Opinion
CIVIL NO. 98-3937 (JBS).
December 22, 1999.
Joseph A. Diorio, Esq., Philadelphia, PA, Attorney for Plaintiffs.
John J. Farmer Jr., Attorney General of New Jersey, By: Larry Etzweiler, Senior Deputy Attorney General, Trenton, New Jersey, Attorney for Defendant John J. Farmer, Jr.
OPINION
In this case, plaintiffs, an adult entertainment store and its landlord, challenge the constitutionality of various New Jersey statutes which regulate the adult entertainment business. Plaintiffs New Hope Books, Inc. ("New Hope") and 705 Crescent Corporation ("705 Crescent") were charged with violating N.J.S.A. 2C:34-1, which prohibits engaging in prostitution, promoting prostitution, and compelling others to engage in prostitution, and N.J.S.A. 2C:33-12, which prohibits knowingly maintaining a house of prostitution or a premises where obscene material, as defined in N.J.S.A. 2C:34-2, is exhibited. Pursuant to a plea bargain between the county prosecutors and New Hope and 705 Crescent, all state indictments have been dismissed. Nonetheless, before this Court is plaintiffs' Second Amended Complaint, in which they challenge the above statutes, as well as N.J.S.A. 2C:33-12.1(b), which allows a court to shut down a nuisance as defined above for one year, and N.J.S.A. 2C:33-12.2(b), which includes in the definition of a nuisance a sexually oriented business which offers enclosures that facilitate sexual activity by patrons. The Second Amended Complaint was brought against Peter Verniero, as Attorney General for New Jersey, who has since been replaced by John J. Farmer, Jr. It was additionally brought against then-defendants State of New Jersey, County of Camden, and Lee Solomon (individually and as Camden County Prosecutor), who have since been dismissed from the case.
Presently before the Court are two motions filed by defendant John J. Farmer. First, Farmer seeks judgment on the pleadings for the majority of the counts in the complaint on the basis of Younger abstention. Second, Farmer seeks dismissal of the complaint, or a partial stay and partial dismissal, on the counts for which he does not seek aYounger abstention. For the reasons stated herein, this Court will deny defendant's motion for judgment on the pleadings. This Court will also grant defendant's motion to dismiss or for a partial stay and partial dismissal to the extent to which the motion seeks a dismissal of Count Six, but will postpone decision on the remainder of the motion until a later date.
The motions were filed by the State of New Jersey and the New Jersey Attorney General. However, John J. Farmer, Jr. is the only remaining defendant in the case. Therefore, outside of the Background section of this Opinion, which explains who filed which motions when, this Court will refer to the two motions as defendant's (singular) motions.
I. Background
A. The Parties
Plaintiff 705 Crescent Corporation ("705 Crescent") owns the real property and building located at 705 Crescent Boulevard, Route 130, Brooklawn, New Jersey ("the premises"), and leases the property to Crescendo Books ("Crescendo"), which is no longer a plaintiff in this case, and plaintiff New Hope Books, Inc. ("New Hope"). (Def.'s 4/27/99 Local Rule 56.1 Statement of Undisputed Material Facts ¶¶ 1, 2; Def.'s 6/28/99 Local Rule 56.1 Statement of Undisputed Material Facts ¶¶ 1-3.) The businesses operate an adult-entertainment (sexually-oriented) enterprise on the premises, consisting of twelve video-vending machine facilities, seven sexual-fantasy telephone booth facilities, and three private burlesque-show booths. (Def.'s Ex. R, ¶¶ 11, 12, 14 [Second Amended Complaint].)
Hereinafter cited as "Def.'s 4/27/99 Statement" and "Def.'s 6/28/99 Statement."
Plaintiffs allege that the video-vending booths are set up such that
there is no possibility of sexual interaction between the customer and any other person. [Plaintiff] New Hope has posted signs stating that only one person is allowed in the booth at any time.
