where said dogs or cats are restrained or confined within a fence, building, structure or other enclosure. (b) It shall be unlawful for any person, firm, corporation, unincorporated association, partnership, joint venture, chari- able organization or other legal entity to maintain or operate a kennel within Rockdale County in which the number of dogs exceeds 150 in number [sic], or in which the number of cats exceeds 50 in number. (c) In determining the population limits of a kennel, joint ownership or joint control of separate kennel sites or locations by the same person, firm, corporation, unincorporated asso- ciation, partnership, joint venture, charitable organization or other legal entity shall cause all dogs and/or cats involved in such jointly owned or jointly controlled separate kennel sites or locations to be added together and counted as one kennel! —if the kennel sites or locations are located within one nauti- cal mile of each other. (d) This ordinance is intended to prohibit the concentra- tion of dogs and cats so that kennel operations shall not dis- turb the peace, tranquility, and serenity of the various neigh- borhoods in this County and further is intended to protect the public health, safety and welfare relative to various dis- eases Originating with large concentrations of animals. This ordinance shall be liberally construed to accomplish the fore- going intent and purposes. (Continued on following page) App. 4 any kennel to 150 dogs and 50 cats. Commonly owned or managed kennels located within a one natical mile radius of one another were treated under the ordinance as a single kennel. The Fields consummated the purchase of the Miller Bottom property in November 1984. Upon remand from the Georgia Supreme Court, the superior court in January 1985 found the county in non- willful contempt of its order requiring the county to en- force the setback at the Farmer Road site. The county moved for a permanent injunction against the Fields, and in February 1985 the superior court ordered the Fields to remove by February 25 all structures on the Farmer Road property not within the 200-foot setback line. The Fields appealed these orders and moved for stays. The superior court denied a stay. The Fields then filed a motion for supersedeas, which was denied, and the denial was af- firmed by the Georgia Supreme Court on February 20. On February 25, the day of expiration of the deadline for removal set by the superior court, the Fields filed this (Continued from previous page) (e) Any violation of this Ordinance shall subject the of- fender to a fine of Five Hundred and no/100 ($500.00) Dol- lars and/or up to thirty (30) days in the common jails of Rock- dale County for each forty-eight (48) hour period that said violation continues. SECTION 2 This Ordinance is not intended to repeal or to modify the zoning laws or regulatory ordinances of Rockdale County relative to kennels and dogs or cats but as supplementary thereto. SECTION 3 This Ordinance shall be in force and take effect upon adoption. Adopted this 14th day of September, 1984. App. 5 suit against the county in the U.S. District Court, pray- ing for damages and temporary and permanent injunctive relief. The complaint alleged fraud and conspiracy in the county’s defense of the homeowners association litigation, thus depriving the Fields of due process, contractual rights, and freedom of religion. The complaint also alleged that the kennel ordinance was arbitrary and unreasonable, that it was the basis of the county’s refusal to grant building permits for the Miller Bottom tract, and that it created a suspect class ‘‘directed against’’ the Fields. The com- plaint further alleged that the Fields applied on November 30, 1984 for development permits for Miller Botton and that the County had refused, in part because of the kennel ordinance, to issue the permits. Also, the Fields alleged that the kennel ordinance was selectively enforced and that the county’s refusal to grant building permits for the Miller Road site was a taking without just compensation. The homeowners association was permitted to intervene, and the Fields amended their complaint to include allega- tions against the association. On February 26, 1985 the district court granted the Fields a temporary restraining order, and on March 25 the court issued a preliminary injunction against the county. The court found