Gregory A. Ahrensfeld and Mariluann H. Ahrensfeld, His Wife,et al., Plaintiffs-appellants, v. Donald Stephens et al., Defendants-appellees, 528 F.2d 193 (7th Cir. 1975)

This appeal questions the district court's dismissal of plaintiffs' constitutional attack on a municipality's taking of their property by eminent domain because condemnation proceedings were pending in state court.

Plaintiffs are property owners in the Village of Rosemont, Illinois, a suburb of Chicago, Illinois. Defendants are the Village of Rosemont and the individual members of its board of trustees. The Village is a unit of local government possessing home rule powers under the constitution and laws of the State of Illinois.

On October 30, 1973, the Village, through its board of trustees and pursuant to article VII of the Illinois Constitution of 1970, adopted Ordinance No. 73--10--30 granting itself eminent domain power as a home rule unit. On that same day, the Village adopted Resolution No. 73--10--30A authorizing it to acquire property by eminent domain for the construction of an athletic and convocation center. The resolution authorized the Village to file condemnation actions in state court to acquire the desired land.

Pursuant to this resolution, the Village instituted condemnation proceedings in state court against various property owners in the Village, including the plaintiffs. While these proceedings were pending, plaintiffs brought this action in federal district court seeking to stop the taking of their property. Plaintiffs brought this action under 42 U.S.C. § 1983 and invoked jurisdiction under 28 U.S.C. §§ 1331 and 1343 requesting injunctive, declaratory and monetary relief. Plaintiffs claim that the Village resolution authorizing the condemnation of their homes violates the fifth and fourteenth amendments of the Constitution in that it permits a taking for a private and not a public purpose.¹  Plaintiffs also maintain that section 9.7 of the Illinois Eminent Domain Act, Ill.Rev.Stat., ch. 47, § 9.7 (1975),²  is unconstitutional because it prohibits the consideration of the proposed commercial use of the acquired property in computing 'just' compensation. Plaintiffs seek to have the resolution and section 9.7 declared unconstitutional and the Village enjoined from continuing the state court condemnation proceedings under the authority of the resolution.³ 

Upon motion of the defendants, the district court dismissed the action against the Village on grounds that a municipality is not a 'person' under 42 U.S.C. § 1983⁴  and against the trustees for reasons of comity. The district court opined that '(a) civil rights action . . . is not appropriate . . . in an eminent domain controversy when there is ongoing litigation in State Court where the Plaintiffs' constitutional claims can be fully and fairly heard.' District Court's Memorandum Decision and Order at 2. From this order of dismissal, plaintiffs appeal. We affirm.

Ordinarily, when a litigant properly invokes one of the statutory grants of federal jurisdiction, a federal district court must assume and exercise jurisdiction over the litigant's claims. FSLIC v. Krueger, 435 F.2d 633, 637 (7th Cir. 1970). Under certain circumstances, however, a federal district court is nevertheless precluded from doing so. One such instance is where the litigant requests the federal court to enjoin proceedings in state court. An Act of Congress, 28 U.S.C. § 2283, provides that a federal court 'may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'

The Supreme Court in Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972), held that 42 U.S.C. § 1983 constitutes an 'expressly authorized' exception under section 2283. Therefore plaintiffs' section 1983 action is not barred by the anti-injunction statute. The Court in Mitchum, however, was careful to point out that while section 1983 may be an 'expressly authorized' exception to section 2283:

'we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state proceeding.' (407 U.S. at 243, 92 S. Ct. at 2162.)

A year earlier, the Court described these 'principles of equity, comity and federalism' in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). The Court explained that the 'longstanding public policy against federal court interference with state court proceedings' found its 'primary sources' in these principles. Id. at 43, 91 S. Ct. at 750. Comity, the Court stated, embodies:

'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 National Government will fare best if the States and their institutions are left free to perform their separate functions in separate ways.' (Id. at 44, 91 S. Ct. at 750.)

Federalism, the Court noted, represents:

'a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.' (Id.)

These principles of equity, comity, and federalism lie at the heart of the judge-made doctrine of abstention first fashioned in Railroad Commission v. Pullman Company, 312 U.S. 496 (1941) and later broadened in Younger v. Harris, supra, and its progeny. The question of when the doctrine of abstention should be invoked is a matter of discretion, Harman v. Forssenius, 380 U.S. 528, 85 S. Ct. 1177, 14 L. Ed. 2d 50 (1965), which must be approached on a case-by-case basis and not as a matter of the application of a general rule. Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964). The abstention doctrine allows a federal court to decline properly invoked jurisdiction because the rights asserted before it may be adjudicated in some other forum, but only, however, in narrowly limited 'special circumstances.' Propper v. Clark, 337 U.S. 472, 492, 69 S. Ct. 1333, 93 L. Ed. 1480 (1949); see generally Pell, Abstention--a Primrose Path by any Other Name, 21 DePaul L.Rev. 926 (1972). One of these special circumstances is the existence of pending state court proceedings in which the federal claims before the federal court can be properly adjudicated. Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973). Another is the susceptibility of a state statute attacked in federal court on constitutional grounds to a construction by a state court that would avoid or modify the constitutional questions. Harrison v. NAACP, 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959). We are of the opinion that both of these 'special circumstances' exist in the present case.

