Petition for Writ of Certiorari — Moore v. City of Asheville

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Supreme Court, U.S.

FILED

Q4159 3MAY 24 2005

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

CARROLL MOORE,

Petitioner.

CITY OF ASHEVILLE, NORTH CAROLINA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

——————=SSSaaana@"oOO>™>™——————

PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver

(Counsel of record)

Erik W. Stanley

Anita L. Staver

Rena M. Lindevaldsen

Mary E. McAlister

LIBERTY COUNSEL

210 East Palmetto Avenue

Longwood, FL 32750

(407) 875-2100

Attorneys for Petitioners

QUESTIONS PRESENTED

1. Whether abstention under Younger v. Harris in a First

Amendment challenge to a local ordinance that chills

speech is appropriate when there are no ongoing state

administrative or judicial proceedings and all state

proceedings have become final.

2. Whether a federal court is required to abstain under

Younger v. Harris in a First Amendment challenge to

a local ordinance that chills speech when all state

proceedings are final, a federal plaintiff has no further

rights to appeal in state administrative bodies or state

courts, and when all time periods for appeal of the

state proceedings have lapsed.

3. Whether abstention under Younger v. Harris is

appropriate when a plaintiff is cited for violation of a

local noise ordinance, pays the fine instead of

appealing the citation and institutes a federal court

action seeking prospective relief against the

enforcement of the ordinance.

PARTIES

The Petitioner is Carroll Moore, an individual and

resident of Tuckasegee, North Carolina.

The Respondent is the City of Asheville, North Carolina.

Respondents in the District Court also included James L.

Westbrook, in his official capacity as the City Manager of

Asheville, North Carolina, and the Asheville Police

Department. Mr. Westbrook and the Asheville Police

Department were dismissed by order of the District Court

(App., 39a-40a) and Plaintiff did not appeal their dismissal.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........ccccccccccees i

DUT ccichedadvudeseedctncncccceeceoesacses il

py Fe oe 5 | Ferrer ry Tr ili

TABLE OF AUTHORITIES ...........ccccccceess iv

SEEDED cccccentcccccccccscecncesases 1

Ps Sc pbdebsceccsecccccsecerccsasese |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............-2005- l

STATEMENT OF THE CASE ............22ceeeee. 1

REASONS FOR GRANTING THE PETITION ........ 8

THE FOURTH CIRCUIT IN THE PRESENT CASE

TOGETHER WITH THE THIRD AND EIGHTH

CIRCUITS DIRECTLY CONFLICT WITH

DECISIONS FROM THE FIFTH, SIXTH AND

ELEVENTH CIRCUITS AS WELL AS A

PREVIOUS DECISION FROM THE FOURTH

CIRCUIT ON THE APPLICABILITY OF YOUNGER

ABSTENTION TO STATE PROCEEDINGS THAT

PP UUs as ccc cnscencccsscccscascacccess 8

IL.

THE FOURTH CIRCUIT’S OPINION IS IN

CONFLICT WITH PRECEDENT FROM THIS

COs nin nccaceccdaseseetasacconcssasncses 19

Il.

THIS CASE PRESENTS A MATTER OF GREAT

IMPORTANCE, JUSTIFYING REVIEW BY THIS

+: | « SP PePrrrrrrrrrer tr rrr 25

CONC AMI nn cccccccctencnsnccesccssceseoss 28

TABLE OF AUTHORITIES

CASES Page(s)

Federal Cases

Alleghany Corp. v. Haase,

896 F.2d 1046 (7th Cir. 1990) .........-. eee eee 17

Alleghany Corp. v. Pomeroy,

898 F.2d 1314 (8th Cir. 1990) ............ 13, 14,17

Bacon v. Rutland R. Co.,

DID US: 136 CIGD 2. noon cscccnsascssesreasss 21

Bonner v. Pritchard,

661 F.2d 1206 (11th Cir. 1981) ...........-500-- 10

City Bank Farmers’ Trust Co. v. Schnader,

294 US. BACIGID oc cca cciccenccscncscvas 20-21

Concerned Citizens of Vicksburg v. Solls,

567 F.2d 646 (Sth Cir. 1978) .........-2--ee eee 10

Doran v. Salem Inn, Inc.,

AAS US. TEROIGTO) oan ccvccaccecsescneses 10, 23

Heck v. Humphrey,

$12 US. 477 (1994) 2 wc ec csessssccccssccscess =

Huffman v. Pursue,

420 US. 592 (19TS) .. ccc sccccccccces 7, 20, 21, 23

Juidice v. Vail,

490 US. 327 CIDTT) 2 oc cccccccccccccccsscccces 24

Lake Carriers’ Association v. MacMullan,

406 UB. GBB CIGTED « cccccccccccccccsccccccess 10

Monroe v. Pape,

365 U.S. 167 (1961) .... 1... ee eee eee eee 9, 16, 20

Norfolk & Western Railway Co. v. Public Utilities

Comm'n. of Ohio,

926 F.2d 567 (6th Cir. 1991) ...........445. 8, 11,12

Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc.,

477 U.S. 619 (1986) ..........--445- . 7, 16, 17, 25

O'Neill v. City of Philadelphia,

32 F.3d 785 (3d Cir. 1994)... . 2.2... ee ees 13, 14, 16

Patsy v. Florida Bd. of Regents,

457 US. 406 (1SEZ) . oc cccccccccces 9, 16, 17, 24, 25

Samuels v. Mackell,

GE TES. OE ccccrcecsncutesedsancdaseesnn sees 10

Sofer v. State of North Carolina Hertford Police Dep't,

935 F.2d 1287 (4th Cir. 1991 (unpublished),

available at, 1991 WL 107545 .........-+++- 12, 13

Steffel v. Thompson,

415 U.S. 452 (1974) .. 0. cc ccc ccccccecceces 23, 26 )

vii

Thomas v. Texas State Bd. of Medical Examiners,

807 F.2d 453 (Sth Cir. 1987) ........-----+: 8,9, 10

Trainor v. Hernandez,

431 U.S. 434 (1977) .. 1... ee eee ee eee ees cecoue

United States v. Salerno,

481 U.S. 739 (1987) ... 2... eee eee eee eee eees 18

WXYZ, Inc. v. Hand,

658 F.2d 420 (6th Cir. 1981) .... 2... eee ee sees 11

Wooley v. Maynard,

430 U.S. 705 (1977) ........--+5+- 13, 21, 22, 23, 26

Younger v. Harris,

401 U.S. 37 (1971) ... 2... ee eee eee e eens i, passim

STATUTES AND ORDINANCES

TUG SUBGME) ...ccccccccccscedesscccccseses 1

caccncsannienenss 1, 9, 16, 20, 23, 25

Asheville Code §10-87 ............--- 3, 15, 19, 26, 27

DC ONDG 5c cic idsdccsccesequesecscss 4

Asheville Code §§16-113, 16-116 ............222005: 4

Asheville Code §§10-83-10-85 .... 2.2.0.0 eeeeeeees :

OPINIONS BELOW

The opinion of the Court of Appeals (App., la - 23a) is

reported at 396 F.3d 385. The opinion of the Court of Appeals

denying rehearing en banc (App., 42a) is unreported. The

opinion of the District Court (App., 24a-41a) is reported at

290 F. Supp. 2d 664.

JURISDICTION

The judgment of the Court of Appeals was filed on

January 25, 2005. The Court of Appeals denied rehearing en

banc on February 23, 2005. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ‘

This case raises issues involving the Free Speech Clause

of the First Amendment to the United States Constitution and

involving the application of 42 U.S.C. §1983 in the context of

abstention under Younger v. Harris.

STATEMENT OF THE CASE

Petitioner Carroll Moore, who is employed full time as a

carpenter, exercises his sincerely held religious beliefs nearly

every weekend by taking to the public sidewalks, parks and

plazas throughout Nerth Carolina, to publicly tell others about

Jesus Christ. App., 2a, 4a. Moore has engaged in “street

preaching” in the City of Asheville and elsewhere throughout

the country for the past seven years. App., 4a, 24a. In 2003,

while engaged in street preaching, Moore was cited twice for

violating the Asheville Code of Ordinances. App., 2a, 4a.

The first citation was issued on Saturday March 29, 2003.

App., 4a. At about 1:00 p.m., Moore began to engage in street

preaching near Pritchard Park, on public property, in an area

commonly used for public discourse and activities. Jd. The

street preaching was unamplified, noncommercial, and made

from a fixed location in a non-residentially zoned area. See

Verified Comp. at 429. At that same time, a permitted event

was taking place at Pritchard Park. App., 4a. Accordingly,

Moore positioned himself just outside the permitted area. See

Verified Comp. at 930. An Asheville police officer

approached Moore and told him that he would need to leave

the area and go to the sidewalk across the street. App., 5a,

25a. Once across the street from Pritchard Park, Moore began

to engage in unamplified street preaching. Jd. An Asheville

police officer then cited him for “street vending or peddling”

in violation of the Noise Ordinance in Section 10-84. Jd. The

officer also warned Moore that if he continued to engage in

street preaching, the next citation would be a criminal

citation. /d. At the time the Complaint was issued, Moore was

not selling anything or soliciting donations. See Verified

Comp. at 935. Plaintiff paid the $50 fine. App., 5a, 25a.

The second citation was issued on Saturday, April 19,

2003. App., 5a, 25a. At about 1:00 p.m., Moore began to

engage in street preaching near the City County Plaza, on

public property, in an area commonly used for public

discourse and activities. Jd. The street preaching was

unamplified, noncommercial and made from a fixed location

in a non-residentially zoned area. See Verified Comp. at 938.

At that same time, a permitted event was taking place in front

of City Hall. App., 5a, 25a. Accordingly, Moore positioned

himself just outside the permitted area. Jd. An Asheville

police officer issued to Moore a Complaint and Notice of

Civil Penalty for violating Section 10-84’s (the Noise

Ordinance) prohibition of the “use of any drum, loudspeaker

or other instrument or device for the purpose of attracting

attention by creation of noise to any performance, show, or

sale or display of merchandise.” Jd. The citation required him

to pay a $100 fine. Jd. At the time the citation was issued,

Moore was not using any drum, loudspeaker or other

instrument or device; rather, Moore was using only his

unamplified voice. See Verified Comp. at 42. Moore timely

appealed the citation to the Noise Ordinance Appeals Board

pursuant to Asheville Ordinance 10-86. App., 5a, 25a. The

Noise Ordinance Appeals Board upheld the citation and

Moore paid the $100 fine. /d.

Importantly, Code Section 10-87 states:

Nothing in this article shall be construed to prevent or

limit any person from seeking any remedy available in

law or equity for activities that are or may be subject

to regulation by this chapter, or from pursuing said

remedy simultaneously with proceedings under this

chapter, nor shall any of the procedures specified

herein be a condition precedent to the initiation of any

legal action.

After Moore paid the fines, he filed suit in federal court

seeking an injunction and declaratory relief and damages for

the abridgment of his constitutional rights. App., 6a. At the

time of filing the suit, the state proceedings under both

citations were final. The city administrative bodies and the

state courts were doing nothing related to the Noise

Ordinance citations, planned on doing nothing related to those

citations nor could they have done anything in the future

related to the citations because the citations were completely

final at the time of filing the suit. App., 10a. Moore filed suit

in order to obtain prospective relief for the future so that he

a a

could once again street preach in the City of Asheville

without fear of citation for violating the City’s Noise

Ordinance. In his lawsuit, Moore challenged Asheville Code

§16-4 (“Public Speaking Ordinance’’), §§16-113 and 16-116

(“Picketing Ordinances), and §§10-83-10-85 (‘Noise

Ordinances”). App. 25a-27a. Moore’s challenges to these

code sections were facial challenges and “as-applied”

challenges. App., 25a.

In the Complaint Moore sought an injunction specifying |

that:

(1) Defendants allow Plaintiff to engage

in street preaching on the public

sidewalks, parks, plazas and other

public places within the city of

Asheville; and

(2) Defendants are enjoined from

enforcing the Picketing (§§ 16-113,

16-116), Public Speaking (§ 16-4) and

Noise Disturbance Policies (§§ 10-82

through 10-89) so as to prohibit “street

preaching” on the public sidewalks,

parks, plazas and other public places

within the city of Asheville.

See Verified Complaint at Prayer for

Relief.

Moore also sought a Declaration that:

(1) Defendants’ Public Speaking Policy (§

16-4) invalid on its face insofar as it

prohibits all public speaking on the

streets, alleys, sidewalks, public

squares or any public grounds of the

city without first obtaining the written

permission of the city manager;

ICR rrr eremeteels

~ (2) ThatDefendants, Defendants’ officers,

agents, employees and other persons

acting in active concert with them,

unlawfully obstructed Plaintiff from

exercising Plaintiff's constitutionally-

protected rights;

(3) Defendants’ Picketing Policy (§§ 16-

113, 16-116) and Noise Disturbance

Policy (§§ 10-82 through 10-89)

invalid on their face insofar as they are

overbroad;

(4) Defendants’ Noise Disturbance Policy

(§§ 10-82 through 10-89) invalid as

applied by Defendants insofar as it

prohibits Plaintiff from street

preaching on public sidewalks, public

plazas and public parks based on the

religious content and religious

viewpoint of his message.

(A. 25). The thrust and focus of Moore’s Complaint was

prospective and was geared toward removing the obstacle of

the noise ordinance so that he may engage in the future in

constitutionally-protected speech. Moore’s complaint did not

seek a declaration from the Court that the state court action

was wrong or that it should be reversed or overturned. Moore

also did not seek an injunction from the federal court stopping

an ongoing proceeding. While Moore’s Complaint did contain

a damages claim, Moore made clear that the damages claim

was solely for nominal damages for vindication of

constitutional rights and that the damages claim did not

interfere with any ongoing or final state proceedings.

See Reply Brief to Fourth Circuit at 11-16.

The Defendant’s moved to dismiss Moore's Complaint

arguing that the action should be barred under the

Younger abstention doctrine. App., 28a. Shortly after

Plaintiff's lawsuit was filed, the City of Asheville repealed

the Public Speaking Ordinance and requested that the District

Court dismiss Moore’s challenge to that ordinance. App., 36a.

The District Court dismissed Moore’s challenges to the

Public Speaking Ordinance and the Picketing Ordinance.

App., 41a. The District Court held that Moore’s challenge to

the Noise Ordinance should be stayed under the abstention

doctrine announced in Younger v. Harris, 401 U.S. 37 (1971).

App., 41a. The District Court rejected Moore’s argument that

there was no longer an ongoing state proceeding because he

did not appeal his first citation and ceased pursuing the appeal

of the second citation. App. 28a. The District Court believed

that Younger abstention was proper even though Moore’s

state proceedings were final and stayed Moore’s claims

pending the outcome of a state proceeding. Jd.

Moore appealed to the Fourth Circuit' who affirmed the

District Court’s decision to abstain under Younger.’ The

'The Fourth Circuit held that in spite of the fact that the District

Court had stayed Moore’s claims, the Circuit Court had

jurisdiction to review the order because “the effect of the district

court’s order to stay, pending the outcome of a state proceeding,

effectively ended the litigation in view of the facts that no state

court proceedings were pending at the time of the district court’s

order and the administrative ‘judgments’ were no longer

appealable.”

*Moore did not appeal the District Court’s dismissal of his

challenges to the Public Speaking and Picketing ordinances.

Therefore, the only issue before the Circuit Court was whether

Younger abstention of Moore’s challenge to the Noise Ordinances

was proper. That is likewise the issue presented in this Petition.

