Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 82 C 4715-Charles P. Kocoras, Judge.
Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Plaintiffs brought this suit, individually and on behalf of all exercise persons, grooms and hot walkers (collectively, "backstretchers") at Illinois race tracks, seeking declaratory and injunctive relief from certain investigative practices authorized by the Illinois Racing Board (the "Board") and carried out by the Illinois Department of Law Enforcement ("IDLE") on the ground that these practices violated the Fourth Amendment, as applied to the state of Illinois through the Fourteenth Amendment. The challenged practices included warrantless searches of the backstretchers' on-track dormitory rooms and investigatory stops and searches of the backstretchers' persons within the race track enclosure. Plaintiffs also challenged the Board's policy of granting them occupation licenses only upon their consent to these searches. The defendants argued that the plaintiffs lack a legitimate expectation of privacy owing to pervasive state regulation of the horse-racing industry, to the nature of the premises searched and to the plaintiffs' implied consent to the searches when they accepted their employment. The district court granted the plaintiffs' motion for a preliminary injunction and, later, enjoined the searches permanently on plaintiffs' motion for summary judgment. We affirm.
Backstretchers work at race tracks, feeding, grooming, exercising and generally taking care of the race horses. They are employed by the horses' trainers and licensed by the Board under authority vested in the Board by the Horse Racing Act of 1975 (the "Act"), Ill. Ann. Stat. ch. 8, para. 37 (Smith-Hurd Supp. 1987). Many of the backstretchers live in dormitory rooms located in the backstretch, which is the area where the horses are stabled. These rooms are owned by the race track and made available to the trainers and the backstretchers in their employ at no charge. Backstretchers do not have to live at the track, but many do so for reasons of convenience and economy.
Because backstretchers have contact with the race horses immediately before and between races, they are in a position to administer drugs or apply mechanical devices (called "buzzers") to the horses, both of which affect the speed of a horse and hence the outcome of a race. The Act forbids these practices. Ill. Ann. Stat. ch. 8, paras. 37-36, 37-37 (Smith-Hurd Supp. 1987). The Board and IDLE, which the legislature charged with the enforcement of the Act, Ill. Rev. Stat. ch. 8, para. 37-34 (1983), believe that warrantless searches of all backstretch areas, including the dormitories, and of licensees' persons is the only effective way of enforcing the statutory prohibitions against the use of drugs and buzzers. Backstretch areas and licensees are searched when IDLE has received a "tip" or when irregularities are noted in a horse's performance; searches are also performed at random. We have no reason to question the Board's representations about the threat posed by drugs and buzzers and its need to take strong measures against them.
In this respect, the Act vests in the Board broad authority to regulate the horse-racing industry in Illinois. Specifically,
The Board, and any person or persons to whom it delegates this power, is vested with the power to enter the office, horse race track, facilities and other places of business of any organization licensee to determine whether there has been compliance with the provisions of this Act and its rules and regulations.
Ill. Ann. Stat. ch. 8, para. 37-9(c) (Smith-Hurd Supp. 1987). Pursuant to its rulemaking powers, the Board has promulgated Thoroughbred Rules 322 and 25.19 (the "rules"), which employ identical language and read as follows:
(A) The Illinois Racing Board or the state steward investigating for violations of law or the Rules and Regulations of the board, shall have the power to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles, or other places within the track enclosure at which a meeting is held, or other tracks or places where horses eligible to race at said race meeting are kept, of all persons licensed by the Board, and of all employees and agents of any race track operator licensed by said Board; and of all vendors who are permitted by said race track operator to sell and distribute their wares and merchandise within the race track enclosure, in order to inspect and examine the personal effects or property on such persons or kept in such stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed operator, in accepting his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages they may have by virtue of any action taken under this rule. Any person who refuses to be searched pursuant to this rule may have his license suspended or revoked.
(b) The Illinois Racing Board delegates the authority to conduct inspections and searches, under this rule, to the Chief Investigator of the Illinois Racing Board and to Special Agents of the Illinois Bureau of Investigation, or other designees of the Department of Law Enforcement assigned, from time to time, to assist the chief Investigator in his duties.
The challenged searches were undertaken pursuant to this regulation.
The Act also empowers the Board to prescribe application forms and issue licenses to backstretchers. Ill. Ann. Stat. ch. 8, paras. 37-15, 37-20 (Smith-Hurd Supp. 1987). Prior to the entry of the preliminary injunction in this case, the license application form used by the Board quoted the text of the above Rules and conditioned the license's issuance upon consent to the searches authorized by the Rules.