that it had no jurisdiction over the allegations related to the litigation of the setback ordinance at Farmer Road, citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923)? Th district court held that abstention doctrines did not bar its exercise of jurisdiction over the allegations related to the kennel ordinance. In its analysis of the propriety of 2. The Fields have not raised the correctness of this ruling. App. 6 abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 97 S.Ct. 746, 27 L.Ed.2d 669 (1971), the court noted that the constitutionality of the kennel ordinance had not been raised in earlier state court proceedings and that relief could be framed that would not affect pending state proceedings. As for abstention under the doctrine of Railroad Comm’n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the court found that the Fields had ‘‘not articulated any real question of state law [and], in any event ... there is no indication that the state law to be applied is unsettled or involves a unique state consti- tutional issue... .’’ Having crossed the abstention threshold, the district court applied the familiar four-part test to determine the propriety of preliminary injunctive relief, see Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.), cert. denied, — U.S. —, 105 S.Ct. 249, 83 L.Ed.2d 187 (1984) and concluded that the relevant factors, including a rea- sonable likelihood that the Fields would ultimately prevail in their federal equal protection challenge, warranted a preliminary injunction. The county appealed. It issued development per- mits for the Miller Bottom property on May 3, 1985 but reserved its legal rights, specifically those at issue here. The intervenor association is not a party to this appeal. DISCUSSION Abstention is “an extraordinary and narrow excep- tion to the duty of a [federal] Court to adjudicate a con- troversy properly before it,” and is justified “only in the exceptional circumstances where the order to the parties App. 7 to repair to the state court would clearly serve an im- portant countervailing interest.” Allegheny County v. Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). Abstention questions must be resolved by close attention to the facts of each case. Bag- gett v. Bullitt, 377 U.S. 360, 375-79, 84 S.Ct. 1316, 1324-26, 12 L.Kd.2d 377 (1964); Ross v. Houston Indep. School Dist., 559 F.2d 937, 942 (5th Cir. 1977). In this case there are exception circumstances and countervailing in- terests.? Matters of land use planning are primarily of local concern, Louisiana Power & Light Co. v. City of Thibo- daux, 360 U.S. 25, 28, 79 S.Ct. 1070, 1072, 3 L.Ad.2d 1058 (1959). The “routine application of zoning regulations . is distinetly a feature of local government,” Jil! v. City of El Paso, 487, F.2d 352, 357 (5th Cir.1971). In Hill, the issue was whether plaintiff’s business was a public garage or a “junk” yard and, if the latter, whether the city ordinance proscribing junkyards was impermissibly vague under the federal constitution. Plaintiff sought an injune- tion of state civil and criminal proceedings and a declara- tion that the zoning ordinance was unconstitutional. Not- ing that the ordinance was unclear on its face and that a state court decision could moot the federal constitutional question, Hill held that the facts presented a “classic” case for abstention under Pullman. 3. The case presenis factors that evoke concerns that have shaped both the Railroad Comm’n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) abstention doctrines. Their conjunction ‘‘militates in favor of staying our hand.” Gibson v. Jackson, 578 F.2d 1045, 1051 (5th Cir.1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979). App. 8 In the present case there is no parallel unclarity as to whether the Fields operate a “kennel”, but there is considerable lack of clarity surrounding the possible appli- cation of the kennel ordinance to the Fields’ operations. Even if the kennel ordinance were a model of clarity, there is a “fair possibility” that a state court would strike it as contrary to the Georgia constitution, which would avoid the necessity of reaching federal constitutional ques- tions. See C. Wright, The Law of Federal Courts 304 (1983); see also, Avant v. Douglas County, 253 Ga. 225, 319 S.E.2d 442 (1984) (striking, on unspecified constitu- tional grounds, an ordinance “limiting the