Circuit Court found that this Court had extended Younger to

“completed state proceedings” App., 15a. The Circuit Court

recognized that, “It is true that the Supreme Court has not yet

held that a federal court should abstain under Younger from

hearing a federal claim when the plaintiff has failed to

_ exhaust state administrative remedies and defaulted on his

opportunity to do so.” Jd. However, the Circuit Court felt that

this Court had suggested just such a result in Huffman v.

Pursue, 420 U.S. 592 (1975) and Ohio Civil Rights

Commission v. Dayton Christian Schools, Inc., 477 U.S. 619

(1986). The Circuit Court rejected Moore’s argument that his

Complaint was prospective in nature stating that the

Complaint sought to annul the effects of the prior state

administrative proceedings to the extent that the Complaint

sought to declare the Noise Ordinances unconstitutional as

applied to him. App., 21a. The court held that

To the extent that Moore’s complaint looks back on

the City’s past actions and demands compensation for

them, it seeks to annul what has already been

determined by two police officers and the Asheville

Noise Ordinance Appeals Board. Even though no

state proceedings were pending when Moore filed his

federal complaint - because he had let the times for

appeal lapse - we conclude that his efforts in this case

to cast aspersion on state processes and to annul the

results of the administrative proceedings were

properly barred by the district court under Younger-

Huffman. App., 22a.

Because the Fourth Circuit’s opinion conflicts with its

own precedent, precedent from other circuits and from this

Court, Moore petitions this Court to review his case to resolve

the inter and intra-circuit conflicts on this issue of great public

importance.

REASONS FOR GRANTING THE PETITION

THE FOURTH CIRCUIT IN THE PRESENT

CASE TOGETHER WITH THE THIRD AND

EIGHTH CIRCUITS DIRECTLY CONFLICT

WITH DECISIONS FROM THE FIFTH, SIXTH

AND ELEVENTH CIRCUITS AS WELL AS A

PREVIOUS DECISION FROM THE FOURTH

CIRCUIT ON THE APPLICABILITY OF

YOUNGER ABSTENTION TO STATE

PROCEEDINGS THAT ARE FINAL.

The Fourth Circuit’s opinion in this case directly conflicts

with the Fifth, Sixth and Eleventh Circuits on the issue of

whether Younger abstention applies to federal plaintiffs

whose state proceedings are final. The Third and Eighth

Circuits follow the Fourth Circuit’s opinion in this case and

are also in direct conflict with the Fifth, Sixth and Eleventh

Circuits on this issue. This Court should accept review to

resolve this clear conflict on an issue of great importance to

civil rights plaintiffs.

The Fifth and Sixth Circuits have explicitly held that

Younger abstention is inappropriate when state proceedings

are final, even if a plaintiff did not choose to avail himself of

an appeal available to him in a state proceeding. See Thomas

v. Texas State Bd. of Medical Examiners, 807 F.2d 453 (Sth

Cir. 1987); Norfolk & Western Railway Co. v. Public Utilities

Comm'n. of Ohio, 926 F.2d 567 (6th Cir. 1991) (hereafter

“PUCO”). The Fourth Circuit’s decision stands in direct

conflict to these precedents.

In Thomas, the Fifth Circuit reversed the district court’s

———————————————————e

application of Younger abstention and confirmed the Supreme

Court’s holding that “exhaustion of state remedies is not

required as a prerequisite to §1983 cases....” 807 F.2d at 454.

Thomas was a medical doctor who had been convicted of a

crime and had his medical license revoked by a state

administrative board. Jd. Dr. Thomas initially sought review

of the license revocation in state court, but dismissed the

action and brought the federal court challenge. /d. The district

court abstained under Younger reasoning that Dr. Thomas had

not availed himself of state court remedies before bringing the

federal claim. Jd. The Fifth Circuit reversed and held that

Younger abstention was inappropriate because Thomas’ case

was not pending and the mere availability of a remedy in the

state court that Thomas chose not to pursue before coming to

federal court was not sufficient to invoke Younger abstention.

Id. While Younger is premised on deference to state court

proceedings, such deference “is no longer due when the

administrative proceedings have ended. The mere availability

of state judicial review of state administrative proceedings

does not amount to the pendency of state judicial proceedings

within the meaning of [Younger].” Id. at 456. The court went

on to state:

A person who contends that his constitutional rights

have been violated by a state administrative

proceeding is not required to resort to an appeal to

state courts before seeking relief in a federal forum.

At the time this suit was filed, no state action was

pending. Neither exhaustion of state administrative

remedies, which the Supreme Court held unnecessary

in Patsy v. Florida Bd. of Regents, [457 U.S. 496

(1982)] nor exhaustion of state judicial remedies,

which the Court held unnecessary in Monroe v. Pape,

[365 U.S. 167 (1961)], is a prerequisite to seeking the

aid of a federal court to enforce federal constitutional

rights.

Id. at 456. “When no state proceedings are pending, a federal

action does not interfere with or insult state processes and ‘the

policies on which the Younger doctrine is premised have little

force.” Id at 457 (quoting Concerned Citizens of Vicksburg

v. Solls, 567 F.2d 646, 650 (5th Cir. 1978)).?

In Solls, an unincorporated association sued in federal

court attacking the constitutionality of an anti-boycotting

statute. See Solls, 567 F.2d at 647. The district court in Solls

abstained under Younger because state prosecutions were

pending against six of forty-nine plaintiffs at the time of the

federal case. Jd. at 648. The prosecutions were terminated

during the pendency of the appeal and the Fifth Circuit

reversed, holding that Younger abstention was not appropriate

because the state proceedings had terminated and were now

final. Jd. The court stated that, “Termination of the six

prosecutions eliminated the Younger problem in this case, for

the policies on which the Younger doctrine is premised ‘have

little force in the absence of a pending state proceeding.”” Jd.

at 650 (quoting Lake Carriers’ Association v. MacMullan,

406 U.S. 498, 509 (1972)). The Fifth Circuit explained that

Younger abstention was not appropriate when state

proceedings had become final and were not pending at the

time of the federal action because:

As Mr. Justice Rehnquist explained in Doran v. Salem

Inn, Inc., 422 U.S. 922, 930 [] (1975): The principle

underlying Younger and Samuels (v. Mackell, 401

*The Eleventh Circuit follows the Fifth Circuit’s reasoning as

binding precedent. In Bonner v. Pritchard, 661 F.2d 1206 (11th

Cir. 1981), the Eleventh Circuit adopted as binding precedent,

Fifth Circuit cases decided before 1981.

U.S. 66 [] (1971)) is that state courts are fully

competent to adjudicate constitutional claims, and

therefore a federal court should, in all but the most

exceptional circumstances, refuse to interfere with an

ongoing state criminal proceeding. In the absence of

such a proceeding, however, as we recognized in

Steffel, a plaintiff may challenge the constitutionality

of the state statute in federal court, assuming he can

satisfy the requirements for federal jurisdiction.

Id. at 650. Because the state proceedings had terminated and

had become final, abstention under Younger was

inappropriate. It is equally inappropriate in this case, and the

Fourth Circuit’s opinion to the contrary must be reviewed to

resolve this conflict.

The Sixth Circuit has likewise held that

Younger abstention is inappropriate when there are no

ongoing state proceedings and when any state proceedings

have become final. See PUCO, 926 F.2d at 567. In PUCO, the

railway was found to be in violation of an administrative code

and filed suit in federal court instead of appealing the

determination in state court. Jd. at 569. The Sixth Circuit

rejected the commission’s claim that Younger abstention

should apply because the railroad ‘s failure to exhaust its

state remedies meant the state proceedings were ongoing. Jd.

at 572. “‘When no state proceeding is pending, and

considerations of equity, comity and federalism are therefore

diminished, a federal court may consider constitutional

challenges to state statutes and grant declaratory and

injunctive relief.” Jd. (quoting WXYZ, Inc. v. Hand, 658 F.2d

420, 423 (6th Cir. 1981)). The court then stated:

PUCO contends that the state action in this case is

still “pending” because the railroad did not exhaust its

right of appeal of PUCO’s order. However, we think

ee a |

there was no “ongoing” or “pending” proceeding at

the time the railroad filed suit in the district court.

PUCO conducted an administrative hearing and

concluded that the railroad was in violation of Rule

4901:3-1-05(D). That was the end of the matter and

no further administrative proceedings were

contemplated or appeals available to the railroad short

of judicial review. . . . This court has acknowledged

the distinction between a case wherein a plaintiff

seeks to enjoin an ongoing administrative hearing and

one wherein a plaintiff seeks judicial relief from the

final order of a state agency. . . . In this case, the

agency has already conducted a hearing and issued its

final order.

Id. at 572-73. Because the agency decision was final, the

Sixth Circuit held that Younger abstention was inappropriate.

This direct conflict with the Fourth Circuit’s decision in this

case requires review by this Court.

The Fourth Circuit’s Opinica also directly conflicts with

an earlier Fourth Circuit unpublished opinion in Sofer v. State

of North Carolina Hertford Police Dep't., 935 F.2d 1287 (4th

Cir. 1991 (unpublished), available at 1991 WL 107545. In

that case, the court refused to apply Younger abstention when

state proceedings are final, holding that they are not

considered “ongoing” for purposes of Younger abstention.

In Sofer, Michael and Eve Clark gathered on a sidewalk

in Hertford, North Carolina to street preach. /d. at *1. They

were both arrested by the police for violating a Hertford

ordinance which required a permit before any parade, picket

or demonstration could be held. /d. The Clarks served a full

jail sentence for violating the ordinance and sued the police

department in federal court alleging that the ordinance

violated their First Amendment rights to free speech and

freedom of religion. Jd. The District Court abstained under

Younger. On appeal, the Fourth Circuit reversed holding that

abstention was inappropriate because there were no ongoing

state proceedings. The court very clearly stated:

The district court’s holding was incorrect. Page 7 of

the complaint contains a statement signed by both

Michael Clark and Eve Clark stating that they have

fully completed the jail terms they received for

violating the ordinance. No appeal was taken from the

state convictions; however, that is not fatal to the

present appeal. See Wooley v. Maynard, 430 U.S. 705,

711 (1977). Thus it is clear from the face of the

complaint that ne basis for Younger abstention

existed. . . The district court should have addressed

the merits of this claim. /d. at *2.

The same ruling should have been applied to this case.

The Fourth Circuit’s opinion in the present case stands in

stark conflict with the Fifth, Sixth, and Eleventh Circuits and

a previous decision from the Fourth Circuit holding that

Younger abstention is inappropriate when state proceedings

are final. This Court must accept review to resolve this

conflict.

In contrast, the Third and Eighth Circuits follow the

reasoning of the panel opinion in this case. The Third and

Eighth Circuits have held opposite to the Fifth, Sixth and

Eleventh Circuits and have stated that even when state

proceedings are final, if a plaintiff does not pursue all of his

state proceedings, including all judicial appeals, then Younger

abstention is required. See O'Neill v. City of Philadelphia, 32

F.3d 785 (3d Cir. 1994); Alleghany Corp. v. Pomeroy, 898

F.2d 1314 (8th Cir. 1990).

In O'Neill, two individuals sued the City of Philadelphia

over the City’s process for handling traffic tickets. O ‘Neill, 32

ia la al: i ie

F.3d at 788. At the time of filing the suit, one plaintiff had

paid his fines and one plaintiff had not paid his fines. The

Third Circuit framed the issue as whether “there is a

‘pending’ state proceeding inasmuch as O'Neill and

Goodman filed their federal lawsuit in lieu of appealing the

hearing examiner’s determination, and in lieu of raising their

constitutional claims in the state forum.” Jd. at 790. The Third

Circuit stated, “We have been given no reason why a litigant

in a state administrative proceeding should be permitted to

forego state-court judicial review of the agency’s decision in

order to apply for relief in federal court.” Jd. and 790-91. The

Court then stated:

We hold that state proceedings remain ‘pending,’

within the meaning of Younger abstention, in cases

such as the one before us, where a coercive

administrative proceeding has been initiated by the

State in a state forum, where adequate state-court

judicial review of the administrative determination is

available to the federal claimants, and where the

claimants have chosen not to pursue their state court

judicial remedies, but have instead sought to

invalidate the State’s judgment by filing a federal

action. Jd. at 791.

The Eighth Circuit similarly held in Pomeroy that “parties

may not avoid the strictures of Younger simply by allowing a

state judgment to become final.” Pomeroy, 898 F.2d at 1317.

The Eighth Circuit abstained in Pomeroy because the plaintiff |

Od 12 CP

stents Bal

in that case “failed to present its constitutional claims to the

state courts.” Jd.

O'Neill, Pomeroy and the Fourth Circuit’s opinion in this |

case stand for the proposition that Younger abstention is |

required when state proceedings are final at the time of the

federal complaint, yet the plaintiff has chosen not to pursue

his state appeal remedies and instead has filed suit in federal

court. These cases are in direct conflict with the decisions

cited from the Fifth and Sixth Circuits and extend

Younger beyond where it was intended to go. This Court has

never held that Younger applies in situations where there is

not a current, ongoing state proceeding. Younger, and its

principles of comity and federalism simply do not apply in

situations where state proceedings are final and are not

ongoing. If Younger’s underpinnings rest on a desire of the

federal courts to not “unduly interfere with the legitimate

activities of the States,” Younger, 407 U.S. at 44, then once

the state proceedings have become final, for whatever reason,

there is no justification for a federal court to abstain because

there is no interference with the legitimate activities of the

states. In situations where the state proceedings have become

final, the state has no activity with which the federal court

should be concerned with interfering. Younger, and its

theoretical basis simply does not apply in situations where the

state proceeding is final.

Additionally, the Fourth Circuit in this case and the Third

and Eighth Circuit cases impose a requirement upon a federal

plaintiff to exhaust state administrative and judicial remedies

before filing suit in federal court. The Fourth Circuit imposed

this requirement in the face of Asheville Code §10-87 which

states:

Nothing in this article shall be construed to prevent or

limit any person from seeking any remedy available in

law or equity for activities that are or may be subject

to regulation by this chapter, or from pursuing said

remedy simultaneously with proceedings under this

chapter, nor shall any of the procedures specified

herein be a condition precedent to the initiation of any

legal action.

Despite this clear language, the Fourth Circuit imposed a

requirement that, to comply with Younger, a federal plaintiff

must exhaust all his state administrative remedies and then

must exhaust all his state judicial remedies through appeal

before he can present his claim in federal court. Such a

construction of Younger runs squarely into this Court’s clear

pronouncements that a federal plaintiff does not have to

exhaust his state administrative and judicial remedies before

filing suit in federal court. See Patsy v. Florida Bd. of

Regents, 457 U.S. 496 (1982)(holding that a federal plaintiff

does not have to exhaust state administrative remedies before

bringing suit in federal court); Monroe v. Pape, 365 U.S. 167,

183 (1961)(holding that a remedy for violation of civil rights

under 42 U.S.C. §1983 is supplementary to any state rights

and, therefore, any available state judicial remedies need not

be sought before first seeking a remedy in federal court).

The Third and Eighth Circuits attempt to avoid a head-on

collision with Patsy and Monroe by stating that

Younger abstention only applies when a state’s proceedings

are coercive rather than remedial. See, e.g., O'Neill, 32 F.3d

at 791 n.13. To support their construction that Younger only

applies to state coercive proceedings when the plaintiff has

not pursued all available state administrative and judicial

remedies, they cite to this Court’s discussion in Ohio Civil

Rights Comm'n. v. Dayton Christian Schools, Inc., 477 US.