Central to the concerns prevalent in the principles of equity, comity, and federalism is the strong desire to avoid unnecessary interference and conflict with the sovereignty of the states.⁵  A logical corollary of this is that a federal court should refrain from interfering in ongoing state proceedings.⁶  See Glen Oaks Utilities, Inc. v. City of Houston, 280 F.2d 330 (5th Cir. 1960). Until recently, this concern has manifested itself most notably in situations where a federal court has been asked to interfere in pending state criminal proceedings. However, as noted by the Supreme Court in Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), several courts, including this court, have ordered abstention when the pending state proceedings were civil in nature. See Puerto Rico International Airlines, Inc. v. Silva Recio, 520 F.2d 1342 (1st Cir. 1975); Duke v. Texas, 477 F.2d 244 (5th Cir. 1973); Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973); Cousins v. Wigoda, 463 F.2d 603 (7th Cir. 1972); Hamar Theatres, Inc. v. Cryan, 393 F. Supp. 34 (D.N.J. 1975) (three-judge court). These cases indicate to us that the application of the 'principles of equity, comity, and federalism' is not limited solely to the pending state criminal proceeding situation, but may also call for abstention where the pending state proceeding is civil. Cf. Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974).

The discretion possessed by the district courts to interfere with state court proceedings 'should be exercised in the light of the historical reluctance of federal courts to interfere with state judicial proceedings.' Southern California Petroleum Corp. v. Harper, 273 F.2d 715, 718 (5th Cir. 1960). And the Supreme Court has admonished federal courts that 'interference with the orderly and comprehensive disposition of a state court litigation should be avoided.' Brillhart v. Excess Insurance Company, 316 U.S. 491, 495, 62 S. Ct. 1173, 1176, 86 L. Ed. 1620 (1942).

This respect and concern arises clearly in relation to a state's eminent domain system. In Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959), the Supreme Court noted the 'sensitive nature' of federal court intervention in a state's eminent domain system, remarking that eminent domain was 'intimately involved with state prerogative.' Id. at 28--29, 79 S. Ct. 1070. Several federal courts have opined that state eminent domain proceedings should not be interfered with by federal courts because their local nature makes interference unwise. In Creel v. City of Atlanta, 399 F.2d 777 (5th Cir. 1968), the court ordered the district court to abstain and not interfere in pending state court condemnation proceedings, stating:

'(T)he principal and essential issue is one properly for determination by the state courts. Not only is municipal eminent domain ordinarily a local matter, but it is difficult to imagine a situation where more confusion would arise than would be the case if the parties here were allowed to simultaneously pursue both this action and the state condemnation proceeding. (Id. at 779.)

Accord, Georgia v. City of Chattanooga, 264 U.S. 472, 44 S. Ct. 369, 68 L. Ed. 796 (1923); Harrison-Halsted Community Group v. Housing and Home Finance Agency, 310 F.2d 99, 103 (7th Cir. 1962); Green Street Association v. Daley, 373 F.2d 1, 6 (7th Cir. 1967); Elterich v. City of Sea Isle City, 477 F.2d 289 (3d Cir. 1973); Muskegon Theatres, Inc. v. City of Muskegon, 507 F.2d 199 (6th Cir. 1974).⁷ 

The fact that plaintiffs here raise federal constitutional claims against the Illinois eminent domain system does not preclude abstention. The Supreme Court in Mitchum v. Foster, supra, noted that section 1983, while an exception to the ban of section 2283, did not necessarily mandate the exercise of federal jurisdiction where the principles of equity, comity and federalism dictated otherwise. And the Court has approved abstention in other cases where federal constitutional claims were before a federal court. See, e.g., Harrison v. NAACP, supra; Askew v. Hargrave, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971); Gibson v. Berryhill, 411 U.S. 564, 573, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973).

The presence of a federal constitutional claim in the federal court action does not preclude that court's staying its hand because, as this court and others have repeatedly stated in the past, 'we must assume that an Illinois court would properly determine the merits of any federal issue properly presented to it.' Cousins v. Wigoda, 463 F.2d 603, 607 (7th Cir. 1972). See also Harrison-Halsted Community Group v. Housing and Home Finance Agency, supra, at 106; Georgia v. City of Chattanooga, supra, 264 U.S. at 483--84, 44 S. Ct. 369; Amalgamated Clothing Workers of America v. Richman Brothers, 348 U.S. 511, 518, 75 S. Ct. 452, 99 L. Ed. 600 (1955).