(Id. at ¶ 18.) The sexual-fantasy telephone booths allegedly
consist of two participants speaking over a closed-circuit telephone, separated by a Plexiglass shield. The participants are the telephone fantasy hostess and her customer. The customer is enclosed in a booth. The entertainer is enclosed in a separate booth. There is a space between the booths in which the participants can see each other through the Plexiglass.
(Id. at ¶ 14.) The private burlesque shows allegedly involved the
hostess and customer . . . in a private session room together. The private burlesque show is conducted in a "booth." The booth is monitored by close circuit TV cameras. The entertainer and the customer are not permitted to have any contact with each other.
(Id. at 16.) Further, these shows allegedly
are monitored by an employee of New Hope. The employee can communicate with the booth through the TV system. The employee is instructed that if there is any contact between the customer and the entertainer, . . . the customer is to be removed from the facility.
(Id. at ¶ 17.)
B. The State Proceedings and the First Federal Suit
On February 6, 1997, law enforcement officers from the Office of the Camden County Prosecutor raided the subject premises, executed a search warrant, and seized evidence and property. (Def.'s 4/27/99 Statement ¶ 3.) On May 5, 1997, the Camden County Prosecutor's Office instituted state-court civil forfeiture proceedings against $167,401.45 seized during the raid. (Id. at ¶ 4.) On December 15, 1997, New Hope instituted its first civil action in this Court, Crescendo Books, Inc. v. State of New Jersey, No. 97-6110 (JHR) (D.N.J. filed Dec. 15, 1997), based on the raid. (See Def.'s 4/27/99 Statement ¶ 5 and Ex. B.)
With the exception of one statement with which plaintiff partially agreed and partially disagreed, plaintiff has agreed to all of the facts as stated in defendant's Local Rule 56.1 Statements of Undisputed Material Fact.
On December 17, 1997, the Camden County grand jury returned indictment No. 3647-12-97 charging plaintiffs in Count One with keeping a house of prostitution or a prostitution business contrary to N.J.S.A. 2C:34-1; and in Count Three with maintaining a house of prostitution or as a place where obscene material as defined in N.J.S.A. 2C:24-2 is exhibited, contrary to N.J.S.A. 2C:33-12. (Def.'s 4/27/99 Statement ¶ 6.) Under N.J.S.A. 2C:33-12.1(b), the sentencing judge would be afforded the option to shut down the raided premises for a period of one year in the event 705 Crescent were convicted under Count Three of this indictment. (Def.'s 4/27/99 Statement ¶ 6.)
N.J.S.A. 2C:34-1 prohibits engaging in prostitution, promoting prostitution, and compelling others to engage in prostitution.
N.J.S.A. 2C:34-2 concerns obscenity for persons 18 years of age or older. It defines "obscene material" and "exhibit" and then prohibits the sale, distribution, renting, or exhibition of obscene material to a person over the age of 18.
N.J.S.A. 2C:33-12 prohibits knowingly conducting or maintaining "any premises, place or resort as a house of prostitution or as a place where obscene material, as defined in N.J.S. 2C:34-2 . . ., is sold, photographed, manufactured, exhibited or otherwise prepared or shown. . . ."
N.J.S.A. 2C:33-12.1(b) provides that "[i]f the owner of any building or place is found guilty of maintaining a nuisance, the court may order that the building or place where the nuisance was maintained be closed and not used for a period not exceeding one year from the date of conviction."
On June 8, 1998, the Clerk of this Court gave plaintiff New Hope Books notice of a Call for Dismissal of the pending civil complaint docketed under Docket No. 97-6110 (JHR) for lack of prosecution of L. Civ.R. 41.1(a). (Def.'s 4/27/99 Statement ¶ 7.) Rather than correcting the deficiency, New Hope filed an amended complaint, noting the intervening indictment and seeking a preliminary injunction suspending and restraining both the civil-forfeiture proceedings and prosecution of the indictment. (Id. at ¶ 8.) On July 7, 1998, the Honorable Joseph H. Rodriguez dismissed the action without prejudice because of the plaintiffs' failure to prosecute and to provide evidence that they had served the defendants against whom and which they were seeking preliminary and permanent relief. (Id. at ¶ 9 and Ex. B, at page 6.) Judge Rodriguez also commented in his opinion that the complaint should probably be dismissed in any event under the doctrine of Younger v. Harris, 401 U.S. 27 (1971), because of the ongoing state proceedings. (Id.)