619 (1986). In that case, this Court made a distinction

between coercive and remedial state proceedings. The Court

abstained, requiring Dayton Christian Schools to first exhaust

all its available state administrative and judicial remedies

before bringing suit in federal court. The Court distinguished

Patsy by stating, “Unlike Patsy, the administrative

proceedings here are coercive rather than remedial, began

before any substantial advancement in the federal action took

eee

place, and involve important state interests.” Dayton

Christian Schools, 477 U.S. at 627-28 n.2. As the Third

Circuit described the Dayton Christian Schools case:

The critical distinction between Dayton Christian

Schools and Patsy is that Patsy involved a remedial

action brought by the plaintiff to vindicate a wrong

which had been inflicted by the State. In contrast,

Dayton Christian Schools involved an administrative

proceeding initiated by the State, before a state forum,

to enforce a violation of state law. That is, in Dayton

Christian Schools, the action taken by the Ohio Civil

Rights Commission was coercive rather than

remedial. ...

O’Neill, 32 F.3d at 791 n.13; see also Alleghany Corp. v.

Haase, 896 F.2d 1046, 1049-51 (7th Cir. 1990)(discussing

difference between coercive and remedial state proceedings).

The major distinction between Dayton Christian Schools

and the present case, is that Dayton Christian Schools

involved an ongoing state proceeding that was not final

whereas the present case involves a final state proceeding.

This Court has never applied the coercive/remedial distinction

to final state proceedings. Instead, the Court has only applied

the coercive/remedial distinction to ongoing state

proceedings. While both O’Neill and Pomeroy did apply the

coercive/remedial distinction to final state proceedings, their

application of that distinction runs counter to Patsy and

Monroe’s requirements that a federal plaintiff need not

exhaust state administrative and judicial remedies before

filing suit in federal court. Additionally, both O’Neill and

Pomeroy overlook the fact that once a state proceeding has

become final, it is no longer a state coercive proceeding,

because the state’s interests in coercing compliance with its

laws has ended. Instead, when a federal plaintiff files suit

after a state coercive proceeding has become final, seeking

prospective injunctive and declaratory relief against future

enforcement of the statute he was previously prosecuted

under, his federal court action is remedial in nature. Moore’s

case is remedial in that he seeks to remedy a future violation

of his constitutional rights. He is not seeking to have the

federal cuurt interrupt an ongoing state coercive proceeding

where the principles underlying Younger are implicated.

Rather, there are no ongoing state proceedings in Moore’s

case - they are final. The City of Asheville is no longer

seeking to coerce Moore into complying with its Noise

Ordinance. Moore has complied with the Noise Ordinance,

and now is seeking to remedy the future violation of his

constitutional rights by attacking the constitutionality of the

Noise Ordinance and removing the barrier that exists to his

right to free speech.

Moore’s challenges to the Noise Ordinance were both “as-

applied” and facial. Under the Fourth Circuit’s conception

and application of Younger, Moore would be strictly limited

to a prospective lawsuit against the Noise Ordinance on its

face. Such a facial challenge is the most difficult to mount. As

this Court stated, “A facial challenge to a legislative Act is, of

course, the most difficult challenge to mount successfully,

since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”

United States v. Salerno, 481 U.S. 739, 745 (1987). Under the

Fourth Circuit’s opinion, Moore would not be able to mention

any of the previous actions against him in attacking the

constitutionality of the Noise Ordinance and certainly would

not be able to bring an “as-applied” challenge against the

Noise Ordinance. Younger has never been applied, especially

in the First Amendment context, to limit federal civil rights

plaintiffs to what is the most difficult federal challenge.

Instead, when the concerns underlying Younger of federalism

and comity are not present because the state proceedings are

completely final, the federal court should be available to

remedy the constitutional violations that have occurred and

will occur in the future absent such federal court intervention.

The argument that Younger abstention should not apply in

this case carries even more force given Asheville’s clear

acknowledgment in §10-87 of their code that any appeals or

actions under the chapter containing the Noise Ordinance

were not mandatory and should not be considered a precedent

condition to any action, whether judicial or not. It is

impossible for Younger’s concerns about comity and

federalism to be present when the state proceedings are

completely final, and the state agency (in this case the City)

specifically disclaims any interest in having exclusive say

over the enforcement of its ordinances.

This Court should reject the Fourth, Third and Eighth

Circuit’s application of Younger to cases where the state

proceedings are final and thus Younger's principles of

federalism are not present, should grant review to reconcile

the conflict in the Circuits on this issue and should follow the

more well-reasoned authority laid down by this Court, and the

Fifth and Sixth Circuits that hold Younger abstention is not

appropriate when the state proceeding is final.

Il.

THE FOURTH CIRCUIT’S OPINION IS IN

CONFLICT WITH PRECEDENT FROM THIS

COURT.

The Fourth Circuit’s conclusion that Younger abstention

applies to bar federal court intervention in state proceedings

when the plaintiff to those proceedings failed to exhaust

available administrative and judicial appeals and those

appeals have become final is in conflict with precedent from

this Court. The panel opinion conceded that “It is true the

Supreme Court has not yet held that a federal court should

abstain under Younger from hearing a federal claim when the

plaintiff has failed to exhaust state administrative remedies

and defaulted on his opportunity to do so.” App., 15a. The

panel opinion further admitted that in applying Younger

abstention to this case the Court was stretching Huffman v.

Pursue, Ltd., 420 U.S. 592 (1975), beyond its holding. App.,

16a. In fact, The panel opinion said the Huffman court

“suggested” the type of application employed by the Court

here. Jd. However, the Huffman court did not suggest such an '

extension of its holding, and this Court has made clear in

cases decided since Huffman that it did not intend such an

extension.

In Huffman, this Court applied Younger abstention to a i

case in which there was a state judicial proceeding under way

at the time that the action was filed. 420 U.S. at 609. The

plaintiff in Huffman had a sufficient judicial forum in which

to have his federal constitutional rights vindicated, but had j

attempted to supercede the state court by filing the federal

action. 420 U.S. at 609. This Court specifically stated that it

was not undermining its holding in Monroe v. Pape, 365 U.S.

167 (1961) that a plaintiff seeking relief under 42 U.S.C. §

1983 need not first file a state court action. Huffman, 420 U.S.

at 609 n. 21. As the Huffman court said, “Monroe v. Pape had

nothing to do with the problem presently before us, that of the

deference to be accorded state proceedings which have

already been initiated and which afford a competent tribunal

for the resolution of federal issues.” Jd.

Our exhaustion requirement is likewise not

inconsistent with such cases as City Bank Farmers’

BAe los ts

Trust Co. v. Schnader, 291 U.S. 24, 54 S.Ct. 259, 78

L.Ed. 628 (1934), and Bacon v. Rutland R. Co., 232

U.S. 134, 34 S.Ct. 283, 58 L.Ed. 538 (1914), which

expressed the doctrine that a federal equity plaintiff

challenging state administrative action need not have

exhausted his state judicial remedies. Those cases did

not deal with situations in which the state judicial

process had been initiated.

Id. Likewise, this case does not deal with the situation in

which a state judicial process had been initiated. Therefore,

this case is unlike Huffman, which involved state proceedings

that had been initiated and afforded a competent tribunal for

resolution of the plaintiff's claims. Consequently, Huffman

cannot be controlling authority, and the court must look to

cases such as Monroe, City Bank, and Bacon to control the

determination in this case.

The conflict between the Fourth Circuit’s Opinion and

Supreme Court precedent is further apparent in cases decided

since Huffman, which have consistently upheld the doctrine

of City Bank and Bacon — that a federal equity plaintiff does

not have to exhaust his state remedies.

This Court explicitly recognized in Wooley v. Maynard,

430 U.S. 705 (1977), that Younger abstention is not

appropriate in cases where an individual may have been cited

in the past for violating a code or statute, but the state

proceeding is final and is not ongoing or pending at the time

of the federal court action. In Wooley, Mr. Maynard

challenged New Hampshire’s statute that made it a criminal

misdemeanor to obscure New Hampshire’s motto on its

license plate. Jd. at 707. Because Maynard was a Jehovah’s

Witness who believed that the state motto of “Live Free or

Die” was repugnant to his faith, he covered up the motto on

his license plates. Jd. at 707-78. Maynard was cited three

times for violating the state law. Jd. at 708. He refused to pay

the fines for the three citations and was sentenced to fifteen

days in jail. Jd. Maynard served his full sentence and, after the

sentence was served and the case was final, he brought suit in

federal court seeking an injunction against the enforcement of

the statute he was convicted under as well as a declaration

that the statute was unconstitutional as applied to him. Id. at

709.

The State argued that the federal court should have |

abstained under Younger. See Wooley, 430 U.S. at 709-10.

The State argued that Maynard failed to seek review in the

state courts of his prior convictions and therefore, the federal

court should abstain from hearing Maynard’s case until

Maynard had exhausted his state appellate remedies. /d. at

710. The Supreme Court rejected this argument and held that

abstention was not appropriate because there was no ongoing

state proceeding and Maynard was not required to exhaust his

appellate remedies before seeking injunctive and declaratory

relief in federal court. Jd. at 710-11. The Supreme Court held

that even though Maynard had not sought appellate relief of

his convictions, “Here, however, the suit is in no way

‘designed to annul the results of a state trial’ since the relief

sought is wholly prospective, to preclude future prosecution

under a statute alleged to violate appellees’ constitutional

rights.” Jd. at 711. The Court also noted that, “He does not

seek to have his record expunged, or to annul any collateral

effects those convictions may have, e.g., upon his driving

privileges. The Maynards only seek to be free from

prosecutions for future violations of the same statutes.

Younger does not bar federal jurisdiction.” Jd. One of the

primary reasons the Court held the way it did was because of

the position Maynard found himself in. The Court stated that,

“Mr. Maynard now finds himself placed ‘between the Scyila

eee

of intentionally flouting state law and the Charybdis of

forgoing what he believes to be constitutionally protected

activity in order to avoid becoming enmeshed in (another)

criminal proceeding.”” Jd. at 710 (quoting Steffel, 415 U.S. at

462). As this Court said in Wooley:

In Younger the Court recognized that principles of

judicial economy, as well as proper state-federal

relations, preclude federal courts from exercising

equitable jurisdiction to enjoin ongoing state

prosecutions. /d., at 43, 91 S.Ct., at 750. However,

when a genuine threat of prosecution exists, a litigant

is entitled to resort to a federal forum to seek redress

for an alleged deprivation of federal rights. See Steffel

v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39

L.Ed.2d 505 (1974); Doran v. Salem Inn, Inc., 422

U.S. 922, 930-931, 95 S.Ct. 2561, 2567-2568, 45

L.Ed.2d 648 (1975). Younger principles aside, a

litigant is entitled to resort to a federal forum in

seeking redress under 42 U.S.C. s 1983 for an alleged

deprivation of federal rights. Jd. at 710.

The Wooley court explicitly affirmed that the holding in

Huffman was limited to the facts of that case. The plaintiff in

Huffman had the opportunity to have his constitutionai rights

fully litigated in the ongoing state proceeding, but chose to

circumvent those proceedings with a federal action. /d. at 711.

Younger was applied in Huffman to require exhaustion of

remedies because there was an avenue available to that

plaintiff to redress his grievances. Wooley, 430 U.S. at 711.

The Court noted that was not the case in Wooley, and

confirmed that there is no blanket prerequisite of exhaustion

of state remedies prior to bring a federal claim. Jd.‘

Similarly, in Trainor v. Hernandez, 431 U.S. 434, 441

(1977), this Court stated that the policy of equitable restraint |

embodied in Younger was “founded on the premise that

ordinarily a pending state prosecution provides the accused a

fair and sufficient opportunity for vindication of federal

constitutional rights.” Younger abstention should be applied

when there is a pending state action that provides an adequate

opportunity for the plaintiff to litigate his constitutional

claims. /d. at 446. “Dismissal of the federal suit naturally

presupposes the opportunity to raise and have timely decided

by a competent state tribunal the federal issues involved.” Jd.

at 441; See also Juidice v. Vail, 430 U.S. 327, 337(1977)

(“Here it is abundantly clear that appellees had an opportunity

to present their federal claims in the state proceedings. No

more is required to invoke Younger abstention.”’).

In Patsy v. Board of Regents of State of Florida, 457 U.S.

496, 516 (1982), this Court clearly articulated that,

AR SUMO EH VA EPC se Or RAY ere

Poh Fin tha a

* Defendants may not argue that Moore can just file another

“wholly prospective” complaint and have his federal issues }

determined. First, such a complaint would be limited to a facial

challenge against the Noise Ordinance which is the hardest

challenge to make to an ordinance. Second, Maynard brought an

“as-applied” challenge to the statute as applied to his conduct and

yet his Complaint was considered “wholly prospective”. Moore’s

Complaint in this case was not designed to annul the results of the

state proceedings, but was instead designed to vindicate his

constitutional rights. Such a complaint is prospective in nature and

falls neatly within Wooley’s exception to Younger. However, the

Fourth Circuit did not view Moore’s Complaint as wholly

prospective, instead directing dismissal of the entire Complaint.

The Fourth Circuit’s opinion conflicts with Wooley and other like-

minded precedent from this Court.

ee |

“exhaustion of state administrative remedies should not be

required as a prerequisite to bringing an action pursuant to [42

U.S.C.] § 1983.We decline to overturn our prior decisions

holding that such exhaustion is not required.” The panel

opinion attempted to distinguish Patsy by stating that the

Supreme Court’s decision in Ohio Civil Rights Commission

v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986)

instituted an exhaustion of state administrative remedies for

federal civil rights actions. App., 18a n4. However, in 1994,

this Court affirmed that “exhaustion of state remedies is not

a prerequisite to an action under §1983,” Heck v. Humphrey,

512 U.S. 477,481 (1994).

The Fourth Circuit’s decision that Younger abstention is

appropriate when there is no opportunity for the Plaintiff to

litigate his constitutional claims is not supported by the

Supreme Court’s holding in Huffman. The opinion also

directly conflicts with decisions subsequent to Huffman. For

these reasons, this Court must accept this Petition.

Il.

THIS CASE PRESENTS A MATTER OF GREAT

IMPORTANCE, JUSTIFYING REVIEW BY

THIS COURT.

The panel opinion stated that this case addresses “an issue

not directly addressed by Younger or its progeny.” App., 3a.

“The Supreme Court has not yet held that a federal court

should abstain under Younger from hearing a federal claim

when the plaintiff has failed to exhaust state administrative

remedies and defaulted on his opportunity to do so.” App.,

15a. Until this Court makes that determination, the panel

opinion will be binding precedent on this issue in the Fourth

Circuit. This is true even though had Moore been located in

a eee

the Fifth, Sixth or Eleventh Circuits, the result would have ;

been different and the courts in those circuits would not have ‘

abstained under Younger. There must be clear direction to '

individuals like Moore whose First Amendment rights are at

stake. The panel’s opinion creates an inter-circuit and intra-

circuit conflict that leaves individuals like Moore without

hope that their constitutional claims should be vindicated.

In Wooley v. Maynard, 430 U.S. 705 (1977), this Court

recognized the position that federal plaintiffs would be put in

if the Fourth Circuit’s reasoning would carry the day.

Accepting the argument that a federal plaintiff whose state

proceedings have become final is barred from bringing federal

suit under Younger places such individuals between the

proverbial rock and a hard place. In Wooley, this Court

recognized that, “Mr. Maynard now finds himself placed

‘between the Scylla of intentionally flouting state law and the

Charybdis of forgoing what he believes to be constitutionally

protected activity in order to avoid becoming enmeshed in

(another) criminal proceeding.”” Jd. at 710 (quoting Steffel v.

