Joe Redner, Plaintiff-appellant,thomas George Secchairi, Phyllis Patrick, Tammy Benard,amanda Benard Oliver, Plaintiffs, v. Citrus County, Florida, Defendant-appellee,charles S. Dean, Sheriff of Citrus County, Florida Andindividually, Skip Hudson, Alex Griffin, Williamf. Broska, John Barnes, Nick Bryant, Defendants.joe Redner, Plaintiff-appellant, v. Citrus County, a Political Subdivision of the State Offlorida, Defendant-appellee, 919 F.2d 646 (11th Cir. 1990)

This case presents the issue whether the federal district court properly abstained from considering the merits of a section 1983 suit brought by Joe Redner against Citrus County, Florida, in which Redner--the owner of an adult entertainment facility--challenged the constitutionality of emergency Ordinance 88-05 and its successor ordinance, 88-06,¹  when there were on-going state criminal prosecutions against Redner and his employees for violating Ordinance 88-05, which regulated adult entertainment businesses.

In federal district court, this suit--which sought a permanent injunction against the enforcement of the ordinances, declaratory judgment that the ordinances were unconstitutional, and damages from the County, the County Commissioners, and the County Sheriff--was consolidated with another section 1983 suit brought by Redner against the County. The second federal lawsuit sought a permanent injunction of the enforcement of Ordinance 88-A51²  (a zoning ordinance) against Redner, a declaratory judgment that Ordinance 88-A51 was unconstitutional, and a declaratory judgment that Citrus County was equitably estopped from enforcing the ordinance with respect to Redner's establishment.

The federal district court (1) dismissed the claims against the Commissioners and Sheriff Dean in their individual and official capacities;³  (2) abstained from deciding the constitutionality of Ordinances 88-05 and 88-06 on the Younger grounds that reaching the merits of the constitutional claims would interfere with pending state court criminal proceedings (the claims for injunctive and declaratory relief were dismissed, and the claim for damages was stayed); and (3) held that zoning Ordinance 88-A51 was a valid, content-neutral time, place and manner regulation and that Citrus County was not estopped from enforcing 88-A51 against Redner.⁴ 

On appeal, Redner chiefly contends that the district court, relying on Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), erred in abstaining from deciding the constitutionality of Ordinances 88-05 and 88-06. First, he contends that Younger does not apply because he requested no injunction of on-going state criminal proceedings, but instead requested an injunction of future prosecutions, and because, although he had been arrested twice before he filed his federal complaint, there was no pending state criminal proceeding when he filed for federal relief. In connection with this contention, he notes that the pertinent criminal proceedings were to enforce Ordinance 88-05 and that future criminal prosecutions would be under Ordinance 88-06. Second, if Younger abstention would apply, he contends that the bad faith exception should also apply to this case.⁵ 

In Younger v. Harris, the Supreme Court held that abstention is appropriate where federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings; the Court recognized exceptions for bad faith, harassment, or a patently invalid state statute. 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). In Samuels v. Mackell, the Court extended Younger to cases in which federal jurisdiction was invoked for the purposes of obtaining declaratory relief when the federal plaintiff is a defendant in a pending state criminal prosecution, if Younger would have barred an injunction in the circumstances. 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971). Younger was further extended when the Supreme Court held that federal courts may not provide declaratory relief if a state prosecution is commenced against the federal plaintiffs "after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court...." Hicks v. Miranda, 422 U.S. 332, 349, 95 S. Ct. 2281, 2292, 45 L. Ed. 2d 223 (1975); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975) (denial of federal declaratory and injunctive relief in case in which plaintiffs alleged local ordinance violated First and Fourteenth Amendments). A state's trial and appeals process is considered "a unitary system," and Younger prevents a federal court from disrupting the process while a case is on appeal. See New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, ----, 109 S. Ct. 2506, 2518, 105 L. Ed. 2d 298 (1989). Thus, as long as a federal challenge to a state statute or local ordinance "relate [s] to pending state proceedings, proper respect for the ability of state courts to resolve federal questions presented in state court litigation mandates that the federal court stay its hand." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14, 107 S. Ct. 1519, 1527, 95 L. Ed. 2d 1 (1987).

