K. Hope, Inc v. Onslow County ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
K. HOPE, INCORPORATED,
Plaintiff-Appellant,
v. No. 95-3126
ONSLOW COUNTY,
Defendant-Appellee.
TREANTS ENTERPRISES,
Plaintiff-Appellant,
v. No. 95-3127
ONSLOW COUNTY,
Defendant-Appellee.
DONALD E. MERCER, SR., d/b/a
Pleasure Palace,
Plaintiff-Appellant,
No. 95-3153
v.
ONSLOW COUNTY,
Defendant-Appellee.
K. HOPE, INCORPORATED,
Plaintiff-Appellee,
v. No. 95-3195
ONSLOW COUNTY,
Defendant-Appellant.
TREANTS ENTERPRISES,
Plaintiff-Appellee,
v. No. 95-3196
ONSLOW COUNTY,
Defendant-Appellant.
DONALD E. MERCER, SR., d/b/a
Pleasure Palace,
Plaintiff-Appellee,
No. 95-3197
v.
ONSLOW COUNTY,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, District Judge.
(CA-94-130-4-BO, CA-94-133-4-BO, CA-94-132-4-BO)
Argued: January 28, 1997
Decided: February 25, 1997
Before RUSSELL and WILKINS, Circuit Judges, and
OSTEEN, United States District Judge for the
Middle District of North Carolina, sitting by designation.
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Vacated and remanded with instructions by unpublished per curiam
opinion.
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2
COUNSEL
ARGUED: Jeffrey Stephen Miller, Jacksonville, North Carolina, for
Appellants. Gary Keith Shipman, SHIPMAN & UMBAUGH, L.L.P.,
Wilmington, North Carolina, for Appellee. ON BRIEF: Keith Elton
Fountain, LANIER & FOUNTAIN, Jacksonville, North Carolina, for
Appellants. Carl W. Thurman, III, C. Wes Hodges, II, SHIPMAN &
UMBAUGH, L.L.P., Wilmington, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
K. Hope, Incorporated, Donald E. Mercer, Sr., d/b/a Pleasure Pal-
ace, and Treants Enterprises (collectively, "Plaintiffs") brought these
actions1 against Onslow County, North Carolina, challenging an Ons-
low County ordinance that regulates the location of adult businesses.
Plaintiffs sought a declaration that the ordinance is violative of the
United States Constitution and North Carolina law and an injunction
against its enforcement. Ruling on cross-motions for summary judg-
ment, the district court concluded that: (1) the ordinance was partially
preempted by North Carolina law; (2) although the County was not
authorized to adopt the ordinance pursuant to its general police
power, see N.C. Gen. Stat. § 153A-121 (1991), the County properly
enacted the ordinance pursuant to a comprehensive plan as an exer-
cise of its zoning power, see N.C. Gen. Stat. § 153A-340 (1991); (3)
the ordinance does not violate the North Carolina Constitution; and
(4) the ordinance is not an unconstitutional restraint on freedom of
expression violative of the First Amendment or facially overbroad in
violation of the First or Fourteenth Amendments. Both parties appeal
from this ruling.
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1 Plaintiffs brought separate actions that were consolidated before the
district court.
3
The principal issue presented to us is a difficult and unsettled ques-
tion of state law: Whether the County's enactment of the ordinance
constituted a valid exercise of the power granted to counties by the
North Carolina legislature. If the County's enactment of the ordinance
was violative of North Carolina law, the ordinance is a nullity. See
Jackson v. Guilford County Bd. of Adjustment, 166 S.E.2d 78, 83
(N.C. 1969). Thus, resolution of this perplexing state issue in favor
of Plaintiffs would avoid any need to address the constitutional ques-
tions presented. Under such circumstances, though jurisdiction is
present, abstention pursuant to Railroad Commission of Texas v. Pull-
man Co., 312 U.S. 496, 501 (1941), is appropriate to permit the state
courts to decide the questions of state law. See, e.g., Meredith v. Tal-
bot County, Md., 828 F.2d 228, 231 (4th Cir. 1987) ("Pullman absten-
tion . . . is appropriate where there are unsettled questions of state law
that may dispose of the case and avoid the need for deciding the con-
stitutional question.").2
Consequently, we vacate the judgment entered below and remand
with instructions that the district court abstain from deciding the ques-
tions of state law presented. But, the district court should retain juris-
diction over the federal claim until such time as the parties may
properly return to federal court. See Harrison v. NAACP, 360 U.S.
167, 177-79 (1959).
VACATED AND REMANDED WITH INSTRUCTIONS
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2 The fact that the parties did not raise Pullman abstention below does
not foreclose our consideration of it. See Bellotti v. Baird, 428 U.S. 132,
143 n.10 (1976) (explaining that failure of the parties to raise Pullman
abstention before a district court does not bar sua sponte appellate con-
sideration).
4