Thompson, 415 U.S. 452, 462 (1974)). Moore finds himself

in the same position as Maynard of either intentionally

flouting the Asheville Noise Ordinance or forgoing

constitutionally protected activity.

Younger was never intended to apply to situations where

state court proceedings are completely final and are not

pending in any way at the time of the federal action.* None of

the comity and federalism concerns outlined in Younger are

ow mee wee.

* Younger was also never intended to apply in situations, such as

here, where § 10-87 of the Asheville Code disclaims any interest in

exclusive enforcement of the Noise Ordinance. Such an explicit

statement makes irrelevant Younger’s concerns about federalism

and comity.

present in this case. The federal court does not have to be

concerned with comity and federalism when there are no

ongoing or pending state proceedings and when the state

explicitly disclaims such federalism concerns in the

enforcement of its ordinances. See Asheville Code §10-87.

The Fourth Circuit’s opinion in this case converted comity

and federalism into a weapon to be used by a Defendant in a

federal case even when there are no ongoing state proceedings

and when theye are no prospects for any future ongoing state

proceedings. Younger was intended to demonstrate respect for

state courts while still allowing the full and fair vindication of

federal rights. The Fourth Circuit’s decision in this case

leaves Moore without any forum to hear his constitutional

claims under the false rubrics of federalism and comity that

are simply not supported by the facts of this case. This Court

should grant review to protect the rights of federal plaintiffs

to have their constitutional rights protected by the federal

court in situations such as are present here where anindividual

is faced with the unenviable task of deciding whether to flout

an unconstitutional ordinance or forgo his right to free speech.

The issues in this case are of great public importance and

mandate review by this Court.

ere Ne eee

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully Submitted,

Mathew D. Staver

(Counsel of record)

Erik W. Stanley

Anita L. Staver

Rena M. Lindevaldsen

Mary E. McAlister

LIBERTY COUNSEL

210 East Palmetto Avenue

Longwood, FL 32750

(407) 875-2100

Attorneys for Petitioners

SOTO hoard TEC

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1003

CARROLL MOORE,

Plaintiff-Appellant,

CITY OF ASHEVILLE, NORTH

CAROLINA; JAMES L. WESTBROOK, JR.

in his official capacity as the City Manager of

Asheville, North Carolina; ASHEVILLE

POLICE DEPARTMENT,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CA-03-218-1)

Argued: November 30, 2004

Decided: January 25, 2005

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed and remanded by published opinion. Judge

NIEMEYER wrote the opinion, in which Judge LUTTIG and

Judge KING joined.

COUNSEL

ARGUED: Mathew D. Staver, LIBERTY COUNSEL,

Longwood, Florida, for Appellant. Sharon Tracey Barrett,

PATLA, STRAUS, ROBINSON & MOORE, P.A., Asheville,

North Carolina, for Appellees. ON BRIEF: Michael Schmidt,

PATRICK HENRY JUSTICE CENTER, Laurinburg, North

Carolina; Erik W. Stanley, Rena M. Lindevaldsen, Anita L.

Staver, Joel L. Oster, LIBERTY COUNSEL, Longwood,

Florida, for Appellant. Curtis W. Euler, CITY ATTORNEY’S

OFFICE, Asheville, North Carolina, for Appellees.

CIT ST.

OPINION

NIEMEYER, Circuit Judge.

Carroll Moore, a carpenter from Tuckasegee, North

Carolina, regularly engages in street preaching in Asheville,

North Carolina, and elsewhere. In March and again in April

2003, Moore was cited for violations of Asheville’s noise

ordinance, Asheville, N.C.Code of Ordinances § 10-84, when

his preaching allegedly interfered with permitted events

taking place in Asheville’s public forums. In both instances,

Moore paid fines, which he did not appeal administratively or

to the state courts. Rather, after the time for exhausting state

remedies apparently had expired, he commenced this action

against the City of Asheville and its officials under 42 U.S.C.

§ 1983, alleging that his conduct was protected by the First

and Fourteenth Amendments to the U.S. Constitution and that

Asheville’s noise ordinance, as well as related ordinances,

was unconstitutional both on its face and as applied to his

circumstances. He seeks a declaratory judgment, injunctive

relief, and damages.

The district court denied the defendants’ motion to

dismiss but stayed the proceedings “pending the outcome off]

state court proceedings,” based on the doctrine of Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)

(holding that a federal court should generally refrain from

intervening in ongoing state criminal proceedings), and its

progeny.

Although this case raises an issue not directly addressed

by Younger or its progeny, or heretofore by our court, it

presents the same concerns for federalism and comity that

animate established Younger jurisprudence, and therefore we

conclude, as a “necessary concomitant” of Younger, that

abstention was appropriate. See Huffman v. Pursue, Ltd., 420

U.S. 592, 608, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). In

particular, we hold that a defendant to a coercive state

administrative proceeding must exhaust his state

administrative and judicial remedies and may not bypass them

in favor of a federal court pyoceeding in which he seeks

effectively “to annul the results” of a state administrative

body. /d. at 608-09, 95 S.Ct. 1200; see also Ohio Civil Rights

Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619,

627, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (applying

Younger to state administrative proceedings). Accordingly,

we affirm the district court’s application of the Younger

doctrine to the circumstances of this case, and, because state

proceedings have concluded, we remand this case to the

district court with instructions to dismiss the complaint in its

present form.

Moore has spent his weekends over the past seven years

preaching the Christian Gospel on streets, sidewalks, and

other public rights-of-way in North Carolina. On two

occasions, while preaching in public forums in the City of

Asheville, Moore was cited by police officers for violating

Asheville’s noise ordinance.

Asheville’s noise ordinance prohibits activity “on any

premises or public area in the city, which activity produces or

constitutes a noise disturbance on occupied neighboring

premises or public area.” Asheville, N.C., Code of Ordinances

§ 10-83. The ordinance defines “noise disturbance” as “any

unreasonably loud and raucous sound or noise which: (1)

Endangers or injures the health or safety of humans or

animals; (2) Endangers or injures personal or real property; or

(3) Disturbs a reasonable person of normal sensitivity.” Id. §

10-82. In addition to the general prohibition against noise

disturbances, the ordinance outlaws specific activities that

tend to “produce unreasonably loud and raucous noises,”

including “[s]treet vending or peddling” and “[t}he use of any

drum, loudspeaker or other instrument or device for the

purpose of attracting attention by creation of noise to any

performance, show, or sale or display of merchandise.” Jd. §

10-84.

An individual charged under and found to have violated

the noise ordinance can appeal to the Noise Ordinance

Appeals Board, id. § 10-86, and the decision of the Appeals

Board can be appealed further to the City Manager, id.

Finally, North Carolina common law allows judicial review

of the City Manager’s decision by a writ of certiorari issued

by a state Superior Court. See Russ v. Bd. of Educ., 232 N.C.

128, 59 S.E.2d 589, 591 (1950).

Moore received the first of his citations on March 29,

2003, when he began preaching near Pritchard Park while a

permitted peace rally was taking place. An Asheville police

officer told Moore that he would need to leave the area and

move to the other side of the street. Moore proceeded across

the street, as directed, but he continued to preach to the crowd

attending the peace rally. The officer then cited Moore for

engaging in “street vending or peddling” so as to cause a

noise disturbance, in violation of Asheville Ordinance §

10-84. The citation assessed a $50 fine, which Moore paid

without challenging the citation.

Moore received his second citation on April 19, 2003,

when he preached near City County Plaza, where a permitted

event was taking place. This citation charged that Moore was

“causing [a] disturbance by shouting a[nd] yelling at [the]

crowd during [a] permitted event.” He was again charged

under the noise ordinance, this time for using a “drum,

loudspeaker or other instrument or device for the purpose of

attracting attention by creation of noise to any performance,

show, or sale or display of merchandise.” Because it was

Moore’s second violation of the noise ordinance, the citation

assessed a fine of $100. Moore appealed this citation to the

Noise Ordinance Appeals Board, as authorized by Asheville

Ordinance § 10-86. After the Board affirmed the violation,

Moore paid the $100 fine and sought no further review of the

citation.

Rather than pursuing further his rights of state

administrative appeal and judicial review, Moore apparently

let the times for taking appeal from his citations lapse,” and he

* The record is not completely clear as to the status of

Moore’s right to appeal his second citation at the time he

commenced this action on August 28, 2003. The noise

ordinance gave Moore 15 days from the date of the citation

(April 19, 2003) to seek review from the Appeals Board. The

ordinance also specifies that Appeals Board hearings shall

occur within 15 days of the notice of appeal and that

)

commenced this action in federal court on August 28, 2003.

In his complaint, which names the City of Asheville, its City

Manager, and its police department as defendants, Moore

facially challenges the constitutionality of Asheville’s noise

ordinance and related ordinances and challenges the noise

ordinance as applied to him in March and April 2003. He

alleges that the ordinances violated and continue to violate his

freedom of speech, his right peaceably to assemble, and his

right to the free exercise of religion, as secured by the First

and Fourteenth Amendments.

In his complaint, Moore recites the defendants’ actions on

both March 29, 2003 and April 19, 2003, when he was cited

for violations of the noise ordinance, and he alleges that he

continues to engage in street preaching and “fears repeated

civil or criminal citations.” He alleges further that Asheville’s

“Noise Disturbance Policy, as applied, has caused and will

continue to cause, [him] to suffer actual and impending

irreparable injury and damage” and that he has incurred

“constitutional and monetary damages as a result of

Defendants’ actions.” The resulting damages, he alleges, were

both “direct and consequential.” For relief, Moore requests an

injunction prohibiting the defendants “from enforcing the

“decisions shall be issued and served within ten days of the

hearing.” Asheville, N.C., Code of Ordinances § 10- 86(e)(1).

Under that schedule, therefore, Moore’s 10-day period to

appeal to the City Manager would have expired sometime in

late June 2003. We cannot presume with certainty, however,

that the schedule established by the ordinance was in fact

followed because the ordinance gives the Appeals Board the

power to extend, by order, “[t]he times for conducting

hearings and issuing decisions.” Jd.

policies against Plaintiff’; a declaratory judgment declaring

that the noise ordinance is invalid on its face and “as applied

by Defendants insofar as it prohibits Plaintiff from street

preaching”; and an award of “such damages as are reasonable

and just under the circumstances as a direct and proximate

result of the Defendants’ violations of Plaintiff's

constitutional rights.” In addition to challenging the noise

ordinance, Moore also facially challenges related statutes that

were not enforced against him, including Asheville’s public

speaking and picketing ordinances.

On the City of Asheville’s motion to dismiss, the district

court dismissed the claims against the City Manager because

they were redundant with claims against the City itself and the

claims against the Asheville Police Department because,

under North Carolina law, the department is not a person

capable of being sued. It also dismissed the claims

challenging the public speaking and picketing ordinances

because Moore failed to demonstrate a “credible threat of

prosecution” under them. The court, however, denied the

motion to dismiss the remainder of the complaint against the

City, concluding rather that, under the holding of Younger v.

Harris, it should abstain from determining Moore’s remaining

claims against the City. Accordingly, the court stayed the case

“pending the outcome of the state proceedings.” By this time,

it was certain that no state proceedings were pending and that

the times for appealing the citations had elapsed.

From the district court’s November 13, 2003 order, Moore

filed this appeal, challenging only the district court’s order

staying his claims against the City under the Younger

doctrine.

Because the district court stayed Moore’s claims, rather

than dismissing his complaint, we initially must consider

whether the district court’s November 13, 2003 order is a

final judgment so as to give us jurisdiction over Moore’s

appeal. Section 1291 of Title 28 grants courts of appeals

appellate jurisdiction over “final decisions of the district

courts,” and a “final decision” is one that “ends the litigation

on the merits and leaves nothing for the [district] court to do

but execute the judgment.” Catlin v. United States, 324 U.S.

229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). In Quackenbush

v. Allstate Insurance Co., 517 U.S. 706, 713, 116 S.Ct. 1712,

135 L.Ed.2d 1 (1996), however, the Supreme Court held that

a district court order that stayed federal court proceedings

pending the outcome of state court proceedings was

immediately appealable even though it did not fit comfortably

within the definition of a final judgment. The finality of the

order entered in this case is yet more certain because the

effect of the district court’s order to stay, pending the

outcome ofa state proceeding, effectively ended the litigation

in view of the facts that no state court proceedings were

petding at the time of the district court’s order and the

administrative “judgments” were no longer appealable.

Accordingly, we conclude that we have jurisdiction to

review the district court’s order.

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Stated simply, the Younger v. Harris doctrine holds that

a federal court should abstain from interfering in a

state proceeding, even though it has jurisdiction to

reach the merits, if there is (1) an ongoing state

judicial proceeding, instituted prior to any substantial

progress in the federal proceeding; that (2) implicates

important, substantial, or vital state interests; and (3)

provides an adequate opportunity for the plaintiff to

raise the federal constitutional claim advanced in the

federal lawsuit.

Nivens v. Gilchrist, 319 F.3d 151, 153 (4th Cir.2003) (citing

Middlesex County Ethics Comm. v. Garden State Bar Ass'n,

457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)).

In Younger itself, after the plaintiff had been indicted under

the California State Syndicalism Act but before he was tried,

the plaintiff filed a federal action seeking to enjoin the state

proceedings on the ground that the Syndicalism Act violated

the U.S. Constitution. After the lower federal courts enjoined

the state court proceedings, the Supreme Court reversed and

instructed that “the normal thing to do when federal courts are

asked to enjoin pending proceedings in state courts is not to

issue such injunctions” unless the federal plaintiff

demonstrates either that he will suffer irreparable injury that

is “both great and immediate” or that the state statute is

“flagrantly and patently” unconstitutional. Younger, 401 U.S.

at 45, 53, 91 S.Ct. 746. Relying on equitable principles, the

Supreme Court concluded that the federal plaintiff seeking the

equitable remedy of an injunction failed to demonstrate that

the state proceedings threatened him with injury that would

remain unremedied if the state proceedings terminated in his

favor. Jd. at 54, 91 S.Ct. 746. The Court, however, did not

rely only on equitable principles. It was also concerned about

the “more vital” notion of federalism and comity implicated

by interfering with ongoing state proceedings:

This underlying reason for restraining courts of equity

from interfering with criminal prosecutions is

reinforced by an even more vital consideration, the

notion of ‘comity,’ that is, a proper respect for state

functions, a recognition of the fact that the entire

country is made up of a Union of separate state

governments, and a continuance of the belief that the

10a

National Government will fare best if the States and

their institutions are left free to perform their separate

functions in their separate ways.

Id. at 44, 91 S.Ct. 746 (emphasis added). This underlying

policy heightened the degree of irreparable injury a plaintiff

had to show to obtain such an injunction--namely, that the

state statute was “flagrantly and patently” unconstitutional or

that it was being enforced in “bad faith,” in a harassing

manner, or in “any other unusual circumstance that would call

for equitable relief.” Jd. at 54, 91 S.Ct. 746.

Moore contends first that the district court erroneously

applied the doctrine of Younger v. Harris because that

doctrine applies only to protect ongoing state proceedings

from federal interference. He points out that there were no

pending state proceedings at the time because he had forgone

the opportunity to appeal both the first citation by paying the

$50 fine and the second citation by not appealing to the City

Manager within the time allowed by the ordinance. Similarly,

he argues, at the time of the district court’s decision to

abstain, the City administrative bodies and the state courts

were “doing nothing related to [his] Noise Ordinance

citations[;] they plan{ned] on doing nothing related to the

citations, nor could they [have done] anything in the future

related to the citations.”

Before addressing Moore’s argument that the lack of any

pending state proceedings renders Younger inapplicable, we

are prompted by Moore’s emphasis on the finality of the

administrative decisions in this case to consider first two

separate, but closely related doctrines: res judicata, see

Huffman, 420 U.S. at 607-08 n. 19, 95 S.Ct. 1200, and the

Rooker-Feldman doctrine, as Moore himself has suggested.

It is now established by federal common law that federal

courts will apply res judicata to unreviewed determinations

lla

of state administrative agencies if the State itself would do so.

See Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct.

3220, 92 L.Ed.2d 635 (1986) (holding that “when a state

agency acting in a judicial capacity resolves disputed issues

of fact properly before it which the parties have had an

adequate opportunity to litigate, federal courts must give the

agency’s factfinding the same preclusive effect to which it

would be entitled in the State’s courts” (internal quotation

marks and citation omitted)). The Court drew on the rationale

of the full-faith-and-credit provisions of 28 U.S.C. § 1738 and

the Full Faith and Credit Clause of the U.S. Constitution, U.S.

Const. art. IV, § 1, to adopt a federal common law principle

that serves the values of both repose and federalism. /d. at

798-99, 106 S.Ct. 3220. Thus, if North Carolina were to give

its own unreviewed determinations of administrative agencies

preclusive effect, so too would a district court in a federal

action. But res judicata was not raised as a defense before the

district court, and that court accordingly did not address the

question of its applicability. See Huffman, 420 U.S. at 607-08

n. 19, 95 S.Ct. 1200.

The Rooker-Feldman doctrine might likewise be

considered to bar a federal action from in effect reviewing

state administrative agency “judgments.”’ Because the

> As we summarized the Rooker-Feldman doctrine in

American Reliable Insurance Co. v. Stillwell, 336 F.3d 311

(4th Cir.2003), “a ‘party losing in state court is barred from

seeking what in substance would be appellate review of the

state judgment in a United States district court.’” Jd. at 316

(quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114

S.Ct. 2647, 129 L.Ed.2d 775 (1994)). Although federalism

and comity surely attend application of the Rooker-Feldman

doctrine, the doctrine operates principally to preserve the

12a

decision of an administrative agency can be appealed

vertically by petitioning the state courts and the U.S. Supreme

Court for review, it might be argued that the Rooker-Feldman

doctrine should apply to administrative “judgments” as it does

to court judgments--i.e., to bar what in effect would become

a lateral review of a state agency “judgment” in a U.S. district

court. Again, however, this issue was neither presented to the

district court nor decided by it. Moreover, while we have

never considered the question, other courts of appeals have

concluded that the Rooker-Feldman doctrine does not apply

to administrative “judgments,” limiting its application only to

state court judgments. See, e.g., Van Harken v. City of

Chicago, 103 F.3d 1346, 1348-49 (7th Cir.1997); Narey v.

Dean, 32 F.3d 1521, 1525- 26 (11th Cir.1994); Ivy Club v.

Edwards, 943 F.2d 270, 284 (3d Cir.1991); Scott v. Flowers,

910 F.2d 201, 208 (Sth Cir.1990).

More important to the issue before us are the subtle

distinctions to be made between the policies underlying res

judicata and the Rooker-Feldman doctrine, on the one hand,

and those underlying the Younger doctrine, on the other.

Although res judicata and Rooker-Feldman bar federal courts

from reconsidering state court judgments, those doctrines are

not designed specifically to promote respect for state

structure of appeals from state courts to the United States

Supreme Court under 28 U.S.C. § 1257(a) and to bar any

proceeding that would functionally amount to a lateral appeal

to a United States district court. See Stillwell, 336 F.3d at

316-17. For this reason, the Rooker-Feldman doctrine

prohibits a district court even from “consideration of ‘issues

actually presented to and decided by a state court.” Jd. at 317

(quoting Plyler v. Moore, 129 F.3d 728, 731 (4th Cir.1997)).

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substantive policies, and they thus applyregardless of whether

the state judgment implicates a substantive state interest. The

Younger doctrine, on the other hand, addresses both concerns

as demonstrated by the Supreme Court’s extension of

Younger beyond the context of state criminal proceedings to

only those state proceedings that implicate equally weighty

state interests.

In extending Younger to prescribe abstention in favor of

state civil actions, the Supreme Court in Huffman, 420 U.S.

592, 95 S.Ct. 1200, 43 L.Ed.2d 482, was mindful that the

doctrine was originally applied to protect the state interests

represented in criminal prosecutions. Consequently, it

extended the Younger docirine only to civil cases in which

important state interests were at stake, such as a nuisance

action:

Strictly speaking, this element of Younger [the

reluctance of federal courts to interfere with a criminal

prosecution] is not available to mandate federal

restraint in civil cases. But whatever may be the

weight attached to this factor in civil litigation

involving private parties, we deal here with a state

proceeding which in important respects is more akin

to a criminal prosecution than are most civil cases.

The State is a party to the Court of Common Pleas

proceeding, and the proceeding is both in aid of and

closely related to criminal statutes which prohibit the

dissemination of obscene materials. Thus, an offense

to the State’s interest in the nuisance litigation is

likely to be every bit as great as it would be were this

a criminal proceeding.

Id. at 604, 95 S.Ct. 1200. Thus, recognizing that the State’s

nuisance action was a coercive civil proceeding to which the

State was a party, the Supreme Court concluded that federal

l4a

court interference would disrupt the State’s efforts “to protect

the very interests which underlie its criminal laws.” Jd. at 605,

95 S.Ct. 1200; see also Ohio Civil Rights Com’n, 477 U.S. at

628, 106/S.Ct. 2718 (holding that the “elimination of

prohibited sex discrimination is a sufficiently important state

interest” to bring state administrative proceedings by a civil

rights commission within the ambit of Younger ); Middlesex

County Ethics Comm., 457 U.S. at 434, 102 S.Ct. 2515

(holding that Younger protects ongoing state disciplinary

proceedings because the State “has an extremely important

interest in maintaining and assuring the professional conduct

of the attorneys it licenses”).

The case before us implicates not only concerns about

avoiding duplicative litigation and respecting the appellate

processes designed by Congress and the Asheville City

Council, but also concerns about respecting Asheville’s

efforts to enforce its substantive policies against noise

disturbances. Because Younger is the only doctrine that

addresses all of these concerns, and because neither res

judicata nor the Rooker-Feldman doctrine was raised in the

district court, we conclude that Younger is the doctrine most

completely applicable to the circumstances of this case.

‘ Although the Supreme Court has since extended Younger

beyond proceedings to which the State is a party, see, e.g.,

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519,

95 L.Ed.2d 1 (1987), it has done so only when the civil

proceedings “involv[e] certain orders that are uniquely in

furtherance of the state courts’ ability to perform their judicial

functions.” New Orleans Pub. Serv., Inc. v. Council of New

Orleans, 491 U.S. 350, 368, 199 S.Ct. 2506, 105 L.Ed.2d 298

(1989).

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15a

According to Moore, the fact that the state proceedings

concluded prior to his federal complaint undermines the

rationale behind Younger abstention. He states, “If Younger's

underpinnings rest on a desire of the federal courts to not

‘unduly interfere with the legitimate activities of the States,’

then once the state proceedings have become final, for

whatever reason, there is no justification for a federal court to

abstain because there is no interference with the legitimate

activities of the states” (quoting Younger, 401 U.S. at 44, 91

S.Ct. 746). He adds, “Younger does not require abstention

merely because [he] at one point had a state remedy available

to him which he chose not to pursue because those state

proceedings are now completely final... Younger never

intended such an absurd result.”

Although Moore’s argument makes sense under

Younger’s original articulation, it overlooks the Supreme

Court’s extension of the doctrine in subsequent cases to give

full effect to the policies underlying Younger in the context of

completed state proceedings. In Huffman, the Supreme Court

applied Younger to bar a federal action, even when the state

court proceedings had ended by the time the federal complaint

was filed, so long as the federal complaint was designed “to

annul the results of a state trial.” Huffman, 420 U.S. at 609,

95 S.Ct. 1200. It is true that the Supreme Court has not yet

held that a federal court should abstain under Younger from

hearing a federal claim when the plaintiff has failed to

exhaust state administrative remedies and defaulted on his

opportunity to do so. The Court did, however, suggest such an

application in Huffman and applied the Younger doctrine in

the face of pending administrative proceedings in Ohio Civil

Rights Commission, 477 U.S. at 628-29, 106 S.Ct. 2718.

In Huffman, the plaintiff filed a federal § 1983 action to

enjoin, on U.S. constitutional grounds, enforcement ofa state

l6a

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court civil judgment entered against him, declaring that his

theater was a nuisance because it showed pornographic films.

Noting that the plaintiff had failed to appeal the judgment to

the state appellate court, the Supreme Court held thai the

lower federal court should have abstained from enjoining the

enforcement of the judgment under the Younger doctrine.

The strict holding of Huffman applied Younger to bar

federal intervention into a state coercive civil proceeding

when the plaintiff filed his federal complaint after the state

judgment had been rendered but before the time for appealing

had run its course. Although it was unclear whether the state

court judgment had become nonappealable before the federal

court entered its injunction judgment, the Supreme Court

suggested that that fact was not critical to the application of

the Younger doctrine:

We need not, however, engage in such inquiry. For

regardless of when the Court of Common Pleas’ j

judgment became final, we believe that a necessary

concomitant of Younger is that a party in appellee’s

posture must exhaust his state appellate remedies

before seeking relief in the District Court, unless he

can bring himself within one of the exceptions as

specified in Younger.

420 US. at 608, 95 S.Ct. 1200. The Court’s lack of concern

about the relative timing of the federal and state court

proceedings was deliberate to allow the Court to maintain its

focus on the core Younger concerns of (1) whether the federal

action was “duplicative,” (2) whether it cast a “direct

aspersion on the capabilities and good faith of state appellate

courts,” (3) whether it was “disruptive” of the State’s

important interests, and (4) whether the federal action was

“designed to annul the results of [the] state trial.” Jd. at

608-09, 95 S.Ct. 1200.

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17a

In the case before us, Moore sought federal court

intervention apparently after the state administrative

“judgment” had become non-appealable by reason of his

failure timely to take available state avenues of review. To

apply Younger to this circumstance might stretch Huffman

slightly beyond its strict holding. But we conclude that any

differences between the timing in this case and in Huffman do

not alter the proper legal analysis. We continue to focus on

Younger’s policy of commanding federal restraint when the

federal action is duplicative, casts aspersion on state

proceedings, disrupts important state enforcement efforts, and

is designed to annul a state proceeding.

By initiating this suit in federal court after the state

administrative agency determined that he had violated the

noise disturbance ordinance, Moore seeks to relitigate a

dispute that has already been resolved and to receive as

damages the amounts that he paid as fines. Moreover, to the

extent that Moore in this case seeks to annul or trample on the

results of state administrative proceedings, he interferes with

the State’s interest in enforcing its substantive laws as well as

its interest in enforcing those laws through available

administrative procedures and in its own courts. That Moore

did not avail himself of state-provided avenues for review can

only cast aspersion on the State’s “capabilities and good

faith,” Huffman, 420 U.S. at 608, 95 S.Ct. 1200, and deprive

the State of “a function which quite legitimately is left [to the

state appellate bodies], that of overseeing [agency]

dispositions of constitutional issues which arise in civil

litigation over which they have jurisdiction,” id. at 609, 95

S.Ct. 1200. Federal court intervention would also disrupt the

City’s efforts to enforce its substantive policy against noise

disturbances

Thus, regardless of whether state appellate remedies were

18a

still available at the time Moore filed suit in federal court or

whether he had already defaulted on such remedies, the

federal court intervention that he sought would be duplicative,

would disrupt the State’s substantive policies, would offend

the State’s appellate processes, and would undo what the

State has done by a now-nonappealable order. Accordingly,

we conclude that under Huffman, the Younger doctrine

applies to bar federal court reconsideration of state coercive

proceedings even when the state proceedings have ended, as

long as the federal proceeding casts aspersion on the state

proceedings or annuls their results.

The final step to application of the Younger-Huffman

doctrine to this case, however, requires consideration of

whether the exhaustion principles imposed by the Huffman

Court to protect state appellate court proceedings apply as

well to protect state appellate administrative proceedings. To

conclude that they do, we rely on the Court’s decision in Ohio

Civil Rights Commission, 477 U.S. 619, 106 S.Ct. 2718, 91

L.Ed.2d 512. There, the Supreme Court held that Younger

required federal courts to abstain in favor of pending state

administrative proceedings.* Rejecting the plaintiffs

* Generally, claimants bringing suit in federal court under 42

U.S.C. § 1983 need not exhaust their administrative remedies.

See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 102 S.Ct.

2557, 73 L.Ed.2d 172 (1982). In Ohio Civil Rights

Commission, however, the Court distinguished remedial state

administrative proceedings, which it had addressed in Patsy,

from those that are coercive, concluding that Younger requires

federal courts to abstain in favor of pending state

administrative proceedings that are coercive in nature. 477

U.S. at 627 n. 2, 106 S.Ct. 2718. The administrative

proceedings against Moore were unquestionably coercive, as

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argument that abstention in favor of such proceedings was

inappropriate because state law did not authorize the agency

to address constitutional challenges, the Court explained that

abstention was nonetheless appropriate because the agency

could “construe its own statutory mandate in the light of

federal constitutional principles” or the plaintiff could raise its

constitutional claims in “state-court judicial review of the

administrative proceeding.” /d. at 629.

We find the rationale behind the Court’s holding in Ohio

Civil Rights Commission equally applicable where the

administrative proceedings are no longer pending because of

the plaintiff's failure to exhaust his administrative appellate

remedies. In particular, by failing to pursue administrative

appellate remedies, the plaintiff short-circuits both the

agency’s ability to interpret its statutes in conformity with the

Constitution and the staie courts’ ability to correct

constitutionally infirm agency decisions.

At bottom, we conclude that the Younger principles were

properly applied in this case to bar federal court intervention

in state administrative proceedings even when the defendant

to those proceedings had failed to exhaust available

administrative appeals, thereby defaulting on his appellate

rights. Such a holding rests, we conclude, on the rationales of

Huffman and Ohio Civil Rights Commission, which extended

Younger to circumstances like those before us.

At oral argument, Moore seemed to concede the

application of the Younger principles to unexhausted but

completed administrative proceedings, and he redirected his

were those in Ohio Civil Rights Commission, and the Patsy

principle is therefore inapplicable.

20a

argument more forcefully to his second contention that his

complaint does not look retrospectively on the state

enforcement proceedings against him and therefore does not

seek to challenge or annul them. Indeed, as he argues, his

complaint is forward-looking, filed in an effort to declare

Asheville’s ordinances unconstitutional for future application.

In his brief, he maintains that if he is not able to prosecute this

action for such prospective relief, he would “be left to either

flout the Asheville noise ordinance or forgo his constitutional

right to free speech.” “Abstaining in this case,” he states,

“would have the absurd and unintended result of leaving

Moore with no remedy for the violation of his constitutional

rights.”