C. The Original Complaint in This Action
A month later, on August 19, 1998, plaintiffs New Hope and 705 Crescent, as well as Crescendo Books, instituted the instant civil action by filing a new civil complaint substantially similar to the dismissed complaint. (Id. at ¶ 10.) The original complaint alleged ten counts against investigators for the Camden County Prosecutor's Office, Lee Solomon, both individually and in his capacity as Camden County Prosecutor, and Peter Verniero, as Attorney General of New Jersey. In Counts One through Three, plaintiffs alleged that the search and seizures violated plaintiffs' Fourteenth Amendment substantive and procedural due process rights and plaintiff's Fourth Amendment rights, entitling plaintiffs to damages under 42 U.S.C. § 1983. In Count Four, plaintiffs alleged that the search and seizure violated their substantive due process rights under New Jersey law. In Count Five, plaintiffs claimed that defendants violated the First Amendment when searching and seizing plaintiffs' property in an attempt to terminate plaintiffs' business, and plaintiffs sought compensatory and punitive damages, attorneys fees, and other equitable relief. In Count Six, plaintiffs sought damages for violation of First Amendment rights under § 1983. In Count Seven, plaintiffs sought damages for violation of Art. I, § 7 of the New Jersey Constitution. In Counts Eight and Nine, plaintiffs claimed that defendants are liable under § 1983 for imposing prior restraints in violation of the First Amendment and for excessive and illegal use of the warrant procedure and civil forfeiture law. In Count Ten, plaintiffs sought compensatory and punitive damages, declaratory relief, interest, costs of suit, attorneys fees, and other equitable relief from New Jersey, the County of Camden, Lee Solomon, and Peter Verniero under § 1983, arguing that N.J.S.A. 2C:33-12.1 et seq., violates the U.S. Constitution because it is vague, imposes a prior restraint that violates the First Amendment, and criminalizes protected conduct.
John J. Farmer, Jr. has been substituted for Peter Verniero, following Justice Verniero's appointment to the New Jersey Supreme Court.
D. The Plea Agreement in the State Courts
On October 22, 1998, plaintiffs and their co-indictees under Camden County Indictment No. 3647-12-97 appeared before the Honorable Louis F. Hornstine, J.S.C., for the purpose of effecting a plea bargain to which they and the Camden County Prosecutor agreed. (Def.'s 4/27/99 Statement ¶ 11.) The plea bargain, as described to Judge Hornstine, included the following elements. Plaintiffs agreed to dismiss with prejudice the first nine counts of the federal civil complaint, leaving for this Court's resolution only Count Ten. (Id.) Plaintiffs agreed that they would withdraw their demand for relief in Count Ten, other than the demand for counsel fees and declaratory relief. (Id.) Plaintiffs agreed that the Camden County Prosecutor would retain one-half of the funds, totaling $83,700.73, that were seized in the raid and that formed the subject of the state-court civil forfeiture proceedings, but that the prosecutor would return the remaining half of the seized funds. (Id.) Plaintiff New Hope agreed that it would withdraw the counter-complaint that it had filed against the State in the state-court civil-forfeiture proceedings. (Id.) Plaintiff 705 Crescent promised to prohibit the use of its premises for the presentation of live female entertainment "by any present or future tenant of the premises for the period [from] January 15, 1999 through July 15, 1999." (Id. at ¶ 12.) Plaintiff 705 Crescent also agreed that it would not sell or transfer its interest in the premises without ensuring that future owners would likewise prohibit live female entertainment during the same time period. (Id.)
