Respondents Brief — Migra v. Warren City School District Board of Education

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No. 82-738 1983

— =. STEVAS,

In The CLERK

Supreme Court of the United States

October Term, 1982

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 FOR RESPONDENTS

—o

JAMES L. MESSENGER

HENDERSON, COVINGTON, STEIN,

DONCHESS & MESSENGER

600 Wick Building

Youngstown, Ohio 44503

Telephone (216) 744-1148

Counse! for Warren City School

District Board of Education

JOHN C. BURKHOLDER

(Counsel of Record)

NICHOLAS A. PITTNER

KIMBALL H. CAREY

MEANS, BICHIMER, BURKHOLDER

& BAKER CO., L.P.A,

14th Floor

42 East Gay Street

Columbus, Ohio 43215

Telephone (614) 221-3135

Counse! for Individual Respondents

Swan, Angelo, Rubin, Tesner,

Milheim, ana Miller

COCKLE PRINTING CO., 231: Dowgias St.. Omaha 66102

—

QUESTIONS PRESENTED

1. Is a plaintiff in a federal court action brought

pursuant to 42 U.S.C. $1983 precluded from litigating

issues that she might have raised, but in fact did not raise,

in a previous state court action between the same parties

and based on the same transaction, occurrence, or series

of transactions and occurrences?

2. Do petitioner’s claims for deprivation of her “lib-

erty interest in her reputation” sound sufficiently in def-

amation and tort to be barred by Ohio’s one-year statute

of limitations on actions for defamation and intentional

torts?

TABLE OF CONTENTS

Page

Questions Presented i

Statement of the Case 1

Summary of Argument

Argument:

I. The Full Faith and Credit Clause (28 U.S.C.

§ 1738) requires the federal courts sitting in

Ohio to bar subsequent actions between the same

parties arising out of the same transaction, oc-

currence, or series of transactions and occur-

rences. 5

A. The federal courts must give the same pre-

elusive effect to state court judgments as

would be given under the law of the state in

which the action arose. 5

B. Under the most recent pronouncemenis of the

Ohio Supreme Court on res judicata, a party

is barred from a second action against the

same defendants seeking relief on federal

constitutional grounds where such grounds

could have been argued in a prior action

arising out of the same transaction, occur-

rence, or series of (ransactions and occur-

rences, but were not. 7

II. There is nothing in the legislative history or the

prior decisions of this Court which would sup-

iil

TABLE OF AUTHORITIES

Cases

A.L. Englander Motor Co. v. DeGaetano, 120

Ohio St. 448, 166 N. E. 2d 372 (1929) 0. 35

Allen v. MeCurry, 449 U.S. 90 (1980).....2, 4, 6, 23, 25, 28

Anderson v. Minter, 32 Ohio St. 2d 207, 291

N. E. 2d 457 (1972) dieiiisiaas?iae

Anderson v. Richards, 173 Ohio St. 50, 179 N.

E. 2d 918 (1962) eee

Broadway Management, Ine. v. Godale, 55 Ohio

App. 2d 49, 378 N. E. 2d 1072 (1977) S18

Castorr v. Brundage, 674 F.2d 531 (6th Cir.

1982), cert. denied, — U. S. —, 103 S. Ct.

240 (1982) 26

Charles A. Burton, Inc. v. Durkee, 162 Ohio St.

433, 123 N. E. 2d 432 (1954) ze 9

Clark v. Baranowski, 111 Ohio St. 436, 145 N.

E. 76 (1924) 9

Covington and Cincinnati Bridge Co. v. Sar-

gent, 27 Ohio St. 233 (1875) 9,19

Cromwell v. County of Sac, 94 U.S. 351 (1877)... 23

De Marrais v. Community College of Allegheny

County, 407 F.Supp. 79 (W.D. Penn. 1975);

aff’d 571 F. 2d (3rd Cir. 1978)

Dowd Box Co. v. Courtney, 368 U.S. 502

(1962) 18

Faweett v. G. C. Murphy & Co., 46 Ohio St. 2d

245, 348 N. E. 2d 291 (1976) 21

Henderson v. Ryan, 13 Ohio St. 2d 31, 233 N.

E. 2d 506 (1968) 9, 11,13

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)... _ 27

TABLE OF AUTHORITIES—Continued

Page

Jackson v. Kurtz, 65 Ohio App. 2d 152, 416 N.

E. 2d 1064 (1979) . 18

Jeter v. Hewitt, 63 U.S. (22 How.) 352, 363-

64 (1859) 30

Johnson v. Railway Express Agency, 421 U.S.

454 (1975) 5, 33

Johnson’s Island v. Board of Township Trus-

tees, 69 Ohio St.2d 241, 431 N.E.2d 672

(1982) 3, 7, 14, 16, 17, 18, 19, 21

Kahn v. Cincinnati Times-Star, 10 Ohio Dee.

599 (1890), aff’d, 52 Ohio St. 662, 44 N. E.