Of course, if Moore is correct about his characterization

of his complaint, he is correct in arguing that the Younger

doctrine should not be applied to stay this action. See Wooley

v. Maynard, 430 U.S. 705, 711, 97 S.Ct. 1428, 51 L.Ed.2d

752 (1977) (noting that Younger does not bar a wholly

prospective federal action even if the plaintiff failed to

exhaust his state appellate remedies on a prior conviction). In

Wooley, the federal plaintiff had been convicted of violating

a state statute and had already served his sentence when he

brought suit in federal court, seeking a declaratory judgment

that the statute under which he had been convicted was

unconstitutional and an injunction enjoining the State from

prosecuting him in the future under the statute. Jd. at 708-09,

97 S.Ct. 1428. Because the federal plaintiff sought

prospective relief against the threat of future prosecution and

did not seek to “have his record expunged, or to annul any

collateral effects” of his conviction, the Supreme Court held

that Younger did not require the federal court to abstain even

though the plaintiff had failed to seek review of his conviction

in the state appellate court. Jd. at 710-11, 97 S.Ct. 1428.

2la

While Moore’s argument rests on sound legal principles,

we disagree with his characterization of his complaint as

wholly prospective. To be sure, his complaint does request a

declaratory judgment and an injunction from future

prosecution, and such relief may be based on allegations in

the complaint that Moore’s street preaching is ongoing. But

the complaint also seeks to annul the effects of the prior state

administrative proceedings to the extent that Moore seeks a

declaratory judgment that the City of Asheville

unconstitutionally applied its ordinances to cite him in the

past and demands direct and consequential monetary damages

from the City for its actions.

Moore’s complaint lays out in some detail the City’s

actions in citing him for violation of the noise ordinance, once

in March and again in April 2003. He alleges that both of the

City’s enforcement actions were illegal inasmuch as they

relied on an ordinance that was unconstitutional under the

First Amendment, and he asserts that these enforcements

caused him monetary damages, both direct and consequential.

For example, he repeatedly alleges in his complaint that

Asheville’s noise ordinance “as applied, has caused ...

Plaintiff to suffer actual ... injury and damage”; that “Plaintiff

has and will continue to suffer ... monetary damages as a

result of [the City’s] actions”; that he has “in the past and will

continue to suffer in the future, direct and consequential

damages.” And in his prayer for relief, he demands “such

damages as are reasonable and just under [the] circumstances

as a direct and proximate result of [the City’s] violations of

Plaintiff's constitutional rights.”

These demands for monetary damages in respect to the

City’s actions are retrospective in that they seek to

compensate Moore for injury that has already occurred; they

look backward toward a wrong committed in the past. Cf

22a

Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39

L.Ed.2d 662 (1974) (explaining that a remedy that is

“measured in terms of a monetary loss resulting from a past

breach of a legal duty” is retrospective for purposes of

Eleventh Amendment immunity). Obviously such an award

would annul the effects of the State’s proceedings by

essentially refunding to Moore part or all of the fines he paid

in connection with his citations. Because Moore’s complaint

in its present form is not limited to seeking prospective relief,

it does not fit within the Wooley v. Maynard exception to

Younger’s exhaustion requirement. Thus, the district court

correctly applied Younger in abstaining from proceeding

further under Moore’s complaint as it is drafted.

In sum, Moore’s complaint challenging Asheville’s noise

ordinance is broad, alleging both past conduct by the City,

which he contends was illegal and damaging, and ongoing

unlawful conduct. For relief, he seeks a declaration that the

City’s enforcement in the past was illegal and continues to be

illegal; that the City be enjoined; and that the City pay him

direct and consequential money damages for its past conduct.

To the extent that Moore’s complaint looks back on the City’s

past actions and demands compensation for them, it seeks to

annul what has already been determined by two police

officers and the Asheville Noise Ordinance Appeals Board.

Even though no state proceedings were pending when Moore

filed his federal complaint--because he had let the times for

appeal lapse--we conclude that his efforts in this case to cast

aspersion on state processes and to annul the results of

administrative proceedings were properly barred by the

district court under Younger-Huffman. Accordingly, we

affirm.

Because no avenues are now open for Moore to exhaust

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state administrative and judicial appeals with respect to his

two citations, his federal complaint must be dismissed in its

present form. Accordingly, we remand to permit the district

court to modify its order in this regard. Of course, Moore is

not barred from attempting to pursue wholly prospective relief

in federal court as authorized by Wooley v. Maynard.

AFFIRMED AND REMANDED.

24a

United States District Court,

W.D. North Carolina,

Asheville Division

Carroll MOORE, Plaintiff,

CITY OF ASHEVILLE, NORTH CAROLINA;

James L. Westbrook, Jr., in his official capacity as the

City Manager of Asheville, North Carolina;

and Asheville Police Department, Defendants.

No. CIV. 1:03CV218.

Nov. 13, 2003.

MEMORANDUM OF OPINION

THORNBURG, District Judge.

THIS MATTER is before the Court on the Plaintiff's

motions for declaratory judgment, preliminary injunctive

relief, and waiver of posting security to obtain a preliminary

injunction, filed on August 28, 2003, and the Defendants’

Motion to dismiss, filed October 6, 2003. Responses have

been filed, and the matters are ready for resolution.

I. STATEMENT OF FACTS

Plaintiff Carroll Moore, a carpenter who resides in

Tuckasegee, North Carolina, has regularly engaged in street |

preaching for the past seven years. Verified Complaint for

Declaratory Judgment, Preliminary and Permanent Injunctive

Relief and Damages (“Complaint”), 9§ 9, 14, 17. Plaintiff

describes his “street preaching” as “[sharing] his faith by

verbal means with those he meets on the street, sidewalks and

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other public right-of-ways.” Jd., J] 16.

On the afternoon of March 29, 2003, Plaintiff began

preaching near Pritchard Park, in downtown Asheville, North

Carolina, on a public right-of-way. Jd., J 28. At that time, a

permitted event was taking place in Pritchard Park. /d., ¥ 30.

A police officer told Plaintiff that he would have to move to

the other side of the street to continue his preaching. Jd., J 31.

Plaintiff did so, and although he claims he was not selling any

type of merchandise and was not soliciting donations, he was

later cited for “street vending or peddling” in violation of §

10-84 of the Asheville City Code of Ordinances (“Code”). Jd.,

{7 32, 33, 35; Exhibit I, attached to Complaint. Plaintiff was

fined $50, which he paid. /d., { 36.

On the afternoon of April 19, 2003, Plaintiff again began

preaching at the City County Plaza in downtown Asheville.

Id., 4 37. A pennitted event was taking place in front of City

Hall. Jd., | 39. An Asheville police officer cited Plaintiff for

using a “drum, loudspeaker or other instrument or device for

the purpose of attracting attention by creation of noise to any

performance, show, or sale or display of merchandise” in

violation of Code § 10-84. Id., § 40; Exhibit J, attached to

Complaint. Plaintiff contends that he was not using a drum,

loudspeaker, or any other instrument or device. Jd., ] 42. The

fine assessed was $100. Jd., | 41. Before paying the fine,

Plaintiff appealed the citation to the Noise Ordinance Appeals

Board, which upheld the citation. Jd., {J 44-45. Thereafter,

Plaintiff paid the $100 fine. /d., 46.

Plaintiff contends several Code provisions are

unconstitutional on their face and/or as applied. The first is §

16-4 (“Public Speaking Ordinance”), which provided that

No person shall deliver a sermon, lecture, address, or

discourse or give any public demonstration, exhibition

or entertainment nor shall any person ... advertise any

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entertainment, show, or public sale ... on the streets,

alleys, sidewalks, public squares or any public

grounds of the city, without having first obtained the

written permission of the city manager. Such

permission may at any time be revoked by the city

manager if in his opinion the good morals and order

of the city so demand.

Exhibit A, attached to Complaint. Plaintiff was not charged

under this ordinance, and the City of Asheville repealed the

Public Speaking Ordinance on October 14, 2003. Defendants’

Supplemental Memo In Support of Motion to Dismiss, filed

October 17, 2003.

Plaintiff further contends that §§ 16-113 and 16-116

(“Picketing Ordinances”) are unconstitutional, although he

was not cited under these ordinances. Section 16-113 defines

“picketing” as “the stationing of any person by standing,

lying, walking, sitting, kneeling, bending or in any other

similar manner at a particular place so as to persuade, or

otherwise influence another person’s actions or conduct, or to

apprise the public of an opinion or message.” Exhibit B,

attached to Complaint. Section 16-116 provides that picketing

is allowed provided that it is “conducted only on sidewalks or

other city-owned areas normally used or reserved for

pedestrian movement,” that “[p]icketers ... observe the right

of non-picketers to utilize the public rights-of-way,” and that

“[p]icketers shall walk in single file and not abreast.” Exhibit

C, attached to Complaint. It also states that “[p]icketers are

encouraged to provide notice to the chief of police of intent to

picket.” /d. Finally, it provides that when “the free passage of

any street or other public area in the city shall be obstructed

by picketers” or “by a crowd,” the “persons picketing” or the

“persons composing such crowd” “shall disperse or move

along when directed to do so by a police officer.” Jd.

OC es

» al See) end

PQ Oe Te a ee

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However, “[n]othing in this section shall prohibit any person

from reconvening after dispersing so long as free passage of

any street or other public area is not obstructed.” Jd.

Finally, Plaintiff claims that §§ 10-83-10-85 (“Noise

Ordinances”) are unconstitutional as applied to him. Section

10-83 provides that “[e]xcept as allowed in this article, no

person shall willfully engage in any activity on any premises

or public area in the city, which activity produces or

constitutes a noise disturbance on occupied neighboring

premises or public area.” Exhibit D, attached to Complaint.

More specifically, § 10-84 bans, among other things, “[s]treet

vending or peddling” and “[t]he use of any drum, loudspeaker

or other instrument or device for the purpose of attracting

attention by creation of noise to any performance, show, or

sale or display of merchandise.” Exhibit F, attached to

Complaint. However, § 10-85 specifies that “[uJnamplified

noncommercial speeches made from a fixed location in

non-residentially zoned areas” do not violate § 10-83. Exhibit

G, attached to Complaint.

Section 10-86 provides for a Noise Ordinance Appeals

Board (“Appeals Board”) to which a person charged under the

Noise Ordinances may appeal. Section 10-86 also provides

that a decision of the Appeals Board may be appealed to the

City Manager. Under North Carolina General Statutes §

1-269, an individual is entitled to request the superior court to

grant certiorari and review a decision of the city manager

pertaining to violations of the Noise Ordinances. See Russ v.

Bd. of Educ. of Brunswick County, 232 N.C. 128, 130, 59

S.E.2d 589, 591 (1950).

II. PROCEDURAL HISTORY

As stated above, Plaintiff filed his complaint, along with

motions for declaratory judgment, preliminary injunctive

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relief, and waiver of posting security to obtain preliminary

injunctive relief on August 28, 2003. The Defendants moved

to dismiss under the Younger abstention doctrine and Federal

Rule of Civil Procedure 12(b) on October 6, 2003.

III. DISCUSSION

A. Motion to dismiss

1. The Noise Ordinances.

Defendants claim that the doctrine adopted in Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),

mandates that this Court abstain from hearing Plaintiff's

claims regarding the Noise Ordinances. Under Younger, a

federal court must not interfere with a state proceeding by

awarding injunctive or declaratory relief where the proceeding

is ongoing, implicates important state interests, and provides

an adequate opportunity for the plaintiff to litigate his federal

claims. Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116

(1982); Martin Marietta Corp. v. Maryland Comm. on

Human Relations, 38 F.3d 1392, 1396 (4th Cir.1994).

Plaintiff argues there is no ongoing state proceeding

because he did not appeal his initial citation and has ceased

pursuing the appeal of his second citation. Plaintiff's

Memorandum of Law in Opposition to Defendants’ Motion

to Dismiss the Complaint, filed October 23, 2003, at 3.

Plaintiff's argument raises the issue of whether the mere

availability of a remedy at the state level, even if a plaintiff is

not pursuing it, constitutes an ongoing state proceeding for

the purpose of Younger. Although other circuits may hold

otherwise, see Thomas v. Texas State Bd. of Medical

Examiners, 807 F.2d 453 (Sth Cir.1987); cf. also Peachlum v.

City of York, Pennsylvania, 333 F.3d 429 (3rd Cir.2003), a

district court in the Fourth Circuit has clearly held that the

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availability of a remedy at the state level does constitute an

ongoing state proceeding. Phillips v. Virginia Bd. of

Medicine, 749 F.Supp. 715, 724-30 (E.D.Va.1990). This is

the position most consistent with the Supreme Court’s

interpretation of Younger. The Supreme Court has

acknowledged that its precedent “suggests, perhaps, that an

administrative proceeding to which Younger applies cannot

be challenged in federal court even after the administrative

action has become final” if the federal plaintiff still has

remedies in the state courts. New Orleans Public Serv., Inc.,

v. Council of the City of New Orleans, 491 U.S. 350, 370 n.

4, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). Although the

Court in New Orleans Public Service stated that such a

suggestion came in dicta and did not constitute binding

precedent, two justices beiieved that the previous

“suggestion” was, in fact, binding precedent. Jd., at 374, 109

S.Ct. 2506 (Rehnquist, C.J., concurring); Jd., at 374-75, 109

S.Ct. 2506 (Blackmun, J., concurring). Since Supreme Court

precedent so “suggests” and since a court in this Circuit has

so held, this Court holds that an available state remedy, even

if the federal plaintiff does not pursue it, is an ongoing state

proceeding for Younger purposes.

Furthermore the present case is a more obvious one for

abstention than Phillips and New Orleans Public Service. In

those cases, the federal plaintiffs had actually exhausted their

administrative remedies, and their cases were between the

administrative and state levels. In the present case, Plaintiff

has failed to exhaust his administrative remedies; he failed to

appeal the first citation to the Appeals Board and failed to

appeal the second one to the City Manager. Therefore, the

present proceedings have even more the feel of “pending”

proceedings than did the proceedings in Phillips and New

Orleans Public Service.

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Since there are pending state proceedings, the Court must

abstain under Younger if the state proceedings implicate

important state interests and give Plaintiff an opportunity to

litigate his federal claims. Middlesex, supra. Plaintiff, quite

correctly, does not argue that either of these factors is absent.

For the purposes of Younger analysis, “important state

interest’ is defined broadly, and courts look to “the

importance of the generic proceedings to the State.” New

Orleans Public Serv., supra, at 365, 109 S.Ct. 2506. For

example, in Younger, the Supreme Court did not look to the

importance of California’s interest in preventing a person

from distributing handbills; it looked t» Califomia’s interest

in “ ‘carrying out the important and necessary task’ of

enforcing its criminal laws.” Jd. (quoting Younger, 401 U.S.

at 51-52, 91 S.Ct. 746). North Carolina has an important

interest in reviewing and enforcing the decisions of the state

and municipal agencies. Therefore, the state proceeding

implicates an interest that is important to the State of North

Carolina. Furthermore, since “state courts have the solemn

responsibility, equally with the federal courts to guard,

enforce, and protect every right granted or secured by the

constitution of the United States,” Steffel v. Thompson, 415

U.S. 452, 460-61, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)

(internal citations and quotations omitted), the proceeding in

state court would provide Plaintiff with adequate

opportunities to raise his federal claims for injunctive and

declaratory relief. Therefore, this Court must abstain from

hearing those claims.