As consideration, the Camden County Prosecutor agreed that he would return all of the property confiscated except one-half of the funds that formed the subject of the state court civil forfeiture proceedings. (Id. at ¶ 13.) He agreed not to prosecute the "female dancers" who were arrested in the raid on February 6, 1997. (Id.) He also promised to act favorably with respect to the criminal charges pending against plaintiffs. (Id. at ¶ 14.) At the time of sentencing of the other co-indictees, whom the plea bargain required to plead guilty to charged offenses or lesser-included offenses (id. at ¶ 15), the Prosecutor would move for the dismissal of all charges against New Hope, so long as New Hope had complied with its end of the plea bargain by that time. (Id. at ¶ 14.) At the conclusion of the six-month period of operation without live female entertainment, ending July 16, 1999, the Prosecutor would move for dismissal with prejudice of charges contained in the indictment against plaintiff 705 Crescent. (Id.)
At the October 22, 1998 proceedings, Judge Hornstine accepted the guilty pleas, and he set the matter down for sentencing to take place on January 15, 1999. (Id. at ¶ 15.)
On December 3, 1998, Magistrate Judge Joel B. Rosen signed and filed a consent order dismissing with prejudice the first nine counts of plaintiffs' original complaint in the present case and affording plaintiffs a period of time until December 7, 1998 to file an amended complaint regarding the sole remaining count, Count Ten. (Id. at ¶ 16.) Plaintiffs filed the First Amended Complaint on December 7, 1998.
E. The First Amended Complaint and the Filing of Defendants' Motion for Partial Judgment on the
Pleadings
The Amended Complaint lists only New Hope and 705 Crescent as plaintiffs, and it names the State of New Jersey, County of Camden, Lee Solomon (individually and as Camden County Prosecutor), and Peter G. Verniero (as Attorney General of the State of New Jersey) as defendants. The amended complaint notes plaintiffs' belief that they face reasonable threat of future prosecution under N.J.S.A. 2C:33-12 and 2C:34-2 because of the operation of a facility provided adult erotic fantasy conversation entertainment, live burlesque dancing, and other adult entertainment. (Amended Compl. ¶¶ 27-28.) The Amended Complaint alleges six counts. In Count One, plaintiffs allege that both N.J.S.A. 2C:33-12 and 2C:34-2 violate the First and Fourteenth Amendment to the U.S. Constitution because § 2C:33-12 incorporates § 2C:34-2's allegedly unconstitutionally vague definition of obscenity. In Count Two, plaintiff 705 Crescent allege that N.J.S.A. 2C:33-12(c) and 2C:33-12.1(b) violate the Fourteenth Amendment. More specifically, 705 Crescent alleges that N.J.S.A. 2C:33-12(c) and 2C:33-12.1(b) are overbroad (because an out-of-possession landlord can be held criminally responsible for the possibly criminal acts of a tenant), void for vagueness (because the landlord can be held criminally responsible without proof of the landlord's intent), unconstitutional (because the remedy of closure is not reasonably related to abatement of a nuisance for obscene material), and violative of plaintiffs' liberty and property rights. In Count Three, both plaintiffs allege that the above-named statutes violate the Fourteenth Amendment. In Count Four, plaintiffs allege that N.J.S.A. 2C:33-12.2(b) violates the First and Fourteenth Amendments because it is unconstitutionally vague (fails to give a person fair notice that contemplated conduct is forbidden, encourages arbitrary arrests and convictions, criminalizes protected conduct, and places unfettered discretion with police and prosecutor), because it fails to define the kind and type of booth or enclosure which would be in compliance with the statute (and because plaintiffs have requested guidance from the authorities as to this but have not received guidance), because it punishes a business for the actions of its customers without proof as to the business's intent, and because it violates plaintiffs' liberty interests. In Counts One through Four, plaintiffs seek an order declaring the statutes unconstitutional and enjoining defendants from the enforcement thereof. In Count Five, plaintiffs specifically state that they seek declaratory relief under the New Jersey Constitution, while in Count Six, they specifically seek injunctive relief under the New Jersey Constitution, as well as counsel fees and costs.On December 21, 1998, defendant State of New Jersey and defendant Peter G. Verniero, then-Attorney General of the State of New Jersey, filed their answer to the Amended Complaint.