number of ani- mals per tract without taking into consideration the size of the tract”), following Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975) (striking zoning ordinance on Four- teenth Amendment and Georgia constitutional due pro- cess grounds). Abstention is not necessarily appropriate if the rele- vant state constitutional provision “is the mirror of the federal one.” Wright at 305; see also, Examining Board v. Flores de Otero, 426 U.S. 572, 598, 96 S.Ct. 2264, 2279, 49 L.Ed.2d 65 (1976). The relevant Georgia constitutional provision* does mirror the language of the Fourteenth 4. Article |, section 1, paragraph 1 of the Georgia constitution reads: “No person shall be deprived of life, liberty, or prop- erty except by due process of law.” The Georgia Supreme Court has held that the protections of Georgia’s due process clause may exceed those of the Fourteenth Amendment. National Mtg. Corp. v. Suttles, 194 Ga. 768, 22 S.E.2d 386, 389 (1942); cf. BT Investment Megzrs., Inc. v. Lewis, 559 F.2d 950, 954 & n. 15 (5th Cir.1977) (reject- ing Pullman abstention, citing Florida Supreme Court decision that Florida constitutional provision is ‘coextensive’ with Fourteenth Amendment due process clause). App. 9 Amendment due process clause, but the Georgia decisional law represented by Avant and Barrett is a strain of sub- stantive due process*® that extends protections beyond what federal due process alone affords. Cf. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (federal due process is not an inde- pendent source of property rights). Therefore the ken- nel ordinance is part of a whole that resembles in im- portant respects the “integrated scheme of related consti- tutional provisions, statutes and regulations [which] as a whole” called for “clarifying interpretation by the state courts” in Harris Cty. Comm’rs Ct. v. Moore, 420 U.S. 77, 83, 85 n. 8, 88, 95 S.Ct. 870, 875, 876 n. 8, 877, 43 L.Ed.2d 32 (1975); see also Hill, 4837 F.2d at 356 (noting the city’s argument that its ordinance was drafted to conform to state constitutional decision law). That the kennel or- dinance has never been construed by a state court is a further circumstance favoring abstention. See Lake Car- riers’ Ass’n v. MacMullan, 406 U.S. 498, 511, 92 S.Ct. 1749, 1758, 32 L.Ed.2d 257 (1972); Abell v. Frank, 625 F.2d 653, 656-58 (5th Cir.1980). This court has abstained from deciding land use dis- putes involving zoning, see Hill, and the exercise of emi- nent domain, see Fountain v. MARTA, 678 F.2d 1038, 1046 (11th Cir.1982); Creel v. City of Atlanta, 399 F.2d 5. This court declined to abstain from deciding a challenge based on state substantive due process decisional law in Hen- ley v. Herring, 779 F.2d 1553 (11th Cir. Jan. 14, 1986). The facts of Henley differ in important ways from those presented here. There was no concurrent state court litigation, and the challenge was directed against the use of a state vacation procedure that had been clarified by extensive consideration in the state courts. App. 10 777, 779 (5th Cir.1968), where there were coicurrent pro- ceedings® in the state courts. Here, there is a land use dispute implicating concurrent state court proceedings that present a comparable threat of inconsistent outcomes and attendant friction. “[{T]he federal court should not exert jurisdiction if the plaintiffs ‘had an opportunity to present their federal claims in the state proceedings,’” but did not do so. Moore v. Sims, 442 U.S. 415, 425, 99 S.Ct. 2371, 2378, 60 L.Ed.2d 994 (1979), quoting Juidice v. Vail, 430 U.S. 327 337, 97 S.Ct. 1211, 1218, 51 L.Kd.2d 376 (1977) (emphasis in original). That the new kennel ordinance has been cited in no pleading or motion in the pending state litigation does not mean that the facts calling for abstention are any less compelling. There is no indication that the kennel ordinance cannot be chal- lenged’ in superior court now. The record does not reveal what impact on the Farmer Road site compliance with the February 1985 superior 6. Younger abstention may not be proper where the district court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whom- ever an e:fort might be made to apply it.” Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1212, 43 L.Ed.2d 482 (1975). The district court made no such findings here. 7. See e.g., Ga.Code Ann. §§ 23-4-31 (Power of court to mold and enforce decrees”), 9-11-60 (‘Relief from judgments’’) (1982 & 1984 Supp.); City of Cordele v. Hobby, 240 Ga. 207, 240 S.E.2d 16 (1977) (upon verdict finding nuisance, court is to “mold its decree to meet the exigencies of the case .. .”). nan ILE 8 V MEAs a App. 11 court order would have.’ It is possible therefore that the state court will be called upon? to exercise its con- — tinuing jurisdiction to apply the kennel ordinance to a residual animal population at Farmer Road, while, in the meantime, the federal court deals with be application of the ordinance to Miller Bottom. This possibility presents more than the prospect of “parallel . . . proceedings” in state and federal court with respect to distinct parcels of real estate. Cf. Fountain, 678 F.2d at 1046 & n. 14. The kennel ordinance by its terms would count geographically distinct kennels within a nautical mile of one another as a single kennel. The record does not establish whether the Farmer Road and the Miller Bottom sites are to be counted as one under the ordinance. The “possibility of inconsistent judgments” and “insuperable difficulties .. . over the proper remedy” evident here are exceptional circumstances favoring abstention by the federal court. See Fountain, 678 F.2d at 1046; Creel, 399 F.2d 779. We note the indications in the record that the county does not intend to press the kennel ordinance against the 8. Aithough the superior court order of January 1984 enjoined the Fields from operating the shelter at Farmer Road, the ap- parently superceding February 1985 order suggests that the Fields comply by “| rjeorganiz[ing] . . . the use of existing structures [at Farmer Road] that are in compliance with the setback requirements, so that as many animals as humanely possible are housed in structures that do not violate the set- back requirements.” The federal court’s order of February 26, 1985, granting temporary injunctive relief, found it un- clear “whether the shelter can be reorganized on its present location to comply with the setback requirements.” 9. The homeowners association has stated that it is interested in closing down the Farmer Road kennel altogether, an in- terest that it asserts the county does not share. See Motion of Homeowners Association to Intervene, Record at 93. App. 12 Fields until the constitutional issues raised here have been adjudicated. “[T]he District Court of course possesses ample authority in this action, or in such supplemental proceedings as may be initiated, to protect the appellees” while awaiting the judgment of the state courts. Harrison v. NAACP, 360 U.S. 167, 178-79, 79 S.Ct. 1025, 1031, 3 L.Ed.2d 1152 (1959); see also, Babbitt v. Farm Workers, 442 U.S. 289, 312 n. 18, 99 S.Ct. 2301, 2316 n. 18, 60 L.id.2d 895 (1979). Aecordingly, we vacate the judgment and re- mand to the district court with instructions to afford the Fields a reasonable opportunity to bring, their claims in state court, meanwhile to retain jurisdiction for further proceedings consistent with this opinion. VACATED and REMANDED with directions. App. 13 APPENDIX, PART II UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Filed in Clerk’s Office U.S.D.C. — Atlanta March 25, 1985 Ben H. Carter, Clerk By: G. Jackman, Deputy Clerk CIVIL ACTION C85-1741A ANN P. FIELDS, et al., Plaintiffs, v. ROCKDALE COUNTY, GEORGIA, et al., Defendants. ORDER This lawsuit challenges an alleged conspiracy and fraudulent conduct by officials of Rockdale County and a group of homeowners against plaintiffs and the large animal shelter they own and operate. Plaintiffs allege that the conduct of litigation by defendants in Superior Court of Rockdale County denied them due process and that an ordinance enacted by the Rockdale County Com- mission on September 14, 1984, limiting the number of dogs and cats that may be owned by an individual or group at a particular location. is unconstitutional. Plaintiffs moved for a preliminary injunction to re- strain defendants from taking any steps to move the ani- mal shelter facilities and animals from their present loca- tion, to determine that the new ordinance is unconstitu- App. 14 tional, and to direct defendants to issue development permits on plaintiffs’ new property. In order to obtain a preliminary injunction, a movant must show that (1) he is likely to prevail upon the merits at a final determination, (2) that he will suffer irrepar- able injury unless the injunction issues, (3) that the threatened injury to movant outweighs whatever damage the proposed injunction may cause the opposing parties, and (4) the injunction would not be adverse to the public interest. Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.), cert. dented, 105 S.Ct. 249 (1984) ; Penthouse International, Ltd., v. Webb, 594 F.Supp. 1186, 1191 (N.D. Ga. 1984). Before turning to the four criteria of preliminary in- junctive relief, the Court must examine its jurisdiction over the several counts in the complaint and its power to afford plaintiffs some of the preliminary relief they seek. In count one of the complaint, plaintiffs allege a vio- lation of their rights to due process in the state courts of Georgia. They contend that Rockdale Superior Court improperly disregarded a 1980 consent order between Rockdale County and plaintiffs; that the Superior Court failed to afford them a fair and adequate opportunity to participate in a hearing on a petition for a writ of man- damus; that the Superior Court wrongly entered an in- junction against plaintiffs after taking no evidence at the hearing on the injunction request; that the Superior Court denied plaintiffs a jury trial on a cross-claim for damages ; and that the Superior Court and the Georgia Supreme Court denied writs of supersedeas pending appeai of the injunction entered against them. 1 oe SAS DL RATS ET PO A on App. 15 In count two, plaintiffs allege that the new ordinance is unconstitutionallly arbitrary and unreasonable, that it violates their right to equal protection of the laws, and that it was unlawfully enacted. Counts three and four do not add substantive claims; they merely specify relief sought. Plaintiffs have moved to amend the complaint, but the proposed amendments do not affect determination of the motion for a preliminary injunction. Federal district courts have no jurisdiction to entertain a proceeding to reverse or modify the judgment of a state court for constitutional errors; to entertain such a pro- ceeding would be an exercise of appellate jurisdiction. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Rey- nolds v. Georgia, 640 F.2d 702 (5th Cir. Unit B), cert. de- nied, 454 U.S. 865 (1981); Collins v. Collins, 597 F.Supp. 33 (N.D. Ga. 1984). In count one plaintiffs seek relief that is barred by Rooker. To avoid the Rooker bar, they invoke Wood v. Orange County, 715 F.2d 1543 (11th Cir. 1983), cert. de- nied, 104 S.Ct. 2398 (1984). Wood acknowledged that the Supreme Court had re- affirmed the Rooker doctrine in District of Columbia Court of Appeals v. Feldman, — U.S. —, 103 S.Ct. 1303 (1983) ; but in light of a lengthy footnote in the Supreme Court’s opinion, see Feldman, 103 S.Ct. at 1315 n.16, the court of appeals interpreted the Rooker bar as applying only to issues that a plaintiff had a reasonable opportunity to litigate in state court. Wood, 715 F.2d at 1547. Plaintiffs argue that, because they had no opportunity to present their case in Rockdale Superior Court, their App. 16 claim falls within the Wood exception to the Rooker bar. This argument fails. Even if plaintiffs’ allegations about Rockdale Superior Court are correct, plaintiffs have failed to show that they have had, and continue to have, no rea- sonable opportunity to litigate the issues presented in count one! during their past and present appeals to the Georgia Supreme Court. The proper question under Wood is not whether plaintiffs found no fair opportunity to liti- gate in one particular state court, but whether they had ‘no meaningful opportunity to be heard in the entire state court system, including its appellate courts. Furthermore, the facts presented in Wood that re- sulted in a finding of no fair opportunity to litigate are very different from those in this case. In Wood, plain- tiffs. who were challenging the validity of liens entered against them in state court, had signed affidavits waiv- ing notice of any lien proceedings. They learned about judgments on the lien proceedings only after time for ap- peal had elapsed. As a result, they were utterly fore- closed even from appearing at the proceedings. In this ease an attorney for plaintiffs was present at every hear- ing in Rockdale Superior Court and had the opportunity to register objections. Because plaintiffs were not denied a fair opportunity to litigate their due process claims in the state courts of Georgia, the