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November 20, 1986


The opinion of the court was delivered by: ROY

 A hearing was held on the Motion for Abstention on November 19, 1986. The Court ruled from the bench that it would abstain from exercising jurisdiction over the case, and these findings and conclusions are entered in accordance therewith. Plaintiffs have filed a Complaint and Motion for Preliminary Injunction, seeking declaratory and injunctive relief, challenging the constitutionality of an ordinance of the City of Maumelle, Arkansas. Plaintiffs seek relief under the Fourth and Fourteenth Amendments, 42 U.S.C. § 1983, and also allege pendent state law claims.

 According to the allegations in the complaint, plaintiff Steele Holt is a resident of Maumelle, Pulaski County, Arkansas, and is a citizen of the United States and is threatened with criminal prosecution provision of the ordinance challenged herein.

 Plaintiff, American Dog Owners Association, is a Michigan nonprofit corporation whose members are dog owners residing throughout the United States including the State of Arkansas and City of Maumelle.

 Defendant, City of Maumelle, is a municipality formed pursuant to the laws of the State of Arkansas.

 Defendant, Jeff Wilkinson, is the animal control officer for the City of Maumelle and is used both individually and in his official capacity.

 The subject Ordinance purports to prohibit "Keeping of dogs substantially conforming to the standards of the American Kennel Club for American Staffordshire Terrier or Staffordshire Bull Terrier or the United Kennel Club for American Pit Bull Terrier . . ." Concerning enforcement of the above provision, § 24 of the Ordinance provides:

For the purpose of discharging the duties imposed by this Ordinance and enforcing its provisions, any police officer, and Health Department officer or any animal control officer is impowered to enter upon any premises upon which a dog or cat or animal is kept or harbored, and to demand, and secure the owner's exhibition of such animal.

 Plaintiffs allege that the above - described Ordinance is vague and uncertain, that it infringes on an individual's right to be free from unreasonable searches and seizures, that the Ordinance was not filed in accordance with Arkansas law, and also violates Arkansas law relating to search and seizure involving animals.

 The defendants contend that abstention is proper because there are unsettled questions of Arkansas state law that would be dispositive of this case precluding the necessity of deciding any constitutional questions. Plaintiffs argue that Ordinance 36 of the City of Maumelle is void for vagueness on its face and therefore incapable of an interpretation by state court which would pass constitutional muster. For this reason, plaintiffs submit that the motion to abstain should be rejected and that the federal court should hear the case on its merits.

 The Supreme Court has recognized the wisdom of staying actions in the federal courts pending determination by a state court of decisive issues of state law. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27, 3 L. Ed. 2d 1058, 79 S. Ct. 1070 (1959). Where the issue touches upon the relationship of City to State, or involves the scope of a previously uninterpreted state statute which, if applicable, is of questionable constitutionality, the Supreme Court has required district courts to stay their proceedings pending the submission of the state law question to state determination. Id., 360 U.S. at 28. According to the defendants, the Ordinance in question has never been challenged in the Arkansas courts in light of Ark.Stat.Ann. §§ 19-2421 and 41-2961. Therefore, a decision as to the validity of the Ordinance as it relates to the Arkansas statutes could be dispositive.

 The fact that the plaintiff has asserted a § 1983 claim does not prevent the Court from abstaining. Although federal courts have generally regarded vital questions of civil rights as the least likely candidates for abstention, they have repeatedly held that actions brought under the civil rights statutes are not exempt from the abstention doctrine. George v. Parratt, 602 F.2d 818, 819-20 (8th Cir. 1979).

Comparing the numerous civil rights cases in which abstention has been held appropriate (footnote omitted) with those cases in which the federal courts have declined to abstain, (footnote omitted), suggests several factors which should be considered ...

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