On January 15, 1999, Judge Hornstine dismissed the criminal charges against plaintiff New Hope. On that same day, defendants State of New Jersey and Verniero (for whom Farmer has since been substituted) filed a notice of intent to submit a dispositive motion, namely a motion for partial summary judgment. Defendants thereafter sent a memorandum in support of the motion for partial judgment on the pleadings to plaintiffs. In that memorandum, defendants argued that the Younger abstention doctrine requires dismissal of Counts One, Two, and Three of the Amended Complaint, as well as Counts Five and Six, except to the extent to which Counts Five and Six challenge the constitutionality of N.J.S.A. 2C:33-12.2(b), because plaintiffs had never been charged with violation of 2C:33-12.2(b). Defendants also asked that this Court dismiss the State of New Jersey as a defendant because of sovereign immunity. They specifically noted that they were not yet moving for summary judgment on the constitutionality of N.J.S.A. 2C:33-12.2(b) because they wanted to be certain that there were no pending charges against these plaintiffs under that statute which might form a predicate for Younger abstention. (Def.'s Br. Supp. Partial Summ. J. at 12, n. 8.)
In response to defendants' memorandum plaintiffs did several things. First, plaintiffs filed an opposition brief arguing that Younger abstention was not appropriate. Second, plaintiffs agreed to dismiss defendants Solomon, the County of Camden, and the State of New Jersey. As a result, plaintiffs argued that defendants' motion was moot insofar as it sought to have the State of New Jersey dismissed. Finally, on February 5, 1999, plaintiffs submitted a motion to amend the complaint again. Magistrate Judge Rosen entered an order granting that motion on March 19, 1999, and plaintiffs submitted a Second Amended Complaint on April 16, 1999, before defendants wrote their reply brief in support of their motion.
F. The Second Amended Complaint and the Transformation of the Motion for Partial Summary Judgment
In Count One of the Second Amended Complaint, plaintiff New Hope seeks an order that N.J.S.A. 2C:33-12 and 2C:34-2 violate the First and Fourteenth Amendments to the U.S. Constitution because 2C:33-12 incorporates 2C:34-2, which is allegedly unconstitutionally vague on its face, and plaintiffs seek declaratory and injunctive relief, as well as counsel fees and costs. In Count Two, both plaintiffs argue that N.J.S.A. 2C:33-12 and 2C:34-2 are unconstitutional as they were already applied to plaintiffs, and they again seek declaratory and injunctive relief, as well as counsel fees and costs. The old Counts Two, Three, Four, and Five have simply been renumbered as the new Counts Three, Four, Five, and Six. The old Count Six, which sought injunctive relief, has been deleted, although the Second Amended Complaint still seeks an injunction as part of the overall relief. Altogether, plaintiffs ask this Court to declare that N.J.S.A. 2C:33-12.2(b), 2C:33-12(c) and 2C:33-12.1(b), and 2C:33-12 and 2C:34-2 violate the First and Fourteenth Amendments to the U.S. Constitution; to declare that N.J.S.A. 2C:33-12.2(b), 2C:33-12c, 2C:34-2, and 2C:33-12.1(b) violate the New Jersey State Constitution; to enjoin the State of New Jersey from enforcing these statutes; and to award reasonable counsel fees and costs.
In late April, defendants filed their reply brief in support of their motion for partial judgment on the pleadings, adapting the motion to address the Second Amended Complaint. In the reply brief, defendants confirm that they are not seeking a Younger abstention as to Count Five of the Second Amended Complaint or as to that aspect of Count Six of the Second Amended Complaint which concerns N.J.S.A. 2C:33-12.2(b) because plaintiffs had never been charged with a violation of that statute. Defendants argue that this Court should dismiss Counts One through Four of the Second Amended Complaint under the Younger abstention doctrine for the same reasons this Court should have dismissed the complaint as it was previously numbered. Though Judge Hornstine did dismiss the criminal charges against New Hope with prejudice on January 15, 1999, it was still unclear at the time of the filing of defendants' reply brief in support of the motion for partial judgment on the pleadings whether Judge Hornstine would dismiss the charges against plaintiff 705 Crescent: he might, in his discretion, dismiss the indictment with prejudice on August 6, 1999 as long as 705 Crescent Corporation acted in accordance with the plea bargain until at least July 15, 1999. Thus, defendants argue that this Court should still abstain from deciding Counts One through Four of the Second Amended Complaint, as well as Count Six except insofar as it relates to N.J.S.A. 2C:33-12.2(b), because this Court's declaration that the statutes named in those counts are unconstitutional could remove sentencing options from Judge Hornstine or foreclose the State from prosecuting plaintiff 705 Crescent for the Count Three offense in the event that 705 Crescent did not fulfill its end of the plea bargain or if Judge Hornstine did not dismiss the indictment.