Ceurt concludes as a preliminary matter that it is without jurisdiction over count one of the complaint. The Court therefore will not consider fashioning any in- . Plaintiffs’ claims that the lack of a record in Superior Court precludes effective appellate review may be raised before and considered by the Georgia Supreme Court. ence me are tees. emotes ait LTE App. 17 junctive relief that would have as a direct or indirect effect the review or modification of judgments by Rock- dale Superior Court or the Georgia Supreme Court. Count two of the complaint, which alleges unconstitu- tionality of the new county ordinance, is properly before the Court. If the constitutionality of the ordinance had been made an issue in the earlier proceedings in state courts, this Court might have to abstain under the prin- ciples enunciated in Younger v. Harris, 401 U.S. 37 (1971). Because, however, that issue was never raised in the state courts, and because this Court may frame relief that would not affect the pending state enforcement proceedings, Younger does not apply. The doctrine of postponement of federal constitutional adjudication in Railroad Commisison of Texas v. Pullman Co., 312 U.S. 496 (1941), does not apply here because, al- though plaintiffs have vaguely alluded to violations of state law or county ordinances, they have not articulaied any real question of state law. In any event, even if plain- tiffs were to articulate such a question, there is no indica- tion that the state law to be applied is unsettled or involves a unique state constitutional issue, both of which would make Pullman abstention appropriate. See C. Wright The Law of Federal Courts 304 (4th ed. 1983). Nor is abstention of the sort involved in Burford v. Sun Oil Co., 319 U.S. 315 (1943), required here. No par- ticularly complicated system of regulation is present here to cause the Court to defer to the state, and it is estab- lished that federal courts may properly review state land-use regulation. See Nasser v. City of Homewood, 671 F.2d 432, 439-440 (11th Cir. 1982); South Gwinnett App. 18 Venture v. Pruitt, 491 F.2d 5 (5th Cir.) (en bane), cert. denied, 419 U.S. 837 (1974). The Court will therefore pro- ceed to consider, on a preliminary basis, the constitu- tionality of the new ordinance.” Because plaintiffs have not shown that the ordinance creates any suspect classification or impinges upon any fundamental right, the appropriate standard of review is the “rational basis” test. That test requires merely that laws be ‘‘seen to have a reasonable relation to a proper legislative purpose, and [be] neither arbitrary nor dis- eriminatory.’’ Nebbia v. New York, 291 U.S. 502, 537 (1934). As the former Fifth Circuit, sitting en banc, stated regarding a challenge to a zoning decision, The only question which federal district court may consider is whether the action of the zoning commis- sion is arbitrary and capricious, having no substan- tial relation to the general welfare. It necessarily follows that upon a factual showing of arbitrariness there must be some basis in fact and law to justify the zoning action as consistent with reasonableness. South Gwinnett Venture, 491 F.2d at 7. Evidence at the hearing on the motion for a prelimi- nary injunction made it quite clear that the classification contained in the ordinance—the numerical limit on mainte- nance of dogs and cats—was arbitrary, capricious, and ir- 2 The ordinance is reprinted as an appendix to this order. 3 Plaintiffs have stated that there is a suspect classification and that the ordinance limits the free exercise of their religion, but they adduced no evidence in support of those statements. App. 19 rational. There was no evidence of any principled attempt to study the effects of any particular concentration or pop- ulation of animals. Instead, to arrive at the limit imposed by the ordinance, employees of the county commission called all the county’s major kennels except that of plain- tiffs and ascertained what restrictions the other kennels would find convenient for their own purposes. The intent to single out plaintiffs is evident both from the testimony and from the argument of the county’s counsel; as counsel said, ‘‘This ordinance addresses itself to the Fields.’’ There is hardly a more arbitrary or discriminatory way that the ordinance could have been fashioned. In light of the strong factual showing of arbitrariness, the Court must consider whether the zoning action is con- sistent with reasonableness and substantially relates to the general welfare. The sole legislative purpose expressed in the ordinance and in argument by counsel for Rockdale County is abatement of the noise and health hazards that result from large concentrations of animals. The Court finds that purpose to be a legitimate county objective. On the other hand, the ordinance does not regulate concentra- tions at all. It merely limits the numbers of dogs and cats that may be kept at one site, or at any jointly owned or controlled groups of sites within one nautical mile, regard- less of the sizes of the sites. Concentration, the suggested concern of the ordinance, is a function of two different fac- tors: population and area. The ordinance regulates pop- ulation alone with no reference to, or consideration of, size of the property where animals are kept; as a consequence, the ordinance creates a restriction that is entirely irrele- vant on its face to the legislative goal. That irrelevance constitutes irrationality, and the ordinance therefore fails App. 20 rationally to relate to the expressed legislative purpose. Because the ordinance does not in fact limit density of ani- mal population at any site, it does not substantially relate to general welfare.* Because at this juncture the ordinance apears to be unreasonably related to the County’s goals, arbitrary, and discriminatory, the Court preliminarily concludes that the ordinance is unconstitutional and that plaintiffs are likely to prevail at the final determination of the merits of count two. The Court finds that plaintiffs will suffer irreparable harm if the ordinance is enforced, both because the consti- tutional violation itself is unlikely to be redressable by money damages and because enforcement of the ordinance will unduly impinge upon plaintiffs’ urgent efforts to establish their kennel in a new location once it moves from its present site. The Court further finds that the threat to plaintiffs if the injunction does not issue outweighs any harm to other parties as a result of the injunction. Finally, the Court determines that the public interest will be served by the prohibition of enforcement of the unconstitutional ordi- nance. For the reasons stated above, the Court ENJOINS de- fendants Rockdale County, C. S. Smith, Jr., and Randy 4 — For example, under the ordinance plaintiffs could keep only 150 dogs and 50 cats on their new, 220-acre property. The same area, if subdivided and owned separately, could, con- sistently with the ordinance, contain over 8000 dogs and 2400 cats, even allowing for the effect of set-back require- ments. Fssee A bas ntact Naleited walla App. 21 Mills, and any other officer of Rockdale County, from ap- plying or enforcing Section 9-3009 of the Rockdale County Code until further order of this Court. IT IS SO ORDERED, this 25th day of March, 1985. /s/ Marvin H. Shoob, Judge United States District Court Northern District of Georgia AN ORDINANCE TO REGULATE THE SIZE AND LOCATION OF KENNELS IN ROCKDALE COUN- TY; TO PROVIDE PENALTIES FOR VIOLATION THEREOF; TO SUPPLEMENT OTHER ORDI- NANCES AND FOR OTHER PURPOSES BE IT ORDAINED by the Board of Commissioners of Rockdale County, Georgia, and it is hereby ordained by authority of same as follows: SECTION I There is hereby adopted a new Section of the Code of Rockdale County, to be known as Code Section 9-3009 and it shall read as follows: 5 Although plaintiffs moved for consolidation of trial upon the merits with the hearing on the motion for a preliminary injunction, the Court did not consolidate the trial and the hearing. This injunction will therefore continue until full resolution of the claims at a later stage in the case. Plaintiffs also requested that the Court, in the preliminary injunction, restrain defendants from taking any step to move the animal shelter from its present location and to direct defendants to issue development permits on plaintiffs’ new property. The Court has no jurisdiction to restrain defen- dants from action concerning the shelter at its current location. The Court may have jurisdiction to order some relief as to the county’s consideration of plaintiffs’ devel- opment permit applications, but that matter is not yet ripe (Continued on following page) App. 22 SECTION 9-3009—MAXIMUM SIZE OF KENNELS. (a)