The opinion of the court was delivered by: Grady, District Judge.
The defendants have moved to dismiss by reason of a pending state
suit. The motion is denied.
On January 13, 1981, the defendant Village of Downers Grove enacted
Ordinance No. 2489, the "Adult Uses Licensing Ordinance." This ordinance
provides that businesses that meet the definition of "Adult Uses" must
obtain a license before operating in Downers Grove. The plaintiffs,
Kit-Dal Cinema and its owner, Bonk, operate a movie theatre that presents
films which fall into the category of "Adult Uses." Plaintiffs were
required to comply with the ordinance by February 23, 1981. Plaintiffs
refused to comply and on February 17, 1981, filed the instant suit
seeking a declaratory judgment that the ordinance is unconstitutional and
an injunction preventing its enforcement by the Village. Plaintiffs
closed their theatre temporarily and requested a restraining order from
Judge Parsons. Judge Parsons denied this request on February 25, 1981,
and on that same day the Village filed an action in DuPage County Circuit
Court, No. 81 CH 170, to enjoin the operation of the theatre by reason of
Kit-Dal's failure to comply with the ordinance and obtain a license. That
same day, the Village then filed a motion in this court seeking dismissal
of the instant suit by reason of the pending state court suit.
On March 3, 1981, plaintiffs applied for and obtained a license for
"Adult Uses," thereby mooting the state court enforcement action.
However, on March 11, 1981, the Village filed an Amended Complaint in
state court, seeking a declaratory judgment that the ordinance is
constitutionally valid and an injunction prohibiting Kit-Dal from
violating it in the future. On March 25, 1981, Kit-Dal filed a motion to
dismiss in state court, which was denied on July 7, 1981. In denying the
motion, the state court stated, in part, "[t]hat if the case between the
parties which is before the federal court is not dismissed by the federal
court, Defendants shall have leave to resubmit their motion to dismiss to
Defendants argue in their motion that the present federal suit should
be dismissed by reason of the pendency of a state court action.
Defendants rely upon the doctrine enunciated in Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which requires that the
federal courts abstain from asserting jurisdiction over a suit when there
is a state enforcement proceeding pending at the time of the filing of
the federal suit.
In Younger, the Supreme Court dissolved an injunction issued by a
federal district court against a state criminal prosecution, which was
pending at the time the federal suit was filed. The Court held that a
"national policy" of "Our Federalism" and comity among the states and the
federal government forbids federal injunctive interference with state
enforcement proceedings unless the defendant would suffer "great and
immediate" irreparable injury. The court established standards for
determining when enjoining state prosecutions is proper, but for reasons
discussed herein, those standards are not applicable in the instant
The Court based its opinion upon the special interest the states have
in the orderly functioning of judicial proceedings to enforce state and
local statutes and ordinances free from interference by the federal
courts. A state defendant can always raise the constitutionality of the
ordinance as a defense in the state prosecution. Younger has been
affirmed and slightly expanded in subsequent cases to include
some cases in which the state prosecution was filed subsequent to the
filing of the federal suit. If no proceedings of substance have occurred
in the federal court, Younger requires that the federal court defer to
the state proceedings. Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct.
2281, 2291, 45 L.Ed.2d 223 (1975); Doran v. Salem Inn, Inc., 422 U.S. 922,
95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).
However, in contrast to criminal prosecutions, a state's interest in
the conduct of ordinary civil litigation, particularly where the only
issue is a federal constitutional question, may be no greater than a
federal court's interest in the orderly functioning of the federal
judicial system and the preservation of federal jurisdiction. In the
instant case, where there are concurrent federal and state civil suits,
the federal court must examine the substantive issues raised in order to
determine whether (a) there is a predominant state interest in the
litigation, see Louisiana Power & Light v. Thibodaux, 360 U.S. 23, 79
S.Ct. 1070, 3 L.Ed.2d 1058 (1960), or (b) there is an unsettled issue of
state law, the resolution of which would render unnecessary a decision on
the federal constitutional question, see Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496, 61 S.Ct. 648, 85 L.Ed. 971 (1941). Either
event would argue for federal abstention.
In the instant case, the initial enforcement proceeding has been
mooted. The Amended Complaint in the state suit addresses only a civil
question identical to the one raised in the instant federal
suit—the constitutionality of the disputed ordinance. Certainly the
state court's interest in resolving this question is no greater than the
interest of the federal court. In the absence of any predominant state
interest, unsettled question of state law, or other adverse effect on
comity or federalism (such as existed in Younger and Pullman), the prior
filing of a federal suit, being the initial plaintiff's choice of forum,
and an invocation of federal jurisdiction, carries great weight. Indeed,
even if the state suit, as amended, had beer filed first, Kit-Dal would
have been able to remove and invoke the federal question jurisdiction of
this court, since a federal question appears on the face of the amended
The federal courts have a "virtually unflagging obligation . . . to
exercise the jurisdiction given them." Colorado River Water Conservation
District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47
L.Ed.2d 483 (1976), and a concurrent obligation to preserve that
jurisdiction when properly invoked. The Village herein seeks to utilize
the Younger doctrine as merely a tactic to evade the proper jurisdiction
of this court.
The motion to dismiss is denied. We do not address the question of
whether the state court proceedings should be enjoined "in aid of [our]
jurisdiction" pursuant to 28 U.S.C. § 2283, since the state court has
indicated its willingness to reconsider its denial of Kit-Dal's ...