The material facts about the searches of the named plaintiffs are undisputed.*fn1 Don Serpas, Raymond Johnson and Carl Waters are employed as grooms and live in residential quarters at Arlington Park Racetrack. Their residential quarters have been searched by IDLE agents; they have also been stopped and personally searched by IDLE agents within the race track enclosure. No evidence of crime was found during any of the challenged searches. The plaintiffs acknowledge that when they signed the license application forms, they consented to the searches. They also admit that they consented to each of the searches at the time it occurred. They claim, however, that they would not have consented to these warrantless searches if they had not been required to give consent in order to remain in a job as a backstretcher.
On July 30, 1982, these three plaintiffs filed a complaint in the Northern District of Illinois, naming as defendants present and former members of the board, the director of IDLE and certain unknown IDLE agents and seeking injunctive and declaratory relief. On September 24, 1982 they filed a motion for a preliminary injunction, which was granted in its entirety on June 16, 1983. This order of the district court enjoined the defendants from (1) conducting or authorizing searches of persons and residential quarters without a warrant or probable cause; (2) conducting or authorizing investigatory stops of backstretchers without a reasonable suspicion, based on articulable facts, that the backstretchers stopped were engaged in criminal activity; and (3) conditioning the issuance of occupation licenses to backstretchers upon consent to these searches. Memorandum Opinion and Order, Serpas v. Schmidt, No. 82-C-4715 (N.D. Ill. June 16, 1983).
On September 19, 1983 the trial court certified Serpas, Johnson and Waters as named representatives of a class consisting of all grooms, exercise persons and hotwalkers at Illinois racetracks. In August and October 1984, the parties filed cross-motions for summary judgment. The trial court filed a memorandum opinion, granting the plaintiffs' motion and entering a permanent injunction on July 11, 1985. Memorandum Opinion, Serpas v. Schmidt, 621 F. Supp. 734 (N.D. Ill. 1985). This appeal followed.*fn2
After examining the supplemental briefs, we have concluded that abstention is not appropriate in this case. As the dissent correctly points out, this circuit has held that it might be proper in some cases for an appellate court to order abstention even though neither party had raised this issue. See Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir. 1983). However, we do not think that it would be appropriate for us to order abstention sua sponte here. In the controversy before us, the federal courts are not "the lone guardian of the state's sovereign place under the Constitution," infra, p. 17; the defendants are state officials who raised no objection to having the claims against them litigated in federal court until this court itself raised the abstention issue. See Houston v. Hill, 482 U.S. 451, 55 U.S.L.W. 4823, 4828 n.16, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (U.S. June 15, 1987) (failure of defendant city to raise possibility of abstention until after it had lost on the merits before an appellate court undercut the force of the city's argument); Mazanec v. North Judson-San Pierre School Corp., 763 F.2d 845, 848-49 (7th Cir. 1985) (State defendants did not request abstention until the end of trial; this is "an independent argument against abstention." "If the responsible state officials are willing to litigate the case in federal court, that court does not have to force it back into state court.") (emphasis in original) (citation omitted).
In addition, there is a presumption in this circuit against abstaining once a case has gone to trial; this presumption holds at least "where neither party requested abstention before trial." Mazanec, 763 F.2d at 847. The district court in this case granted the plaintiffs' motion for a preliminary injunction in 1983 and enjoined the searches permanently in 1985 on plaintiffs' motion for summary judgment. The defendants did not raise an abstention issue during any of these proceedings, nor did they raise it before us. The dissent contends that Mazanec is not applicable to this case because Mazanec states that the presumption against abstaining may be rebutted if the state statute at issue could be interpreted narrowly and thus survive a constitutional challenge. Infra, p. 16 n.3. We believe, however, that the resolution of the constitutional issues in this case might well be necessary even if a state court found that the Act did not authorize the Rules. If the plaintiffs had validly consented to the searches or if they had a reduced expectation of privacy, it certainly could be argued that the defendants would not have needed an independent basis of authority under state law to conduct the searches. Thus, abstention might not produce a state law result which would be dispositive of the claims under the federal constitution.
A. Warrantless Searches of Dormitory Rooms
The Fourth Amendment protects against "unreasonable" searches and seizures. The reasonableness of a search depends upon a person's expectation of privacy in the place to be searched, provided that that expectation is one that society is willing to recognize as "reasonable." Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (Harlan, J., concurring). Appellants contend that the backstretchers' asserted expectation of privacy in their on-track dormitory rooms is not the sort of expectation that society recognizes as reasonable. They rely on historic state ...