Posted by: Patricia Salkin | August 8, 2015

Fed. Dist. Court in Ill Grants Abstention Dismissal of First Amendment Challenge to Sign Ordinance

Plaintiff Kurtz Investments, Ltd. hired H.B. Chainsaw Sculptures (“HBCS”) to create a wood carving from the remainder of an ash tree on the property. Beginning on July 4, 2014, HBCS artist Heath Bender began carving a sculpture out of the deceased tree. Bender completed the sculpture on July 7, 2014. Three months later, on October 7, 2014, defendant issued a notice of violation to plaintiff stating that the sculpture violates § 9–106(D)(1)(j) of the Hinsdale Zoning Ordinance which prohibits “identification signs” in O–1 Zone Districts. The notice ordered plaintiff to remove the sculpture. Plaintiff brought a two count complaint against the Village of Hinsdale alleging that certain of defendant’s ordinances related to zoning and signs violate the First Amendment to the United States Constitution (Count I) and Article I, § 4 of the Illinois Constitution (Count II). Plaintiff sought a declaration that the ordinances are unconstitutional, and an order enjoining defendant from continuing to prosecute plaintiff in state court for violating the ordinances. Defendant has moved to dismiss under Fed.R.Civ.P. 12(b)(1) based on the Younger Abstention Doctrine.

The Younger abstention doctrine, provides generally that “principles of equity, comity, and federalism require a federal court to abstain from hearing a federal action challenging the constitutionality of a state criminal statute while the state is prosecuting the federal plaintiff in state court for violating that same statute.” It applies only when there is an action pending in state court against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding. The Plaintiff argued that abstention is inappropriate because the state proceeding is not “ongoing” as a result of that court having granted plaintiff’s motion to stay based on the instant case. Here, the court found that the defendant had not waived its Younger argument, having opposed the motion to stay the state proceedings and sought abstention in this court. The court therefore concluded that the state proceedings remained “on-going” for purposes of the Younger analysis. Accordingly, because there was no question that plaintiff could challenge the constitutionality of the ordinance in the state proceeding, the court granted the motion to dismiss under the abstention doctrine.

Kurtz Investments, Ltd. v Village of Hindsdale, 2015 WL 4112879 (N.D. Ill. 7/7/2015)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: