                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4630
FORTY ONE NEWS, INC.,
                                             Plaintiff-Appellant,
                                v.

COUNTY OF LAKE,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
            No. 04 C 7310—Elaine E. Bucklo, Judge.
                         ____________
   ARGUED OCTOBER 31, 2006—DECIDED JUNE 27, 2007
                   ____________


 Before POSNER, WOOD, and EVANS, Circuit Judges.
  WOOD, Circuit Judge. Forty One News, Inc. (“41 News”)
is the proprietor of an adult book and video store in
Lake County, Illinois; the store is called 41 Books. Lake
County, like many other localities, has special regulations
pertaining to purveyors of “adult” content; like many
subjects of those regulations, 41 News objects to them. One
way it has voiced its objections is through this lawsuit,
which was brought under 42 U.S.C. § 1983 to enjoin Lake
County from applying Lake County Ordinance 6:1-15 (eff.
Oct. 9, 2001) (the “Adult Use Ordinance”) to it. In 41
News’s opinion, the County’s ordinance violates the
First and Fourteenth Amendments of the U.S. Constitu-
tion. The rub is this: at the relevant time, there was a
2                                               No. 05-4630

quasi-criminal enforcement proceeding pending in the
Circuit Court of Lake County against 41 News for failure
to comply with the Ordinance. Even though the latter
action was commenced after 41 News filed this lawsuit,
the district court dismissed the § 1983 suit under the
abstention doctrine of Younger v. Harris, 401 U.S. 37
(1971). We agree with the district court that Younger
abstention is appropriate and therefore affirm.


                             I
   Hoping to regulate and license “adult cabarets,” “adult
stores,” and “adult theaters,” Lake County adopted the
first version of its Adult Use Ordinance on February 10,
1998. Almost immediately, 41 News joined with another
adult bookstore and two adult cabarets in filing a state
court action to block enforcement of the Ordinance. See
XLP Corp. v. Lake County, 98 CH 1106 (Ill. Cir. Ct., Lake
County). Although the Circuit Court of Lake County
initially granted judgment on the pleadings in favor of the
County, the Illinois Appellate Court reversed. The Ap-
pellate Court found that there was a factual dispute “as
to whether the recitals in the preamble of defendant’s
ordinance establish that the ordinance was enacted
to advance a substantial government interest, i.e., to
combat the adverse secondary effect of adult use
businesses . . . .” XLP Corp. v. County of Lake, 743 N.E.2d
162, 170 (Ill. App. Ct. 2000). In light of the plaintiffs’
allegations that their businesses had operated for 15
years without causing any secondary effects, the court
concluded that the trier of fact should not have presumed
that the Ordinance’s preamble (finding to the contrary)
was enough to refute the plaintiffs’ position. It accordingly
remanded the case for a hearing, at which Lake County
would have the burden to establish that the purpose of the
statute was to combat harmful secondary effects and that
such effects existed. Id.
No. 05-4630                                                3

  In light of court decisions that called the constitutional-
ity of the Adult Use Ordinance into question, the County
amended it on October 9, 2001, passing the version that
forms the basis for this lawsuit. After extensive motion
practice and other delays, a bench trial was calendered
for November 17, 2003. Just before the trial was to begin,
on November 11, 41 News moved to dismiss the case; the
court granted this motion without prejudice three days
later. (As the court had already dismissed the other adult
bookstore from the case, the only remaining plaintiffs
were adult cabarets.) The trial proceeded without 41 News
as a plaintiff and ended with a verdict upholding the
constitutionality of the Adult Use Ordinance.
  Having extricated itself from the state court suit, 41
News filed its complaint in federal court on November 12,
2004. Lake County initially responded with a motion to
dismiss under FED. R. CIV. P. 12(b)(6) on res judicata
grounds. The district court denied this motion, finding
that on the record presented it could not “determine that
parties were in privity or that the issues litigated in the
state suit are identical to those at issue here given the
difference in type of business.” Order of May 6, 2005.
(Technically, of course, res judicata is an affirmative
defense for the defendant, see FED. R. CIV. P. 8(c), and thus
cannot be raised until a motion for judgment on the
pleadings under Rule 12(c), but in light of the court’s
ruling we need not pursue that matter further.)
  After Lake County’s motion to dismiss in the federal
suit was denied, events occurred in state court that
precipitated a second motion to dismiss, this time on
Younger abstention grounds. On May 26, the Illinois
Appellate Court ruled that the Adult Use Ordinance
was constitutionally permissible, affirming the verdict of
the district court. See XLP Corp. v. County of Lake, 832
N.E.2d 480 (Ill. App. Ct. 2005). With this victory in hand,
Lake County promptly filed an enforcement action
4                                              No. 05-4630

against 41 News for operating an adult establishment
without a license. See County of Lake v. Forty One Books,
Inc., 05 CH 939 (Ill. Cir. Ct., Lake County). (While this
appeal has been pending, the County prevailed in its
enforcement suit in the state trial court, which found that
41 News was operating an adult store in violation of the
ordinance and enjoining it from so doing. See Order of
Sept. 21, 2006. 41 News has appealed that decision.)
  Based on the state court enforcement action, Lake
County moved on June 15, 2005, to dismiss the federal
action on Younger abstention grounds. This time, the
district court granted its motion, concluding that
“[a]bstention is appropriate in this case given the pend-
ing state action. Nothing of substance has occurred in
the federal action. Plaintiff will be able to litigate its
constitutional claims in the state action. Manheim Video,
Inc. v. County of Cook, 884 F.2d 1043, 1045 (7th Cir.
1989).” Order of Dec. 12, 2005.


                            II
  “We review Younger abstentions under a de novo stan-
dard of review.” Crenshaw v. Supreme Court of Indiana,
170 F.3d 725, 728 (7th Cir. 1999).
  “The rule in Younger v. Harris is designed to ‘permit
state courts to try state cases free from interference by
federal courts.’ ” Hicks v. Miranda, 422 U.S. 332, 349
(1975) (quoting Younger, 401 U.S. at 43). Younger absten-
tion ensures that individuals or entities who have violated
state laws cannot seek refuge from enforcement of those
laws behind the equitable powers of the federal courts:
“[I]f a person is believed to have violated a state law, the
state has instituted a criminal disciplinary or other en-
forcement proceeding against him, and he has a fed-
eral defense, he cannot scurry to federal court and plead
No. 05-4630                                               5

that defense as a basis for enjoining the state proceeding.”
Nader v. Keith, 385 F.3d 729, 732 (7th Cir. 2004). Limiting
the intervention of the federal courts preserves the
“institutional autonomy of state judicial processes by
limiting attempts by litigants to obtain federal declara-
tory or injunctive relief on constitutional grounds where
such relief may interfere with certain types of ongoing
state proceedings in which they are involved, and which
provide an adequate opportunity to raise the constitutional
claims.” Laurence H. Tribe, American Constitutional
Law § 3-28, at 569-70 (3d ed. 2000).
  Younger abstention is appropriate only when there is
an action in state court against the federal plaintiff and
the state is seeking to enforce the contested law in that
proceeding. While the doctrine was initially limited in its
application to pending state criminal prosecutions, its
scope has been expanded to apply to state judicial and
administrative proceedings in which important state
interests are at stake. See Erwin Chemerinsky, Federal
Jurisdiction § 13.3.3-13.3.4, at 817-27 (4th ed. 2003). “The
policies underlying Younger are fully applicable to non-
criminal judicial proceedings when important state
interests are involved. The importance of the state
interest may be demonstrated by the fact that the non-
criminal proceedings bear a close relationship to proceed-
ings criminal in nature . . . .” Middlesex County Ethics
Comm’n v. Garden State Bar Assoc., 457 U.S. 423, 432
(1982) (internal citations omitted). When the state pro-
ceeding is civil, Middlesex County Ethics Comm’n requires
federal courts to “abstain from enjoining ongoing state
proceedings that are (1) judicial in nature, (2) implicate
important state interests, and (3) offer an adequate
opportunity for review of constitutional claims . . . .”
Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998).
There is no question that the quasi-criminal prosecution of
the violation of an ordinance, see Ciotti v. County of
6                                               No. 05-4630

Cook,712 F.2d 312, 313 (7th Cir. 1983), is an adequate
state proceeding for the purposes of Younger: we have held
so in the past, e.g., Mannheim Video, Inc. v. County of
Cook, 884 F.2d 1043, 1044 (7th Cir. 1989); Ciotti, 712 F.2d
at 313, and 41 News offers no argument otherwise.
   The existence of an adequate state enforcement action
is necessary for Younger abstention, but it is not suf-
ficient if, as here, the filing of the federal action preceded
the state suit. (This reflects a rough first-in-time principle
that courts normally follow. 41 News filed this suit on
November 12, 2004; Lake County filed the enforcement
action seven months later, on June 13, 2005.) When the
federal suit is filed first, the court must also consider the
progress of the federal action before deciding whether
abstention is appropriate. See Ciotti, 712 F.2d at 313.
Here, 41 News claims that the federal action had ad-
vanced enough that the district court erred by deciding to
yield to the state proceeding.
  Indeed, 41 News appears to go further and to argue that
federal courts should never abstain if the state enforce-
ment proceeding is filed after the federal suit. That
argument, however, is a non-starter after Hicks v.
Miranda, supra. As the Court concluded in Hicks,
“where state criminal proceedings are begun against the
federal plaintiffs after the federal complaint is filed but
before any proceedings of substance on the merits have
taken place in the federal court, the principles of Younger
v. Harris should apply in full force.” 422 U.S. at 349.
Hicks went on to explain that “the district court must
consider the progress of the federal action. The district
court must abstain if there have been no ‘proceedings of
substance on the merits . . . in the federal court.’ ” Ciotti,
712 F.2d at 313 (quoting Hicks, 422 U.S. at 349).
  41 News makes much ado over the progress that had
been achieved in its federal case, alternately submitting
No. 05-4630                                               7

that the case has progressed beyond an embryonic
stage and that Lake County prevented the suit from
significantly progressing through its motions to dismiss. In
support of the former point, it argues that the briefing
before the district court “involved issues significantly
more complex than mere jurisdictional or pleading con-
cerns” and “went into great depth regarding the merits of
the case, evaluated alleged ‘claim preclusion,’ and in-
cluded an extensive discussion of each and every ‘claim,’
and the complex constitutional issues involved therein.” In
support of the latter, 41 News comes close to recognizing
that its case has hardly advanced, but it complains that
dismissal would be unjust because it would “allow the
County to prevent the ‘maturation’ of the case through . . .
their successive Motions to Dismiss and then seek to
have the case subject to abstention on the basis of any
argument that the case was ‘embryonic.’ ”
  We have examined the federal case independently, and
we have no trouble concluding that nothing important
relating to the merits has happened yet. The parties
have not briefed and the court did not consider any issue
related to the merits; no discovery has occurred. The
briefs that have been filed dealt with Lake County’s res
judicata and Younger arguments. The district court’s
denial of the County’s first motion to dismiss and its grant
of the second “was not a decision relating to the underlying
issue in the case—the constitutionality of the ordinance.”
Ciotti, 712 F.2d at 314. Like a finding about standing,
see id., or a ruling on a motion to dismiss for failure to
state a claim, see Mannheim Video, 884 F.2d at 1045-46,
the preliminary matters addressed here were not suffi-
ciently related to the merits to satisfy the standard in
Hicks.
  The only question that remains is whether 41 News had
an adequate opportunity to raise its constitutional chal-
lenge to the Adult Use Ordinance in the state enforcement
8                                               No. 05-4630

action. “Abstention certainly accomplishes nothing if the
federal plaintiff cannot even raise its federal constitutional
challenges in the state proceeding; it merely delays the
inevitable federal action following the state proceeding
and postpones the possible vindication of the federal
plaintiff ’s constitutional rights.” Id. at 1045. Although 41
News has a few veiled allusions to “state tribunal bias
and prejudice in prejudging a controversy,” it advances
no reason to find that the state court did not provide an
adequate opportunity for it to raise its constitutional
challenges.
  We recognize that 41 News would prefer to be in fed-
eral court, understandably enough since the state courts
have already upheld the ordinance, but its preferences
and the earlier rulings of the state courts carry no weight
under Younger. Denial of a preferred federal forum for
federal claims is often the result of the application of
Younger abstention, see Tribe, American Constitutional
Law § 3-30, at 584, as well as other doctrines promoting
comity. The Supreme Court has “repeatedly held, to the
contrary, that issues actually decided in valid state-
court judgments may well deprive plaintiffs of the ‘right’
to have their federal claims relitigated in federal court.
This is so even when the plaintiff would have preferred not
to litigate in state court, but was required to do so by
statute or prudential rules.” San Remo Hotel, L.P. v. City
and County of San Francisco, Cal., 545 U.S. 323, 342
(2005) (internal citations omitted).
  Ultimately, as this court declared in Ciotti, “ ‘one who
decides to violate a state law that he believes to be uncon-
stitutional may find that he has thereby submitted him-
self to the jurisdiction of the state courts.’ This some-
times is true even if the violation follows the filing of the
federal action.” 712 F.2d at 315 (quoting People of the State
of Illinois v. General Electric Co., 683 F.2d 206, 212 (7th
No. 05-4630                                                9

Cir. 1982)). Like other plaintiffs whose efforts to choose a
federal court run up against the federalism concerns
expressed in Younger, 41 News’s “remedy is to plead the
unconstitutionality of the statute as a defense in the
state court proceeding.” Hoover v. Wagner, 47 F.3d 845,
848 (7th Cir. 1995). (Now that it has done so and lost in
the first round, the preclusion issues that Lake County
was trying to raise earlier will become relevant; because
we decide this appeal on the basis of Younger, however, we
have no additional comment on the County’s alternative
arguments.)
  We address only one final point. In its reply brief, 41
News, perhaps recognizing that this case falls squarely
within the ambit of the Younger doctrine, argues that we
must balance a variety of factors in deciding whether the
district court should abstain. This claim is misplaced. It is
confusing the doctrine associated with Colorado River
Water Conservation District v. United States, 424 U.S. 800
(1976), with Younger. See also Moses H. Cone Hospital v.
Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983); Cigna
HealthCare of St. Louis v. Kaiser, 294 F.3d 849, 852 (7th
Cir. 2002). Unlike Colorado River abstention, which is
“disfavored” even where the necessary parallel state
proceeding exists, see Kaiser, 294 F.3d at 852, “Younger v.
Harris and its progeny espouse a strong federal policy
against federal-court interference with pending state
judicial proceedings absent extraordinary circumstances.”
Middlesex County Ethics Comm’n, 457 U.S. at 431.
                         *   *    *
  The judgment of the district court is AFFIRMED.
10                                       No. 05-4630

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—6-27-07
