Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 6455 -- George N. Leighton, Judge.
Eschbach and Posner, Circuit Judges, and Dumbauld, Senior District Judge.*fn*
Plaintiffs, who own and operate an adult bookstore in Cook County, Illinois, appeal from the district court's dismissal of their constitutional challenge to an Adult Use Ordinance adopted by the Cook County Board of Commissioners. Relying on the abstention doctrine of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), the district court dismissed plaintiffs' case because the county had filed a quasi-criminal action against plaintiffs in state court prior to any "proceedings of substance on the merits" in the federal action. We affirm the decision of the district court.
Operation of the plaintiffs' adult bookstore was made a nonconforming use under December 1981 amendments to the Cook County Zoning Ordinance. Immediately following adoption of the amendments, county zoning officials began to implement procedures outlined in the ordinance to eliminate plaintiffs' nonconforming use. Plaintiffs were notified that the bookstore was a nonconforming use. Plaintiffs then filed for a certificate of nonconformance, the equivalent of a variance, which would have allowed continued operation of the bookstore. After a public hearing, the Board of Zoning Appeals denied plaintiffs' application.
Shortly after the Board of Zoning Appeals denied their request for a certificate, plaintiffs filed suit in federal district court to challenge the constitutionality of the ordinance. On February 4, 1983, the district court denied a motion by the county to dismiss the action for lack of a case or controversy.
Concurrent with the federal district court's proceedings, county officials continued to implement the provisions of the ordinance. Plaintiffs were notified in late February that their nonconforming use had become an illegal use as of January 5, 1983, the end of a one-year grace period granted by the ordinance, and that continued operation of the bookstore would subject them to criminal prosecution. When plaintiffs failed to cease operations, the county filed a quasi-criminal action against plaintiffs in the Circuit Court of Cook County. In this action, the county sought the imposition of a fine of $200 for each day of illegal operation and an injunction against further operation of the bookstore.
After filing its quasi-criminal action, the county again sought dismissal of the plaintiffs' federal action. This time, however, they moved the district court to dismiss because federal courts should defer to state court proceedings involving the same issues. The federal district court granted the motion to dismiss and plaintiffs now appeal.
The doctrine announced in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), deals with the situation where a plaintiff is in federal court challenging the constitutionality of a criminal statute while the state is prosecuting the federal plaintiff in state court for a violation of that statute. The Supreme Court held in Younger that principles of equity, comity, and federalism require the federal court to abstain from hearing the federal action under these circumstances. Id. at 43-44. While Younger involved a state criminal prosecution, the doctrine has since been extended to quasi-criminal state actions as well. Trainor v. Hernandez, 431 U.S. 434, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977); Juidice v. Vail, 430 U.S. 327, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975).
When the state proceedings commence after the filing of the federal action, the district court must consider two factors before deciding whether to abstain or to proceed. First, the district court must abstain only if the state court proceedings will provide the federal plaintiffs with an adequate opportunity to raise their constitutional challenge to the ordinance. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S. Ct. 2515, 2522, 73 L. Ed. 2d 116 (1982). Second, the district court must consider the progress of the federal action. The district court must abstain if there have been no "proceedings of substance on the merits . . . in the federal court." Hicks v. Miranda, 422 U.S. 332, 349, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975). See also People of the State of Illinois v. General Electric Co., 683 F.2d 206, 212 (7th Cir. 1982) (dismissal required if the federal proceedings are not "well advanced"), cert. denied, 461 U.S. 913, 103 S. Ct. 1891, 77 L. Ed. 2d 282 (1983).
Neither side contests the fact that the quasi-criminal action is a forum in which plaintiffs may raise their constitutional challenge to the ordinance. The only issue, therefore, is whether the federal action in this case was so far advanced as to preclude abstention. The lower court expressly ruled that the "federal suit [was] not well advanced ...