Opposition — Migra v. Warren City School District Board of Education

~

No. 82-738

FILED

In the Supreme Court NOV 24 1982

of the United States

ALEXANDER L. STEV*S

Ocroser TERM, 1982 mt TAK

DR. ETHEL MIGRA,

Petitioner,

vs.

WARREN CITY SCHOOL DISTRICT

BOARD OF EDUCATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

James L. MESSENGER

HENDERSON, COVINGTON, STEIN,

Doncuess & MESSENGER

600 Wick Building

Youngstown, Ohio 44503

Telephone (216) 744-1148

Counsel for Warren City School

District Board of Education

Joun C. BURKHOLDER

Means, BICHIMER, BURKHOLDER

& Baxer Co., L.P.A.

42 East Gay Street

Columbus, Ohio 43215

Telephone (614) 221-3135

Counsel for Individual

Respondents Swan, Angelo,

Reuben, Tesner, Milheim,

and Miller

RONALD CULP. P.O. BOX 26. WORTHINGTON, OHIO (614) 846-7025

QUESTION PRESENTED

1. Does the docrine of res judicata bar a second

action in federal court under 42 U.S.C. Section 1983 for

redres» of a First Amendment claim where a prior state

court action between the same parties and based on the

same operative facts as the state court claims deter-

mined all the issues raised, and the state court was a

court of competent jurisdiction to determine a First

Amendment claim if such claim had been raised

therein?

LIST OF ALL PARTIES

Petitioner: Dr. Ethel D. Migra

Respondents: Warren City [Ohio] School District

Board of Education

Catherine O. Swan

Henry J. Angelo

Willard T. Reuben

Raymond Tesner

Mary Wilheim

Barbara Miller

{Individual Board Members]

TABLE OF CONTENTS

ee ee ee ee ee i

OO eee ee ee ae ee ii

Wen ccc ccc cece iv

Statement of the Cass 1

Summary ef Anett 4

r ˙Ü—̃⁰˙mꝛmů mC . neee een 5

„nns ne ees 10

iii

TABLE OF AUTHORITIES

Cases

Allen v. McCurry, 449 U.S. 90 (1980) .... 4, 5,6,7

Blankner v. Chicago, 504 F.2d 1037, 1042 (7th Cir.

1974), cert. denied 421 U.S. 948, 95 S.Ct. 1678,

GLA 101 (1076) ww tt tt ccc ee 8

Coogan v. Cincinnati Bar Assn., 431 F.2d 1209 (6th

Cir. 1970), cert. denied, 401 U.S. 939 7

Cromwell v. County Sac., 94 U.S. 351, 352 24 L.Ed.

111110 5, 7

Deane Hill Country Club, Inc. u. City of Knoxville,

379 F.2d 321, 325 (6th Cir. 1967), cert. denied

D 5

Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508

D ee Sar Ee ee 9

Green v. American Broadcasting Companies, Inc.,

572 F.2d 628, 632 (8th Cir. 1978) ........ 8

Goodrich v. Supreme Court of South Dakota, 511

F.2d 316, 318 (8th Cir. 1975) .......... 8

Jackson v. Kurtz, 65 Ohio App.2d 152, 156 (1979) 9

Jenson v. Olson, 353 F.2d 825, 827 (8th Cir. 1965) 8

Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir.),

cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42

L.Ed.2d 316 (1970) 8

Mayer v. Distel Tool and Machine Co., 556 F.2d 798

II 7

Montana v. United States, 440 U.S. 147, 153 (1979) 5

Rhodes v. Mayer, 334 F.2d 709, 716 (8th Cir. 1964) 8

Robbins v. District Court, 592 F.2d 1015, 1017-18

IL 7, 8

Scoggin v. Schrunk, 522 F. 2d 436, 437 (9th Cir.

1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 807,

reer 8

Spence v. Latting, 512 F. 2d 93, 98 (10th Cir. 1975),

cert. denied, 423 U.S. 899% 9

Constitution and Statutes

Constitution of the United States:

t 2

, . 4. 5

Er ee 4

Fourteenth Amendment 3, 4

Constitution of the State of Ohio:

Pg RS eee re ee a eee 9

DLE 7

42 U.S. C., Section 1981 (Civil Rights Act of 1871) 6

42 U.S. C., Section 1983333 .. 3, 5, 9, 10

ohr r 3

Ohio Revised Code, Section 121.22 (Ohio's

„ 2 » ree 2

Ohio Revised Code, Section 2305.01 ......... 9

Ohio Revised Code, Section 3313.16 ......... 2

STATEMENT OF THE CASE

The following is submitted to supplement the state-

ment of the case offered by petitioner, Dr. Ethel D.

Migra.

STATE COURT ACTION:

Petitioner's contract of employment with the

respondent, Warren City School District Board of

Education (hereinafter Board),was renewed on April 17,

1979 as a courtesy to petitioner and on the sole premise

that petitioner would immediately thereupon submit

her resignation, which she did not do. When it became

apparent to the Board that petitioner would not do as

represented, it took action on April 24, 1979, prior to the

statutory deadline, to non-renew her contract of employ-

ment.

When petitioner had learned of the date of the

meeting at which the Board intended to non-renew her

contract (April 24, 1979), she consulted an attorney.

After such consultation, and on the advice of counsel,

petitioner sent a purported letter of acceptance of the

Board’s first resolution renewing her contract of employ-

ment to the Superintendent of Schools. This letter

(which was back-dated to April 18, 1979) was delivered

to the Superintendent prior to the April 24 meeting.

Nevertheless, the Board non-renewed petitioner’s con-

tract of employment and notified her prior to the

statutory deadline of April 30.

The state court complaint contained five causes of

action: (1) illegal non-renewal of an employment con-

tract; (2) anticipatory breach of contract; (3) conspiracy

of the individual Board members to deprive plaintiff of

contract rights; (4) violation of Ohio’s “Sunshine Law”;

and (5) conducting a public meeting not called pursuant

to law. After trial, the state court found that petitioner

had a valid contract of employment, that the meeting of

April 24, 1979 wherein petitioner’s contract was non-

renewed was an illegal meeting due to the technical

failure of the notice requirements of Ohio R.C. Section

3313.16, and that Ohio’s “Sunshine Law” (Ohio R.C.

Section 121.22) had not been violated by the Board. The

state court did not rule on conspiracy charges alleged

against the individual defendants, a claim that was later

voluntarily dismissed by petitioner on July 2, 1980.

In finding for the petitioner and against the Board

on the contract claim, the state court said:

[T]he relationship between a teacher and a

board of education is contractual and one that

is protected against impairment by any state

law by Article I Section 10 of the United States

Constitution and by the Due Process Clause of

the Fourteenth Amendment, subject to the

qualification that pertinent state statutes in ef-

fect at the time a contract is formed are to be

read into it.

No claims or findings of First Amendment violations

were made in the state court proceeding.

FEDERAL ACTION:

On July 10, 1980, petitioner filed the instant suit in

federal court under 42 U.S.C. Sections 1983 and 1985

against the same parties to the state court suit and aris-

ing out of the same facts and circumstances as the state

claim. In this suit, petitioner alleged, in addition to the

facts set forth in the state claim, that her First Amend -

ment rights were violated by the conduct of the Board

and the individual defendants.

The district court held that all petitioner’s federal

claims were barred by the doctrine of res judicata. (See

Appendix to Petition for Certiorari at C-17 et seq.) This

decision was summarily affirmed by the Sixth Circuit.

(Id. at A-15).

SUMMARY OF ARGUMENT

The doctrine of res judicata is applicable to Section

1983 actions, Allen v. McCurry, 449 U.S. 90 (1980).

Thus, where a state court has determined between the

same parties Fifth and Fourteenth Amendment

property and due process rights regarding an employ-

ment contract, as well as statutory rights relative to

notice requirments of meetings of boards of education,

res judicata will bar petitioner's same claims between

the same parties set forth in a federal court Section 1983

action, including First Amendment claims that could

have been raised in the state action but were not.