The Court further notes that abstaining in this cases

advances Younger’s policy of preventing federal courts from

deciding constitutional questions where state courts may

interpret the law in a way that makes a constitutional

determination unnecessary. O'Neill v. City of Philadelphia,

————ere

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32 F.3d 785, 791 (3rd Cir.1994). If it is true that Plaintiff's

speeches were unamplified non-commercial speeches from

fixed locations in non-residential areas (Code § 10-83), and

that he was not selling merchandise, soliciting donations, or

using a drum or loudspeaker (Code § 16-84), this Court is

confident that the state courts will properly apply the law. Not

only does Plaintiff seem to have a greater chance of success

arguing that the Code was misapplied than he does making

constitutional claims, success on those grounds would prevent

this Court from having to make a constitutional

determination. Furthermore, if Plaintiffs allegations as to his

conduct prove true and a state court were still to deny

Plaintiff's appeal, he would then have a stronger

constitutional case to bring in federal court.

Plaintiff points to Code § 10-87 for the proposition that he

may pursue remedies in federal court before exhausting all

administrative and state remedies. That section states:

Nothing in this article shall be construed to prevent or

limit any person from seeking any remedy available in

law or equity for activities that are or may be subject

to regulation by this chapter, or from pursuing said

remedy simultaneously with proceedings under this

chapter, nor shall any of the procedures specified

herein be a condition precedent to the initiation of any

legal action.

Exhibit 5, attached to Affidavit of James L. Westbrook, Jr.,

filed October 6, 2003. Assuming, arguendo, that this

provision does represent the desire of the City of Asheville to

circumvent Younger, the City would not have the power to do

so. As stated above, the State has an important interest in

reviewing the determinations made by state and municipal

agencies. The City of Asheville may not take away North

Carolina’s power to review those determinations. Therefore,

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despite the Code section recited above, the Court maintains

that it must respect North Carolina’s interest in enforcing and

reviewing agency decisions and that it must, therefore, abstain

from interfering with this ongoing state proceeding.

Plaintiff may argue that Younger should not apply because

of the Supreme Court’s holding in Patsy v. Bd. of Regents of

the State of Florida, 457 U.S. 496, 507, 102 S.Ct. 2557, 73

L.Ed.2d 172 (1982), that a plaintiffis not “compelled in every

case to exhaust state administrative remedies before filing an

action under [§ 1983].” Jd. In Patsy, however, the state

proceeding was a remedial one, rather than the coercive

proceeding present in this case, and the rule that the Court

announced in Patsy allowing § 1983 plaintiffs to file actions

in federal court before exhausting state remedies applies only

when the state proceeding is remedial. Ohio Civil Rights

Comm. v. Dayton Christian Sch., Inc., 477 U.S. 619, 627 n.

2, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (abstaining under

the Younger doctrine because “[uJnlike Patsy, the

administrative proceedings here are coercive rather than

remedial”); see also Cooper v. Bombela, 34 F.Supp.2d 693,

697 (N.D.II1.1999) (explaining that the Younger doctrine

exists to prevent federal courts from thwarting state efforts to

hold individuals accountable for violating their laws and that

Younger abstention, therefore, is only appropriate when the

federal plaintiff is the defendant in a state court action).

Because the underlying proceedings in this case are coercive

proceedings against the Plaintiff for violating the Noise

Ordinances, Patsy is inapplicable.

For the reasons outlined above, the Younger abstention

doctrine applies to Plaintiffs claims regarding the Noise

Ordinances. Therefore, this Court must refrain from granting

injunctive or declaratory relief that would interfere with the

state court proceedings. However, under Younger, it is not

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appropriate to dismiss actions containing claims for monetary

damages; district courts should stay such actions pending the

resolution of the state proceedings. Suggs v. Brannon, 804

F.2d 274, 279-80 (4th Cir.1986) (“[I]n order to afford

plaintiffs a day in court, they should be allowed to maintain

their actions for damages.... A stay is appropriate.””); Traverso

y. Penn, 874 F.2d 209, 213 (4th Cir.1989) (“Under our

decisions, the appropriate course is to abstain by staying

proceedings on monetary as well as injunctive and declaratory

claims.”); Stubbs v. Foley, 998 F.2d 1010 (table), 1993 WL

261975, *2 (4th Cir.1993) (“Generally, when a plaintiff has

failed to exhaust state court remedies, the case is dismissed

rather than retained on the docket pending exhaustion.

However, we direct the district court to stey this case pending

exhaustion of state court remedies to guard against a statute

of limitations problem.” (internal citations omitted)); Deakins

v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 98 L.Ed.2d

529 (1988) (declaring that the Third Circuit’s rule that district

courts should stay rather than dismiss claims for damages is

“sound”). Therefore, the Court will stay Plaintiff's claims

based on the Noise Ordinances pending the outcome of the

state proceedings.

2. The Public Speaking and Picketing Ordinances.

The Defendants contend that Plaintiff lacks standing to

challenge the Public Speaking Ordinance and the Picketing

Ordinances. “A plaintiff who challenges a statute must

demonstrate a realistic danger of sustaining a direct injury as

a result of the statute’s operation or enforcement.” Babbitt v.

United Farm Workers National Union, 442 U.S. 289, 298, 99

S.Ct. 2301, 60 L.Ed.2d 895 (1979). It is true that “[w]hen the

plaintiff has alleged an intention to engage in a course of

conduct arguably affected with a constitutional interest, but

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proscribed by a statute, and there exists a credible threat of

prosecution thereunder, he ‘should not be required to await

and undergo a criminal prosecution as the sole means of

seeking relief.’” Jd. (quoting Doe v. Bolton, 410 U.S. 179,

188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)). However, when

plaintiffs “do not claim that they have ever been threatened

with prosecution, that a prosecution is likely, or even that a

prosecution is remotely possible,” the mere existence of a law

that causes them to “feel inhibited” does not give those

plaintiffs standing. Younger, 401 U.S. at 42, 91 S.Ct. 746.' In

cases where the Supreme Court has allowed plaintiffs to

challenge statutes without being charged under them, the

plaintiffs usually have shown a threat of prosecution. Virginia

v. American Booksellers Ass’n., Inc., 484 U.S. 383, 392, 108

S.Ct. 636, 98 L.Ed.2d 782 (1988) (A law had very recently

been passed that was “aimed directly at plaintiffs.”); Steffel v.

Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505

(1974) (“Unlike three of the appellees in Younger [ ],

petitioner ... has been twice warned to stop handbilling ... and

has been told by the police that if he again handbills ... he will

likely be prosecuted.”). In short, “[t]he Supreme Court has

made it abundantiy clear that one challenging the validity of

a criminal statute must show a threat of prosecution ... [and

that] the threat must be credible.” Doe v. Duling, 782 F.2d

' The precise holding in Younger is that a law causing such

inhibition does not give plaintiffs standing to invoke a federal

court’s equitable power to enjoin a pending state prosecution.

Younger, supra. It was in Babbitt that the Supreme Court held

that the existence of such a law does not confer standing on

plaintiffs to challenge the law. Babbitt, supra, at 299, 99 S.Ct.

2301.

Ee ee Se ae ee eee i

35a

1202, 1205-06 (4th Cir.1986) (internal quotation marks

omitted).

In the present case, Plaintiff has alleged no credible threat

of prosecution under either the Picketing Ordinances or the

Public Speaking Ordinance. With respect to the Picketing

Ordinances, Plaintiffs conduct does not appear to violate the

ordinances in any way. The Picketing Ordinances do not

regulate what people say but merely prohibit people from

blocking public right-of-ways. The pleadings make no

mention of Plaintiff preaching with anyone else; therefore, his

concerns about not being allowed to be abreast of a fellow

speaker are not well founded. It simply stretches the

imagination to see how Plaintiffs conduct violates the

Picketing Ordinances, and since no government official has

threatened to apply those ordinances to Plaintiff, there is no

credible threat of prosecution. Therefore, Plaintiff lacks

standing to make claims based on the Picketing Ordinances.

Although Plaintiff's conduct may have technically

violated the now-repealed Public Speaking Ordinance, there

was no credible threat of prosecution under that ordinance

either. The language above from Younger makes it clear that

a plaintiff must allege something beyond the mere existence

of a law to establish a credible threat of prosecution. See,

Younger, supra. In Younger, even the fact that California was

prosecuting another person under the challenged law was not

enough to show a credible threat of prosecution as to other

plaintiffs. Jd. Here, Plaintiff has made no allegation that the

law was applied to anyone else or that anyone threatened to

apply the law to him. As such, he lacks standing to challenge

the Public Speaking Ordinance.

The Court understands that “when a licensing statute

allegedly vests unbridled discretion in a government official

over whether to permit or deny expressive activity, one who

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is subject to the law may challenge it facially without the

necessity of first applying for, and being denied, a license.”

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Even if the

repealed Public Speaking Ordinance did give “unbridled

discretion” to a government official, the Court finds no

precedent to support the notion that the relaxed standing

requirement from City of Lakewood does away with the

requirement that a plaintiff face a credible threat of

prosecution. In fact, the reason for relaxing the standing

requirement is to counteract the “chilling” effect which occurs

when a censor with unbridled discretion “intimidates parties

into censoring their own speech.” /d., at 757, 108 S.Ct. 2138.

If there is no allegation that the plaintiffor anyone else will be

prosecuted under a statute giving such discretion to a censor,

then there cannot be the chilling effect that the relaxed

standing requirement is meant to counteract. Here, Plaintiff

has made no such allegation. Therefore, the relaxed standing

requirement from City of Lakewood is unnecessary and

inapplicable.

Even if Plaintiff could have challenged the Public

Speaking Ordinance before it was repealed, the case clearly

became moot when the Asheville City Council repealed the

ordinance on October 14, 2003. Supreme Court cases on the

issue of whether repealing an ordinance moots constitutional

challenges to that ordinance have not been consistently

decided. In one line of cases, the Supreme Court classified the

repeal of an ordinance as “voluntary cessation” of a

challenged action and held that, in general, repealing the

challenged statute will not moot the case. City of Mesquite v.

Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71

L.Ed.2d 152 (1982); Northeastern Florida Chapter of

Associated Gen. Contractors of America v. City of

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Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d

586 (1993). However, there are numerous Supreme Court

cases that hold that repealing a challenged ordinance does, in

fact, moot the challenge. Diffenderfer v. Central Baptist

Church of Miami, Fla., Inc., 404 U.S. 412, 414, 92 S.Ct. 574,

30 L.Ed.2d 567 (1972); Bigelow v. Virginia, 421 U.S. 809,

817-18, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Kremens v.

Bartley, 431 U.S. 119, 129, 97 S.Ct. 1709, 52 L.Ed.2d 184

(1977); Pope v. Illinois, 481 U.S. 497, 501-02, 107 S.Ct.

1918, 95 L.Ed.2d 439 (1987); Massachusetts v. Oakes, 491

U.S. 576, 583-84, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989);

Lewis v. Continental Bank Corp., 494 U.S. 472, 478, 110

S.Ct. 1249, 108 L.Ed.2d 400 (1990).

Lower courts have wrestled with this inconsistent

precedent and have most often concluded that Aladdin's

Castle and its progeny apply only when the legislative body

that repealed the challenged statute gives a court reason to

believe that it may reenact the statute or one substantially

similar if the challenge is dismissed. Kentucky Right to Life,

Inc. v. Terry, 108 F.3d 637, 645 (6th Cir.1997) (“This

exception properly applies only when a recalcitrant legislature

clearly intends to reenact the challenged regulation”); Native

Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th

Cir.1994) (“A statutory change ... is usually enough to render

a case moot .... The exceptions to this general line of holdings

are rare and typically involve situations where it is virtually

certain that the repealed law will be reenacted”). In a lengthy

discussion of the Supreme Court’s puzzling inconsistencies,

the Seventh Circuit noted that in both Aladdin’s Castle and

Northeastern Florida there was strong evidence that the

Defendant cities either intended to reenact similar legislation

or had already done so. Federation of Adver. Indus.

Representatives, Inc. v. City of Chicago, 326 F.3d 924, 930

38a

(7th Cir.2003). The Seventh Circuit further stated that

although “some language in the Aladdin's Castle majority

opinion perhaps suggests that mere repeal of a challenged

statute does not moot a case [,] ... in light of both previous

and subsequent cases, we find this language to be dicta and

therefore not controlling.” /d., at 930 n. 5.

This Court comes to the same conclusion as the Seventh

Circuit. Unless there is strong evidence that a legislative body

intends to reenact a repealed statute or one that is substantially

similar to it, repealing a statute will moot constitutional

challenges to that statute. In the present case, Plaintiff has not

alleged that the City Council plans to reenact the Public

Speaking Ordinance or a similar law. Therefore, even if

Plaintiff had standing to challenge the Public Speaking

Ordinance before it was repealed, his challenge would now be

moot.

In addition to arguing that repealing a statute is “voluntary

cessation” of a challenged action and, therefore, does not

render a case moot, Plaintiff argues that his constitutional

challenge to the Public Speaking Ordinance is not moot

because the challenged action is “capable of repetition yet

evading review.” Even when a plaintiff no longer has a

concrete stake in the litigation, courts will continue to hear a

case if “(1) the challenged action [is] in its duration too short

to be fully iitigated prior to its cessation or expiration, and (2)

there was a reasonable expectation that the same complaining

party would be subjected to the same action again.” Weinstein

v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350

(1975).

This doctrine, however, does not apply to the present case

for several reasons. First, this case is no more “capable of

repetition yet evading review” than any of the other cases

discussed above where courts found that repealing a statute

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rendered a challenge to that statute moot. Secondly, Plaintiff

has alleged nothing to support a contention that the City may

reenact the Public Speaking Ordinance or a similar statute.

Therefore, there is no reasonable expectation that Plaintiff

would be subjected to the same action again. Therefore, this

case is not one that is “capable of repetition yet evading

review.”

Therefore, even if Plaintiff originally had standing to

challenge the Public Speaking Ordinance, his challenges to

the constitutionality and future existence of that ordinance

would now be moot. Whether or not Plaintiff's claims for

damages could survive as claims that seek “relief from

alleged past rather than future unconstitutional action,”

Clarkson v. Town of Florence, 198 F.Supp.2d 997, 1004

(E.D.Wis.2002), is not for the Court to decide today since

Plaintiff lacks standing in the first place.

3. The Asheville Police Department

The Defendants ask the Court to dismiss the claims

against the Asheville Police Department because, under North

Carolina law, the Asheville Police Department is not a

“person” and, therefore, lacks the capacity to be sued. The

Defendants’ position is clearly supported by legal precedent,

and the Plaintiff makes no argument to the contrary. Coleman

v. Cooper, 89 N.C.App. 188, 192, 366 S.E.2d 2, 5 (1988).

Therefore, the Asheville Police Department will be dismissed

from this action.

4. Defendant Westbrook

The Defendants ask the Court to strike or dismiss the

claims against City Manager James Westbrook, Jr., in his

official capacity, as redundant since the Plaintiff is

maintaining an action against the City itself. In a similar

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scenario, the Fourth Circuit let stand a district court’s decision

to dismiss claims against government officials in their official

capacities as redundant where the local governments were

also defendants. See, Brissett v. Paul, 141 F.3d 1157 (table),

1998 WL 195945 (4th Cir.1998). The Court acknowledges

Plaintiff's contention that this is not the proper motion in

which the Defendants should argue that the claims are

redundant; but whether or not Defendants have made the

proper motion, the Court may strike redundant material from

the pleadings. See, Fed.R.Civ.P. 12(f); Coffman v. Wilson

Police Dept., 739 F.Supp. 257, 262-63 (E.D.Pa.1990). Since

there is no difference between suing Westbrook in his official

capacity and suing the City itself, the Court orders the claims

against Westbrook dismissed in the interest of judicial

economy and efficiency. Will v. Michigan Dept. of State

Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45

(1989).