G. Defendant's Motion to Dismiss
On June 28, 1999, defendants filed a motion for a dismissal of the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) or for a partial dismissal and a partial stay. In this motion, defendants argue that plaintiffs lack standing to raise a pre-enforcement challenge to the constitutionality of N.J.S.A. 2C:33-12.2(b) because they have not established a genuine threat of prosecution. Defendants also argue that this Court lacks jurisdiction to declare the statutes unconstitutional under the New Jersey Constitution, as requested in Count Six of the Second Amended Complaint. Defendants argue that rather than reach the merits of plaintiff's constitutional attack on N.J.S.A. 2C:33-12.2(b), this Court should apply a Pullman abstention and stay the case pending state court resolution of state-law issues. Finally, defendants argue that N.J.S.A. 2C:33-12.2(b) is constitutional.
Defendant has not moved for dismissal of any other count on the merits.
While plaintiffs agree with defendants that the Court lacks jurisdiction regarding Count Six of the Second Amended Complaint, plaintiffs argue that they do have standing, that this Court should not exercise a Pullman abstention, and that N.J.S.A. 2C:33-12.1(b) is vague on its face.
H. Dismissal of Charges Against 705 Crescent
On November 3, 1999, the Camden County Prosecutor submitted a motion to Judge Hornstine to dismiss Counts One and Three of the indictment (the only counts of the indictment under which 705 Crescent was charged). Judge Hornstine entered that order dismissing the indictment against 705 Crescent Corporation on November 15, 1999. There are currently no charges pending against either 705 Crescent Corporation or New Hope Books pursuant the statutes which those plaintiffs are challenging in this case.
II. Discussion
A. Standard for Judgment on the Pleadings
A motion brought under Fed.R.Civ.P. 12(c) for judgment on the pleadings is treated under the same standard as a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6). Turbe v. Government of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. National Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990).
It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim.Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the Court is not whether the plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n. 3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d at 103.
B. Motion for Partial Judgment on the Pleadings
When defendant filed its reply brief for partial judgment on the pleadings, charges had only been dismissed as to one of the plaintiffs, New Hope. Judge Hornstine had not yet dismissed the charges against plaintiff 705 Crescent, and it could not be guaranteed that he would do so. In the reply brief in support of the motion for partial judgment on the pleadings, therefore, defendants argue that this Court should dismiss Counts One through Four, as well as Count Six except insofar as it relates to N.J.S.A. 2C:33-12.2(b), because if this Court were to hold the statutes unconstitutional, it could affect the still-ongoing state proceedings against 705 Crescent.
A Younger abstention is not appropriate here. Under the doctrine created in Younger v. Harris, 401 U.S. 37 (1971), federal abstention and dismissal are appropriate if three conditions are met: (1) there is an ongoing state judicial proceedings to which the federal plaintiff is a party and with which the federal proceeding will interfere; (2) the ongoing state proceedings implicate an important state interest; and (3) the state proceedings must afford an adequate opportunity to raise the constitutional claims. Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Focus v. Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996) (quoting Port Authority Police Benev. Assoc., Inc. v. Port Authority, 885 F.2d 101, 106 (3d Cir. 1992)). In the instant case, however, there are no longer any ongoing state proceedings, and thus the conditions of Younger cannot be met. Therefore, this Court will deny defendants' motion for partial judgment on the pleadings.
Defendant argues that this Court should dismiss under Younger because Younger requires dismissal if there are ongoing state proceedings at the time the federal action is filed, even if those proceedings are no longer ongoing, citing Beltran v. State of California , 871 F.2d 777, 782 (9th Cir. 1988); Bettencourt v. Bd. of Registration in Medicine , 904 F.2d 772, 777 (1st Cir. 1990); Liedel v. Juvenile Ct. of Madison County, Ala . , 891 F.2d 1542, 1546 n. 6 (11th Cir. 1990); and DeSpain v. Johnston , 731 F.2d 1171, 1178 (5th Cir. 1984). The Court will not abstain based on that reasoning. First, this Court does not construe the Third Circuit's silence in this regard as agreement with the First, Fifth, Ninth, and Eleventh Circuits. Second, some of those cases are based in the notion that federal issues could be raised in the state when the state proceedings is pending and the state appellate process has not yet been exhausted. See, e.g., DeSpain , 731 F.2d at 1177-78. Here, there will be no use of the state appellate procedure; plaintiffs will not appeal the dismissal of the indictment, and the Camden County Prosecutor will not move to appeal its own motion for dismissal. The state proceedings were winding down when this lawsuit was filed, and they are truly complete now. Younger is a doctrine of limited application, an exception to the courts' otherwise existing jurisdiction over a case based on equity and comity, designed to prevent interference with state court jurisdiction. Here, there is no risk of interference with state proceedings. Moreover, if the Court were to construe the pleading as of the time it was filed and disregard the subsequent final dismissal of the state charges, granting a Younger abstention would cause nothing but delay, as plaintiffs could simply refile their complaint seeking declaratory relief. Therefore, a Younger abstention is thus not warranted, for at this time this Court should not defer to non-existent state proceedings.
III. Conclusion
Because there are no longer any ongoing state judicial proceedings as to these plaintiffs with which this Court's exercise of jurisdiction could interfere, this Court will deny defendants' motion for partial judgment on the pleadings. This, of course, does not prejudice defendant's right to seek to dismiss the complaint or have summary judgment entered in his favor on other grounds.
As to defendant's motion to dismiss or for a partial stay and partial dismissal, this Court makes no decision, except to the extent that this Court notes that the parties agree that this Court lacks jurisdiction to decide Count Six of the Second Amended Complaint. Therefore, this Court will dismiss Count Six of the Second Amended Complaint. The Court reserves decision on all other aspects of that motion. The accompanying Order is entered.
The parties agree that this Court lacks jurisdiction to hear Count Six, which seeks a declaratory judgment that the statutes violate the New Jersey Constitution, under the Eleventh Amendment to the United States Constitution as interpreted in Pennhurst State School Hospital v. Halderman , 465 U.S. 89 (1983) (federal court cannot award injunctive relief against state officials under state law).
The following questions remain to be decided on that motion: whether plaintiffs have standing to raise a pre-enforcement challenge to the constitutionality of N.J.S.A. 2C:33-12.1(b), whether the Court should exercise a Pullman abstention, and whether, if the plaintiffs have standing and this Court chooses not to abstain, N.J.S.A. 2C:33-12.1(b) is unconstitutionally vague on its face. Oral argument will be scheduled upon these aspects of defendant's motion for dismissal or partial stay on January 28, 2000 at 11:30 a.m.
ORDER
This matter having come before the Court upon defendant's motion for partial judgment on the pleadings and defendant's motion to dismiss or for a partial dismissal and partial stay; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this day of December 1999 hereby
ORDERED that defendant's motion for partial judgment on the pleadings be, and hereby is, DENIED; and it is
ORDERED that defendant's motion to dismiss or for a partial dismissal and partial stay be, and hereby is, GRANTED IN PART to the extent to which it seeks dismissal of Count Six of the Second Amended Complaint, and Count Six of the Second Amended Complaint is DISMISSED for lack of subject-matter jurisdiction, and the motion is CONTINUED in all other respects, being scheduled for Oral Argument on January 28, 2000 at 11:30 a.m.