ARGUMENT

In Montana v. United States, 440 U.S. 147, 153

(1979), this Court held that under the doctrine of res

judicata, “a final judgment on the merits bars further

claims by parties or their privies based on the same

cause of action.“ In Allen u. McCurry, 449 U.S. 90

(1980) this Court again defined res judicata, stating:

Under res judicata, a final judgment on the

merits of an action precludes the parties or

their privies from relitigating issues that were

or could have been raised in that action.

Cromwell v. County Sac., 94 U.S. 351, 352, 24

L. Ed. 195.

449 U.S. at 94 (emphasis added).

In the case at bar, there have been two actions,

between parties and privies, one of which has gone to

judgment in state court and the other which is in federal

court and now before this Court. The cause of action in

both, however, is singular, has been disposed of by the

state court. Thus, petitioner’s claims are now barred in

federal court by the docrine of res judicata.

Petitioner argues that the issues in the state court

action are not the equivalent of the issues she raises in

her Section 1983 federal claim and that the doctrine of

res judicata is, therefore, not applicable. The record in

this case, however, indicates to the contrary. The record

also reveals that all issues but petitioner’s First Amend-

ment claim were disposed of by the state court, and that

such court could have decided the First Amendment

claim had it been raised. Deane Hill Coutry Club, Inc. v.

City of Knoxville, 379 F.9d 321, 325 (och Cir. 1967), cert.

denied, 389 U.8. .

Petitioner’s reliance on Allen v. McCurry, 449 U.S.

90 (1980) is somewhat bewildering, fcr the majority

opinion of the Court in that case rejected any arguments

that the principle of res judicata did not apply to Sec-

tion 1983 actions, and stated:

Because the requirement of mutuality of estop-

pel was still alive in the federal courts until

well into this century . ., the drafters of the

1871 Civil Rights Act, of which section 1983 is a

part, may have had less reason to concern

themselves with rules of preclusion than a

modern Congress would. Nevertheless, in 1871

res judicata and collateral estoppel could cer-

tainly have applied in federal suits following

state court litigation between the same parties

or their privies, and nothing in the language of

section 1983 remotely expresses any congres-

sional intent to contravene the common law

rules of preclusion .... Section 1983 creates a

new federal cause of action. It says nothing

about the preclusive effect of state-court judg-

ments.

Moreover, the legislative history of section 1983

does not in any clear way suggest that Congress

intended to repeal or restrict the traditional

doctrines of preclusion. The main goal of the

Act was to override the corrupting influence of

the Ku Klux Klan and its sympathizers on the

governments and law enforcement agencies of

the Southern States .., and of course the

debates show that one strong motive behind its

enactment was grave congressional concern

that the state courts had been deficient in

protecting federal rights .... But in the context

of the legislative history as a whole, this con-

gressional concern lends only most equivocal

support to any argument that, in cases where

the state courts have recognized the con-

stitutional claims asserted and provided fair

procedures for determining them, Congress in-

tended to overide section 1738 [the “full faith

and credit“ statute] or the common-law rules

of collateral estoppel and res judicata. Since

repeals by implication are disfavored ..., much

clearer support then this would be required to

hold that section 1738 and the traditional rules

of preclusion are not applicable to section 1983

suits.

449 U.S. a 97-99 (emphasis added) (citations omitted).

The Allen court definition of res judicata cited the

Supreme Court case of Cromwell u. County Sac, 94 U.S.

351, and defined res judicata as precluding not only is-

sues which were raised in a prior action but also those is-

sues which could have been raised in that action. 449

U.S. at 94. This is in accord with the Sixth Circuit's

holdings in Coogan v. Cincinnati Bar Assn., 431 F.2d

1209 (6th Cir. 1970), cert. denied, 401 U.S. 939, and

Mayer v. Distel Tool and Machine Co., 556 F.2d 798

(6th Cir. 1977).