Applying Younger and its progeny to the facts of this case, the district court properly abstained from deciding the constitutionality of Ordinance 88-05. We reject Redner's suggestion that there was no pending state criminal proceeding against him when he filed for federal relief: before he filed suit in federal court, he had been arrested and taken to jail twice for violating Ordinance 88-05 and, twice, had been released on bond.⁶  Because Redner was twice released from jail on bond pending a state trial before he filed the federal suit, state criminal proceedings had begun against him. But even if we accept Redner's contention that, when he filed his suit in federal court, there were no pending state criminal proceedings, abstention was still appropriate because state criminal proceedings were well underway by the time "any proceedings of substance on the merits [had] taken place in federal court." See Hicks, 422 U.S. at 349, 95 S. Ct. at 2292. On the same day that the record shows the return of service of the federal complaint on defendants, Redner filed a motion to dismiss the charges in state court; Redner was found guilty in the state court long before the federal district court entered its decision to abstain. Redner's state criminal conviction was on appeal when the federal court decided to abstain.⁷ 

Nor was abstention inappropriate considering the alleged bad faith of Citrus County. A prosecution is undertaken in bad faith when "a prosecution has been brought without a reasonable expectation of obtaining a valid conviction." Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S. Ct. 1524, 1531 n. 6, 44 L. Ed. 2d 15 (1975). See also Erwin Chemerinsky, Federal Jurisdiction Sec. 13.4 at 651 (1989). Redner presents no evidence that the prosecution was brought without a reasonable likelihood of obtaining a valid conviction.⁸  As a result, there was no bad faith in prosecuting Redner; and the district court correctly declined to recognize a bad faith prosecution exception to Younger abstention.

Ordinance 88-06 is not the ordinance under which Redner was arrested, prosecuted, and convicted. But, Citrus County contends that the district court properly abstained from deciding the merits on Ordinance 88-06. First, the county contends that Ordinance 88-06 is virtually identical to 88-05 in its substantive provisions⁹  and that, as a consequence, a ruling of a federal court on the constitutionality of 88-06 would have necessarily interfered with the on-going state proceedings because of issue preclusion. Second, Citrus County contends that abstention on Ordinance 88-06 was proper because an injunction against its enforcement would necessarily interfere with, and nullify, a condition of the bond on which Redner was released from jail pending appeal of his convictions.

Abstention is an important federal doctrine. But we note that " [a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817, 96 S. Ct. 1236, 1244, 1246, 47 L. Ed. 2d 483 (1976). At least, in the absence of a very high probability that a federal decision on 88-06 in this case would lead to issue preclusion in state court, the district court should have declined to abstain.

Ordinance 88-06 and Ordinance 88-05 are extremely similar, but their terms are not identical. The presence in Ordinance 88-06 of substantive provisions absent from Ordinance 88-05 potentially requires that each of Ordinance 88-06's provisions be construed in the context of these additional substantive provisions. Therefore, even if the federal district court had held Ordinance 88-06 unconstitutional, the state courts might still have properly held that Ordinance 88-05 was constitutional.¹⁰  The federal court decision on 88-06 might have been persuasive authority in the state court, but that such a federal court decree would have inevitably barred a contrary state judgment on the constitutionality of a different ordinance is doubtful. In addition, the state criminal proceeding would not necessarily determine the constitutionality of Ordinance 88-06.¹¹  The state criminal proceedings could proceed to completion--and, in fact, seemingly have proceeded to completion--without a state court addressing Ordinance 88-06. Therefore, the district court's abstention on Ordinance 88-06, based on Younger and its progeny, was improper.

We reject the County's argument that the district court was required to abstain on Ordinance 88-06 because of Redner's bond condition.¹²  The condition of Redner's appeal bond dictated that Redner "not open business in violation of any Citrus County ordinances." We read this condition to mean "any Citrus County ordinance that is constitutionally valid." The existence of the bond, in itself, adjudicates nothing on the question of ordinance validity. There were no active state court proceedings adjudicating the validity of 88-06 when the district court abstained; put differently, there were no state proceedings to which a federal court could defer about 88-06. It may be true that Redner could have triggered some state proceedings by violating 88-06 and, then, in a bond forfeiture proceeding or in some other state proceeding adjudicated 88-06's validity. But we know of no precedent that allows abstention because there may be, in the uncertain future, state court proceedings on point. Cf. Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (Younger abstention inappropriate if state criminal proceedings are threatened, but not pending).¹³ 

Conclusion

This court affirms the decisions of the district court to abstain on Ordinance 88-05, to dismiss the individual Commissioners and the Sheriff due to their immunity, and to deny equitable estoppel against Citrus County's enforcement of Ordinance 88-A51. We reverse the decision of the district court to abstain on 88-06 and remand for further proceedings.¹⁴ 

AFFIRMED in part, REVERSED in part and REMANDED.