Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1991)

ORDER

The appellants' petition for rehearing is granted in part. The memorandum disposition filed on May 13, 1991 in the above matter is hereby withdrawn and the attached revision filed in its place. The panel has voted to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The suggestion for rehearing en banc is rejected.

MEMORANDUM^** 

In these consolidated cases, Will and Mary Ellen Tracy appeal the district court's partial dismissal and partial denial of their application for a preliminary injunction to enjoin enforcement of certain provisions of the California Penal Code which, they claim, violate the free exercise clause of the first amendment (No. 90-55449). They also appeal the district court's final order denying them declaratory and injunctive relief (No. 90-56223).¹  We have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a) (1), and we affirm in part and dismiss in part.

FACTS

The Tracys profess to be the High Priest and Priestess of The Church of the Most High Goddess, a "hedonistic" religion whose principal rites require adherents to tithe and engage in oral and vaginal sex with the clergy. On April 11, 1989 the Tracys were arrested and charged with keeping a house of ill fame, in violation of California Penal Code Sec. 315, and prostitution, in violation of California Penal Code Sec. 647(b). They then petitioned the district court to declare sections 315, 647(b) and sections 266h and 266i, which respectively prohibit pimping and pandering, unconstitutional, and to enjoin enforcement of those laws. On February 21, 1990 the district court abstained and dismissed the Tracys' application for preliminary relief with respect to sections 315 and 647(b) pursuant to Younger v. Harris, 401 U.S. 37 (1970), and denied the application with respect to sections 266h and 266i, finding that the Tracys were not likely to prevail on the merits. On September 18, 1990, the district court denied the relief sought on the merits. The Tracys timely appeal.

1. Sections 315 and 647(b).

We review de novo a district court's decision to abstain and dismiss an application for equitable relief. World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1081 (9th Cir. 1987). The doctrine of Younger v. Harris, 401 U.S. 37 (1971), forbids a federal court in most circumstances from interfering with a pending state criminal or civil proceeding. "Under the three-pronged test announced by the Supreme Court, ... abstention is appropriate in favor of a state proceeding if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions." Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1357-58 (9th Cir. 1986) (citations omitted). In these circumstances, "a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief." Id., 805 F.2d at 1356 (citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 816 n. 22 (1976)).² 

The Tracys sought the order enjoining enforcement of sections 315 and 647(b) and declaring their provisions unconstitutional while their appeals from convictions under those statutes were pending in state court. Thus, as the district court noted, "they ha [d] an acute, live controversy with the state and its prosecutor over the very law enforcement activity that [they sought] to enjoin, and a state appellate forum in which to present their federal constitutional claims. In these circumstances, the district court had no discretion to act on the Tracys' petition and dismissal was proper.³  See Fresh International Corp., 805 F.2d at 1356.

2. Sections 266(h) and 266(i).

a. Interlocutory Appeal (No. 90-55449)

This court has recognized the futility of reviewing a district court's action on a petition for preliminary relief where the district court has already issued a decision on the merits. See Securities & Exchange Commission v. Mt. Vernon Memorial Park, 664 F.2d 1358, 1361 (9th Cir.), cert. denied, 456 U.S. 961 (1982). Where an appeal from the final decision presents the opportunity for more meaningful review, the interlocutory appeal is dismissed as merged. See id., 664 F.2d at 1362.

Here, the Tracys have appealed both the district court's denial of preliminary relief, and the district court's denial on the merits. We therefore dismiss as merged that part of Case Number 90-55449 that assails the district court's denial of preliminary relief.

b. Appeal from the Final Order (No. 90-56223)

We review for abuse of discretion a district court's denial of injunctive relief. Securities and Exchange Commission v. Arthur Young & Co., 590 F.2d 785, 787 (9th Cir. 1979).

Here, the district court found that the Tracys were not sincere devotees of the goddess.⁴  We discern no clear error in this finding. " [A]lthough the validity of religious beliefs cannot be questioned, the sincerity of the person claiming to hold such beliefs can be examined." United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981) (citing United States v. Seeger, 380 U.S. 163, 185 (1965)). Since the Tracys did not have sincere beliefs, it is unnecessary to consider whether their first amendment rights would be violated by the application of the Penal Law. We hold, therefore, that the district court did not abuse its discretion by denying the Tracys relief.⁵ 

AFFIRMED IN PART AND DISMISSED IN PART.