Other circuit courts are in accord with the proposi-

tion that res judicata applies in section 1983 cases to

constitutional issues which could have been raised in

prior litigation between parties but were not. In the

Eighth Circuit case of Robbins v. District Court, 592

F.2d 1015, 1017-18 (8th Cir. 1979) the court said:

4

In Green v. American Broadcasting Com-

panies, Inc., 572 F.2d 628, 632 (8th Cir. 1978)

we held that an issue may not be relitigated in

a second lawsuit where that issue had previous-

ly been litigated in a prior lawsuit which in-

volved the same cause of action. Furthermore,

issues which might have been raised in the first

lawsuit may not be raised in a second lawsuit

arising out of the same cause of action.

While Green v. American Broadcasting Com-

panies, Inc., supra, did not involve con-

stitutional issues, this circuit and several other

circuits have held that the principle of res

judicata applies to section 1983 actions and

operates as a bar to the relitigation of con-

stitutional issues actually raised as well as to

constitutional issues that could have been

raised in a prior lawsuit if the second suit con-

cerns the same operative nucleus of fact.

Goodrich v. Supreme Court of South Dakota,

511 F.2d 316, 318 (8th Cir. 1975); Jenson v.

Olson, 353 F.2d 825, 827 (8th Cir. 1965);

Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir.

1964); Scoggin v. Schrunk, 522 F.2d 436, 437

(9th Cir. 1975), cert. denied, 423 U.S. 1066, 96

S.Ct. 807, 46 L.Ed.2d 657 (1976); Blankner v.

Chicago, 504 F.2d 1037, 1042 (7th Cir. 1974),

cert. denied, 421 U.S. 948, 95 S.Ct. 1678, 44

L.Ed.2d 101 (1975); Lovely v. Laliberte, 498

F.2d 1261, 1263 (Ist Cir.), cert. denied, 419

U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974).

(Emphasis added.)

Accord, Spence v. Latting, 512 F.2d 93, 98 (10th Cir.

1975), cert. denied, 423 U.S. 896.

In the state court proceeding, petitioner had every

opportunity to raise and litigate the constitutional

claims which she has raised in this action. The state and

federal courts have concurrent jurisdiction to hear and

decide constitutional issues. Dowd Box Co. v. Courtney,

368 U.S. 502, 507-508 (1962); see also Jackson v. Kurtz,

65 Ohio App. 2d 152, 156 (1979) (Ohio courts have con-

current jurisdiction of Section 1983 claims). Specifical-

ly, Ohio Revised Code Section 2305.01 and Article IV of

the Constitution of the State of Ohio provided the Com-

mon Pleas Court with jurisdiction over petitioner’s

federal claims.

In light of the foregoing, respondents respectfully

submit that petitioner, having had the opportunity to

litigate her federal claims in the courts of Ohio, and hav-

ing failed to do so, is now precluded from litigating these

claims in a new action in federal court. The decision of

the United States District Court and the Sixth Circuit

Court of Appeals to apply traditional claim preclusion

concepts in this Section 1983 action was sound and well-

reasoned, and should be affirmed by this Court.

CONCLUSION

In light of the foregoing, it is clear that the doctrine

of res judicata is applicable in the federal courts to bar

claims under 42 U.S.C. Sections 1983 and 1985 which

could have been litigated in a prior state court

proceeding between the same parties, but were not.

Respondents Warren City School District Board of

Education and individual board members Catherine O.

Swan, Henry J. Angelo, Willard T. Reuben, Raymond

Tesner, Mary Milheim, and Barbara Miller accordingly

urge most strongly upon this Court that it deny the peti-

tion for writ of certiorari filed herein.

10

Respectfully submitted,

JAMES L. MESSENGER

HENDERSON, COVINGTON, STEIN,

DoncHEss & MESSENGER

600 Wick Building

Youngstown, Ohio 44503

(216) 744-1148

Counsel for Warren City School

District Board of Education

JOHN C. BURKHOLDER

MEans, BICHIMER, BURKHOLDER

& Baker Co., L. P. A.

42 East Gay Street

Columbus, Ohio 43215

(614) 221-3135

Counsel for Individual

Respondents Swan, Angelo,

Reuben, Tesner, Milheim,

and Miller

11