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September 10, 1990

DR. HELIO ZAPATA, Plaintiff,
NEIL HARTIGAN, et al., Defendants

John F. Grady, United States District Judge.

The opinion of the court was delivered by: GRADY


 This case is before us on plaintiff's motion for injunctive relief from prosecution and defendants' motion to dismiss plaintiff's complaint. We deny the former and grant the latter.


 Plaintiff Dr. Helio Zapata is a licensed obstetrician who has been practicing medicine in Illinois since 1971. On October 4, 1988, he was indicted for allegedly accepting "kickbacks" in violation of Ill. Rev. Stat. ch. 23, para. 8A-3(b) (1985) ("statute"). *fn1" Plaintiff filed this action challenging the constitutionality of the statute, both on its face and as applied to him, and seeking to enjoin his state court prosecution which is presently pending before Judge Earl Strayhorn in People v. Zapata, 88 CR 15461. Plaintiff asserts that the statute is unconstitutionally vague because neither the statute nor any other legislative act defined the term "kickbacks."

 On January 18, 1989, plaintiff filed a motion in state court to dismiss the indictment on the basis that the statute was unconstitutional as applied to him. On October 13, 1989, Judge Strayhorn denied the motion. Plaintiff's criminal trial is set to begin on September 12, 1990, and Judge Strayhorn has indicated that he will not grant a continuance based on the pendency of this litigation. Plaintiff informs us that an Illinois appellate court has recently upheld the constitutionality of the statute. See People v. Bynum, 197 Ill. App. 3d 959, 1990 Ill. App. LEXIS 594, 557 N.E.2d 238, 145 Ill. Dec. 468 (1st Dist. 1990). Plaintiff argues that in light of Judge Strayhorn's denial of his motion to dismiss and the Illinois appellate court's decision in Bynum, his pursuit of any state court remedy would be futile. Thus, plaintiff urges us to grant him a preliminary injunction enjoining the state from prosecuting him until we resolve the constitutionality of the statute.


 In considering a motion to dismiss, we accept as true all facts alleged in plaintiff's complaint and draw all reasonable inferences from the pleadings in favor of plaintiff. Gillman v. Burlington N. R.R., 878 F.2d 1020, 1022 (7th Cir. 1989). A motion to dismiss is appropriate "only if plaintiff cannot prove any set of facts upon which relief may be granted." Rankow v. First Chicago Corp., 870 F.2d 356, 357 n. 1 (7th Cir. 1989) (citing Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). We find that Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), mandates dismissal of plaintiff's complaint.

 Younger involved a federal plaintiff who requested an injunction against a state criminal proceeding in which he was a defendant. The Supreme Court held that a federal district court may not, save in exceptional circumstances, enjoin a pending state criminal proceeding. Younger, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746; see Gibson v. Berryhill, 411 U.S. 564, 575, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973); Allegheny Corp. v. Haase, 896 F.2d 1046, 1050, 1053 (7th Cir. 1990). For a federal court to interfere with a state court prosecution, the federal plaintiff must show an irreparable injury that is "both great and immediate." Younger, 401 U.S. at 46. The Court stated:

Certain types of injury, in particular, the cost, anxiety, and convenience of having to defend against a single criminal prosecution, could not by themselves be considered 'irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. Thus, in [ Watson v. Buck, 313 U.S. 387, 400, 85 L. Ed. 1416, 61 S. Ct. 962 (1941)], we stressed:
Federal injunctions against state criminal statutes . . . are not to be granted as a matter of course, even if such statutes are unconstitutional. "No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid." Beal v. Missouri Pacific R.R. Corp., 312 U.S. 45, 49, 85 L. Ed. 577, 61 S. Ct. 418.

 Id. Thus, the injury alleged must be more than "'that incidental to every criminal proceeding brought lawfully and in good faith.'" Id. 401 U.S. at 49 (quoting Douglas v. City of Jeannette, 319 U.S. 157, 164, 87 L. Ed. 1324, 63 S. Ct. 877 (1943)). If the state prosecutes in bad faith or to harass, or where the statute involved is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it," id. 401 U.S. at 53 (quoting Buck, 313 U.S. at 402); Pincham v. Illinois Judicial Inquiry Bd., 872 F.2d 1341, 1349 (7th Cir.), cert. denied, 493 U.S. 975, 110 S. Ct. 497, 107 L. Ed. 2d 501 (1989), then injunctive relief would be proper.

 To determine whether Younger abstention should apply when particular state court proceedings are challenged, this circuit employs a three-part test. "A court can abstain if the impacted state proceedings satisfy the following requirements: (1) the judicial . . . state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges." American Fed'n of State, County, and Municipal Employees v. Tristano, 898 F.2d 1302, 1305 (7th Cir. 1990) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982)).

 There is no question that the state criminal proceeding is judicial in nature and is ongoing. Nor is there any doubt that the state proceeding implicates important state interests. The argument for applying Younger is strongest when the state is prosecuting a person for a crime. Haase, 896 F.2d at 1050. Thus, the only question is whether plaintiff has the opportunity to raise his constitutional challenges in the state proceedings. The burden is ...

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