# Petition for Writ of Certiorari — Moore v. City of Asheville > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0951%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 819 ## Text 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. vy 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 i 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. il 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 L 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 iv 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 v 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 ) aw 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 : l 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 2 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 3 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 4 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 5 ~ (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 6 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. ee 7 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. 8 REASONS FOR GRANTING THE PETITION I. 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 9 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 i0 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. 11 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 | 12 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 A 13 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 14 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 15 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. 16 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 ee 17 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 18 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. bi 19 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 20 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 ae 21 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 22 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 23 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 24 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 | 25 “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 26 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 ey 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. a 27 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 28 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 la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-1003 CARROLL MOORE, Plaintiff-Appellant, V. 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. 2a 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. 3a 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. I Moore has spent his weekends over the past seven years preaching the Christian Gospel on streets, sidewalks, and 4a 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 5a 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 ) 6a 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. Ta 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. II Because the district court stayed Moore’s claims, rather ee 8a 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. I eee ee ae eee 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 9a 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 ee 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)). eee ae ect = gd A OD ri l3a 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). ited dss te hg el teil a Ls. tid hailallap hss 5. te eee ee se ) y —— tT Oe ei. ie eee; CU! CU lee 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 pn l6a hate Cs 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. eI EN BAAN So Nain CONOR 6) An dt RA aid So PRES Ace in Ube 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 i b i i ¢ 4 | 4 4 hile D EMERG 20a SMES 0. 5 ye td hone 0 19a 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. IV 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. V 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 23a 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, v. 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 25a 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 26a 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 27a 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 28a 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 29a 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. 30a 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 3la 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, 32a 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 33a 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 34a 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 36a 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 37a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0951%3A1. Public record. Not legal advice.