B. Motions for preliminary injunctive relief and waiver of

posting security to obtain preliminary injunctive relief.

Since all of Plaintiff's claims have been either dismissed

or stayed, his motion for a preliminary injunction and his

motion for waiver of posting security to obtain a preliminary

injunction must be denied.

IV. ORDER

IT IS, THEREFORE, ORDERED that the Defendants’

motion to dismiss is hereby ALLOWED IN PART AND

DENIED IN PART as reflected in the Court’s Judgment filed

herewith.

IT IS FURTHER ORDERED that Plaintiff's motions for

preliminary injunction and waiver of posting security to

obtain a preliminary injunction are hereby DENIED as moot.

4la

JUDGMENT

For the reasons set forth in the Memorandum of Opinion

filed herewith,

IT IS, THEREFORE, ORDERED, ADJUDGED, AND

DECREED that the Defendants’ motion to dismiss Plaintiff's

complaint as to all claims involving the City of Asheville’s

Public Speaking and Picketing Ordinances is ALLOWED,

and such claims are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that the Defendants’ motion to dismiss Plaintiff's

complaint as to claims involving the City of Asheville’s Noise

Ordinances is DENIED, and such claims are hereby STAYED

pending the outcome on state court proceedings.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that the Defendants’ motion to dismiss Plaintiff's

claims against Defendants Westbrook and the Asheville

Police Department is ALLOWED, and the claims against

these Defendants are hereby DISMISSED WITH

PREJUDICE.

The Clerk is directed to remove this case from the Court’s

active docket and place same on the inactive docket until the

conclusion of state proceedings. The parties are directed to

notify the Court by the filing of an appropriate pleading when

such proceedings are completed and the matter is appropriate

for this Court’s review.

42a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1003

Filed February 23, 2005

CARROLL MOORE,

Plaintiff-Appellant,

Vv.

CITY OF ASHEVILLE, NORTH

CAROLINA; JAMES L. WESTBROOK, JR.

in his official capacity as the City Manager of

Asheville, North Carolina; ASHEVILLE

POLICE DEPARTMENT,

Defendants-Appellees.

On Petition for Rehearing En Banc

The appellant’s petition for rehearing en banc was

submitted to this Court. As no member of this Court

requested a poll on the petition for rehearing en banc,

IT IS ORDERED that the petition for rehearing en banc

is denied.

Entered for a panel composed of Judge Niemeyer, Judge

Luttig, and judge King.

For the Court,

/s/ Patricia S. Connor

CLERK

No. 04-1593

In The

Supreme Court of the Anited States

CARROLL MOORE,

Petitioner,

CITY OF ASHEVILLE,

NORTH CAROLINA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ry van

Sharon Tracey Barrett Robert W. Oast, Jr.

Counsel of Record Curtis W. Euler

Cindy M. Rice CrTy ATTORNEY'S OFFICE

PATLA, STRAUS, Post Office Box 7148

ROBINSON & MOORE, P.A. Asheville, NC 28802

29 North Market Street (828) 259-5610

Post Office Box 7625

Asheville, NC 28801

(828) 255-7641

Counsel for Respondent Counsel for Respondent

THE LEX GROUP°<¢ 1750 K Street, NW @ Suite 475 @ Washington, DC 20006

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

1. Whether a defendant in a coercive state

administrative proceeding is required under the

Younger doctrine to exhaust state administrative

and judicial remedies, or is permitted to bypass

these remedies in favor of a federal court action

seeking to effectively annul the results of the

state administrative body.

. Whether a federal court should abstain under

the Younger doctrine from hearing a federal

claim when the federal plaintiff has failed to

exhaust state administrative remedies and

judicial review, and has defaulted on the

opportunity to do so.

TABLE OF CONTENTS

PAGE

COUNTER-STATEMENT OF QUESTIONS

PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING THE PETITION

I. THERE IS NO NEED FOR THE COURT TO

RESOLVE THE PURPORTED CIRCUIT

SPLIT AT THIS TIME

Il. THE DECISION BELOW IS PLAINLY

CORRECT

III]. PETITIONER VASTLY OVERSTATES THE

IMPORTANCE OF THIS CASE

CONCLUSION

TABLE OF AUTHORITIES

PAGE(S)

CASES:

Alleghany v. McCartney,

896 F.2d 1138 (8th Cir. 1990)

Alleghany v. Pomeroy,

898 F.2d 1314 (8th Cir. 1990)

Bongiorno v. Lalomia,

851 F. Supp. 606 (D. N.J. 1994)

Bonner v. Prichard,

661 F.2d 1206 (11th Cir. 1981)

Communication Telesystems Internat’l v.

California Public Utilities Comm’n,

14 F. Supp. 2d 1165 (N.D. Cal. 1998)

Concerned Citizens of Vicksburg v. Sills,

567 F.2d 646 (5th Cir. 1978)

Fore Way Express, Inc. v. State of Wisconsin,

660 F. Supp. 310 (E.D. Wis. 1987)

Harper v. Public Service Commission of West Virginia,

291 F. Supp. 2d 443 (S.D.W.Va. 2003),

rev'd on other grounds,

396 F.3d 348 (4th Cir. 2005)

Huffman v. Pursue,

420 U.S. 592 (1975)

Juidice v. Vail,

430 U.S. 327 (1977)

Majors v. Engelbrecht,

149 F.3d 709 (7th Cir. 1998)

Maymo-Melendez v. Alvarez-Ramirez,

364 F.3d 27 (1st Cir.), cert. denied,

125 S. Ct. 110 (2004)

Middlesex County Ethics v. Garden State Bar Ass’n,

457 U.S. 423 (1982)

Moore v. City of Asheville,

290 F. Supp. 2d 664 (W.D.N.C. 2003),

affirmed and remanded,

eg Beate Bae...) UE nee ne me yee A CE 9

Moore v. Sims,

442 US. 415 (1979)

Murphy v. City of Manchester,

70 F. Supp. 2d 62 (D. N.H. 1999)

Nevada Entertainment Industries v. City of Henderson,

8 F.3d 1348 (9th Cir. 1993),

withdrawn and reh’g granted by,

21 F.3d 895 (9th Cir. 1994), later decided by,

26 F.3d 131 (9th Cir. 1994), cert. dented,

513 U.S. 1078 (1995)

New Orleans Public Serv., Inc. v.

Council of the City of New Orleans,

491 U.S. 350 (1989)

Norfolk & Western Railway Co. v.

Public Utilities Comm’n. of Ohio,

926 F.2d 567 (6th Cir. 1991)........00.0.c.ccccecccccsosenseseeees 4,9

O’Neill v. City of Philadelphia,

32 F.3d 785 (3d Cir. 1994), cert. denied,

514 U.S. 1015 (1995)

Ohio Civil Rights Comm'n v.

Dayton Christian Schools, Inc.,

477 U.S. 619 (1986)

Patsy v. Board of Regents of State of Fla.,

457 U.S. 496 (1982)

Phillips v. Virginia Bd. of Medicine,

749 F. Supp. 715 (E.D. Va. 1990)

San Remo Hotel, L.P. v.

City and County of San Francisco,

__US.__, 2005 WL 1421451 (June 20, 2005)

Sofer v. State of North Carolina Hertford Police Dept.,

935 F.2d 1287 (4th Cir. 1991)

Steffel v. Thompson,

415 U.S. 452 (1974)

Tafflin v. Levitt,

493 U.S. 455 (1990)

Tesmer v. Granholm,

333 F.3d 683 (6th Cir. 2003),

rev'd on other grounds,

Kowalski v. Tesmer,

__ US. __, 125 S. Ct. 564 (2004)

Thomas v. Texas State Bd. of Medical Examiners,

807 F.2d 453 (5th Cir. 1987)

Trainor v. Hernandez,

431 U.S. 434 (1977)

Wooley v. Maynard,

430 U.S. 705 (1977)

Younger v. Harris,

401 U.S. 37 (1971)

STATUTE:

N.C. Gen. Stat. § 1-259

RULES:

4th Cir. R. 36(b)

4th Cir. R. 36(c)

OTHER:

The Federalist, No. 82

STATEMENT OF THE CASE

The opinion of the Fourth Circuit Court of Appeals

accurately sets forth the facts and procedural history of

this case. Petitioner is a street preacher who was twice

cited for violating the City of Asheville’s noise

ordinance. Petitioner did not pursue the available

avenue of appeal through the City’s administrative

process under the ordinance, nor did he seek state

court judicial review of any final administrative

decision, as permitted by statute. N.C. Gen. Stat. § 1-

269. Rather, he paid the tickets, let the deadlines for

appeal elapse, and then filed suit in federal court

alleging that the City had violated his constitutional

rights. Among other things, he sought: (1) a

declaration that the City had, on two occasions,

unlawfully obstructed his constitutional rights, and (2)

direct and consequential damages resulting from the

City’s conduct. Pet. App. 2a - 7a.

Petitioner suggests that the “thrust and focus” of

his complaint was to seek prospective relief. Pet. 5. This

characterization of the complaint is inaccurate. As the

Court of Appeals explained, the complaint clearly

“seeks to annul the effects of the prior state

administrative proceeding” through a declaration that

the City unconstitutionally violated Petitioner’s rights

in the past. Pet. App. 21a. Further, the complaint, as

drafted, sought direct and consequential monetary

damages from the City for its past conduct. Id.

“he City filed a motion to dismiss based upon the

Younger abstention doctrine. Younger v. Harris, 401 US.

37 (1971). The district court ruled that Younger

applied, precluding the injunctive and declaratory

relief sought. However, the trial court found that

Younger abstention did not encompass Plaintiff's claims

for money damages and so stayed Plaintiff's claims for

money damages pending the conclusion of state

proceedings under the noise ordinance.

Petitioner appealed, contending that Younger

abstention was inappropriate because the state

proceeding was final and nonappealable. Pet. App. 10a.

Petitioner also argued that the complaint sought

prospective relief against future enforcement of the

noise ordinance, rendering Younger inapplicable. Pet.

App. 20a.

The Court of Appeals affirmed the trial judge,

based upon this Court's decisions in Huffman v. Pursue,

420 U.S. 592 (1975) and Ohio Civil Rights Comm'n v.

Dayton Christian Schools, Inc., 477 U.S. 619 (1986). Judge

Niemeyer’s opinion, which was joined in by Judges

Luttig and King, held that a defendant to a coercive

state administrative proceeding must exhaust his state

administrative and judicial remedies and may not

bypass them in favor of a federal court proceeding in

which he seeks effectively “to annul the results” of a

state administrative body. Pet. App. 3a. The Court of

Appeals found that Petitioner's complaint sought to

annul City administrative proceedings by seeking a

declaratory judgment that the City had

unconstitutionally applied its ordinances to Petitioner

and by demanding consequential damages. Pet. App.

21a. Thus, Younger barred the federal court action. The

trial judge was instructed to dismiss the case, as the

avenues for administrative and judicial appeal were no

longer available to Petitioner due to Petitioner's

inaction. Pet. App. 22a - 23a. Petitioner sought an en

banc review, but no member of the Court requested a

poll on the petition for rehearing. Pet. App. 42a.

REASONS FOR DENYING THE PETITION

This litigation does not warrant the Court's review.

Although Petitioner contends that the Fourth Circuit

decision conflicts with decisions from other circuits, the

extent of the conflict has been greatly exaggerated and

is insufficient to justify certiorari. The Fifth Circuit's

decision in Thomas v. Texas State Bd. of Medical

Examiners, 807 F.2d 453 (5th Cir. 1987) is stale and

discredited. All of the recent decisions from other

circuits represent a clear consensus on the question

presented, one entirely consistent with this Court's

precedents. If the Fifth Circuit heard the Thomas case

today, it would likely be decided differently due to

developments in the law during the past eighteen

years. Moreover, Petitioner’s attempt to portray this

litigation as being of great importance is overblown, as

this ruling applies only to a narrow category of

litigants who abandon available avenues of appeal in

the state court system in favor of duplicative federal

claims.

I. THERE IS NO NEED FOR THE COURT TO

RESOLVE THE PURPORTED CIRCUIT SPLIT

AT THIS TIME.

The conflict in the decisions of the Circuit Courts

was overstated in the petition. A clear consensus has

evolved during the past fourteen years in all of the

circuit decisions on point. There is no need for a

Supreme Court ruling on this issue, as there is no

confusion in the circuits. The Fifth Circuit decision in

Thomas and the Sixth Circuit decision in Norfolk &

Western Railway Co. v. Public Utilities Comm’n. of Ohio,

926 F.2d 567 (6th Cir. 1991) (hereafter “PLICO”) are

outdated, isolated aberrations without apparent weight

of authority, and will likely be overturned in light of

developments since they were decided.

The petition contends that there is a 3 - 3 split in the

circuits on this issue, i.e. opinions from the Fifth, Sixth

and Eleventh Circuits conflict with those of the Third,

Fourth and Eighth Circuits. Petitioner relies solely

upon Thomas and PUCO. No Eleventh Circuit case on

point was cited. Petitioner apparently believes that the

Eleventh Circuit would follow the Fifth Circuit's

decision on this issue. Pet. at 8. However, in Bonner v.

Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981), the

Eleventh Circuit adopted as binding precedent only the

Fifth Circuit decisions issued prior to September 30,

1981. The Thomas decision was not rendered until 1987,

six years later, and therefore need not bind the

Eleventh Circuit.}

Petitioner acknowledges two precedents from other

circuits on all fours with the Fourth Circuit decision

here: O'Neill v. City of Philadelphia, 32 F.3d 785 (3rd Cir.

1 Only one pre-1981 case from the Fifth Circuit was cited in the

petition. Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646 (5th

Cir. 1978). Sills turned upon Younger abstention issues involving

criminal prosecutions, not appeals from administrative agencies.

No case from the Eleventh Circuit holds in harmony with Thomas

and PUCO.

1994), cert. denied, 514 U.S. 1015 (1995) and Alleghany v.

Pomeroy, 898 F.2d 1314 (8th Cir. 1990). The petition

neglects to mention three additional circuit court

decisions in accord. Majors v. Engelbrecht, 149 F.3d 709

(7th Cir. 1998), Maymo-Melendez v. Alvarez-Ramirez, 364

F.3d 27 (1st Cir.), cert. denied, 125 S. Ct. 110 (2004) and

Alleghany v. McCartney, 896 F.2d 1138 (8th Cir. 1990)

(decided with Pomeroy, supra).

The purported conflict in the circuits has already

resolved itself - without the need for this Court's

intervention.

The Thomas case has been widely discredited in

many decisions during the past eighteen years. In

Thomas, the Fifth Circuit held that Younger abstention

did not preclude a doctor’s federal court challenge to a

state medical board’s final decision revoking his

license. The Thomas court noted the Supreme Court's

decision in Huffman, but drew a distinction between

that case and the Thomas case on the grounds that no

state court trial had yet taken place. Thomas, 807 F.2d at

455-6. The Thomas court concluded that a party to a

coercive administrative proceeding need not seek

judicial review of the final agency decision, but instead

could file a federal court case seeking to nullify the

results of the administrative proceeding. Id. at 456-7.

Eleven years later, the Seventh Circuit considered a

similar federal court challenge to a state medical

board’s decision regarding licensure of a health care

worker. Majors, supra. However, the Majors court held

that Younger abstention barred federal court review of

this state administrative proceeding. The Seventh

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.