Illinois eminent domain procedure allows condemnees to question the public nature of the taking and to raise other defenses in the form of a 'traverse' or motion to dismiss the condemnor's petition. Ill.Rev.Stat., ch. 47, § 10; Board of Education v. City of Chicago, 402 Ill. 291, 298, 83 N.E.2d 714, 718--19 (1949). Since plaintiffs may raise the crux of their federal constitutional claims in the pending state proceedings, federal court intervention is unnecessary.⁸  Golden Dawn Shops, Inc. v. Department of HUD, 333 F. Supp. 874 (E.D. Pa. 1971); Georgia v. City of Chattanooga, supra, 264 U.S. at 483--84, 44 S. Ct. 369. It would be inappropriate for us or the district court below to assume that the Illinois courts would refuse to consider plaintiffs' federal constitutional claims once they were properly raised in those proceedings. Golden Dawn Shops, Inc. v. Department of HUD, 333 F. Supp. 874, 879 (E.D. Pa. 1971).

Furthermore, we believe that the mere existence of a federal constitutional attack on an eminent domain proceeding of the state should not be grounds for a district court's decision not to abstain. Since there is a 'possibility of a federal question in every taking by eminent domain under state authority,' Nichols, Law of Eminent Domain, § 413(2) (1973), such a factor would nearly always preclude abstention in this type of case.⁹ 

Plaintiffs have the state courts of Illinois with its appellate system at their disposal for the adjudication of their federal constitutional claims. See Ill.Rev.Stat., ch. 47, § 12. If the Illinois Supreme Court should deny them 'any rights secured to (them) by the Constitution and laws of the United States,' the case may be brought to the Supreme Court of the United States for reexamination and review. Georgia v. City of Chattanooga, supra, 264 U.S. at 484, 44 S. Ct. at 371.¹⁰ 

Other circumstances are present which dictate that the district court abstain from deciding the constitutional claims before it. The doctrine of abstention emanating from the Supreme Court's decision in Railroad Commission v. Pullman Company, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), admonishes federal courts from considering federal constitutional claims against a state statute if the statute is susceptible to an interpretation which conforms with the Constitution. Harman v. Forssenius, supra. In such a case deference is given to the state courts to interpret the unsettled state law, for if they interpret it in such a way that is constitutional, the federal court's confrontation with the federal constitutional question is avoided. Lake Carriers Association v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972). The Supreme Court has summarized the rationale behind the Pullman doctrine thusly:

'Regard for the interest and sovereignty of the state and the reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction.'

Zwickler v. Koota, 389 U.S. 241, 250, 88 S. Ct. 391, 397, 19 L. Ed. 2d 444 (1967); see also Harris County Commissioners Court v. Moore, 420 U.S. 77, 80--87, 95 S. Ct. 870, 43 L. Ed. 2d 32 (1975).

Plaintiffs argue that section 9.7 of the Illinois Eminent Domain Act does not permit the consideration of the proposed 'commercial' use for the condemned property in computing the amount of compensation, and therefore violates the due process clause's requirement of 'just compensation.' Assuming, arguendo, that due process requires the consideration of the condemned property's proposed 'commercial' use, we believe section 9.7 is clearly susceptible to such an interpretation by the Illinois courts. The question has not been reached by the Illinois Supreme Court. The state court in the condemnation proceedings may well interpret section 9.7 to allow the consideration of the Village's proposed 'commercial' use of the condemned property in determining the amount of compensation.¹¹ 

Since 'the state court's interpretation of the (statute) may obviate any need to consider (its) validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily.' City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 641, 79 S. Ct. 455, 457, 3 L. Ed. 2d 562 (1959). See also Martin v. Creasy, 360 U.S. 219, 224, 79 S. Ct. 1034, 3 L. Ed. 2d 1186 (1959).

It is clear from all of this that the district court properly stayed its hand and refrained from interfering with the eminent domain proceedings pending in the Illinois courts. Where a district court abstains in deference to pending state proceedings so as not to interfere with state sovereignty, the proper disposition of the matter is dismissal. Crawford v. Courtney, 451 F.2d 489, 492 (4th Cir. 1971); Hamar Theatres, Inc. v. Cryan, 393 F. Supp. 34, 39 (D.N.J. 1975) (three-judge court); Wright, Law of Federal Courts 200 (2d ed. 1970). The order of the district court is therefore affirmed.¹² 

Affirmed.