1132 (1895) 35

Kilgore v. City of Mansfield, 679 F.2d 632

(6th Cir. 1982) 5, 33

Kremer v. Chemical Construction Corporation,

— U.S. —, 102 S. Ct. 1883 (1982) 2, 6, 24, 25

Lee v. City of Peoria, 685 F. 2d 196 (7th Cir.

1982) 26

Lombard v. Board of Educ., 502 F.2d 631

(2d Cir. 1974), cert. denied, 420 U.S. 976 (1975) 26

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

1974), cert. denied 419 U.S. 1038 (1974) .W.-. = 26

MacMurray v. Bd. of Trustees of Bloomsburg,

8. C., 428 F. Supp. 1171 (M. D. Pa. 1977)

Mason v. Owen-Illinois, Inc., 517 F.2d 520

(6th Cir. 1975)

Mills v. Whitehouse Trucking, 40 Ohio St. 2d

55, 320 N. E. 2d 668 (1974) 35

Myers v. Pennypack Woods Home Ownership

Assn., 559 F. 2d 894 (3rd Cir. 1977)

TABLE OF AUTHORITIES—Continued

Page

New Jersey Edue. Assn. v. Burke, 579 F.2d

764 (3d Cir. 1978), cert. denied, 439 U.S.

894 (1978) 26

Norwood v. McDonald, 142 Ohio St. 299, 52 N.

E. 2d 67 (1943) 8,9

Patsy v. Board of Regents, — U.S. —, 102 8S.

Ct. 2557 (1982) 29

Pear! v. Koch, 5 Ohio Dee. 5 (1894) 2000. | 84

Perry v. Sindermann, 408 U.S. 593 (1972) ............... 31

Robb v. Connolly, 111 U.S. 624 (1884) 00 31

Robbins v. District Court, 592 F. 2d 1015 (8th

Cir. 1979) .. 26

Rush v. Maple Heights, : 167 Ohio St. 2d 221,

147 N. E. 2d 599 (1958) .. 8

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

1975), cert. denied, 423 U.S. 1066 (1976) WW... 26

Sharp v. Shelby Mutual Insurance re ny

15 Ohio St. 3d 134, 239 N. E. 2d 49 (1968) 11, 16

Shoemaker v. City of Cincinnati, 68 Ohio St.

603, 68 N. E.1 (1903) = 30

Southern Jam, Inc. v. Robinson, 675 F. 2d 94

(5th Cir. 1982) .... 26

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

1975), cert. denied, 423 U.S. 896 (1975) 0. 26, 28

Starr v. Rupp, 421 F. 2d 999 (6th Cir. 1970) _..... 35

State v. Cole, 2 Ohio St. 3d 112, 443 N. E. 2d

169 (1982) 18

State v. Roberts, 1 Ohio St. 3d 36, 437 N. E.

2d 598 (1982) 18

Stromberg v. Board of Educ., 64 Ohio St. 2d

98, 413 N. E. 2d 1184 (1980) 18

TABLE OF AUTHORITIES—Continned

Page

Universal Underwriters v. Shuff, 67 Ohio St.

2d 172, 423 N. E. 2d 417 (1981) oo. 17

Vasu vy. Kohlers, Ine., 145 Ohio St. 321, 61

N.E. 2d 707 (1945) occ 7,8

Wentz v. Richardson, 165 Ohio St. 558, 138

N. E. 2d 675 (1956) 35

Whitehead v. General Telephone Co., 20 Ohio

St. 2d 108, 254 N. E. 2d 10 (1969) 20

Wyler v. Tripi, 25 Ohio St. 2d 164, 267 N. E.

2d 419 (1971) a

Younger v. Harris, 401 U.S. 37 (1971) wo.) 27

Outro Revisep Cope

Section 2305.09 20

Section 2305.11 avsnsemDy Bdy D4, 35

Tr 19

Section 4112.01 21

Unirep States Cope

Ee 21

28 U.S.C. $1738 25,62, 27, 31, 36

29 U.S.C. 4 623 21

42 U.S.C. 4 1983 3, 4, 5, 22, 23, 24, 25,

26. 29, 32, 33, 36

42 U.S.C. 4 2000e 21

Oruer AUTHORITIES

Currie, Res Judicata: The Neglected Defense

45 U. Chi. L. Rev. 317 (1978) 26, 27, 30

Ohio Rules of Civil Procedure, Rule 13... 12, 13

vii

TABLE OF AUTHORITIES—Continued

Pages

Ohio Rules of Civil Procedure, Rule 42 (B).....3, 20, 21

Ohio Constitution, Article TV, 9 5 cccccnne 12

United States Constitution, Article VI, clause

2 (Supremacy Clause) ... 30, 31

No. 82-738

s*.

In The

Supreme Court of the United States

October Term, 1982

ss,

DR. ETHEL MIGRA,

Petitioner,

vs.

WARREN CITY SCHOOL DISTRICT

BOARD OF EDUCATION, et al.,

Respondents.

s*,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

‘."

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE

In the interest of brevity, respondents will not submit

a separate statement of the case. Respondents do wish

to clarify three particular points. First, the nonrenewal

of petitioner was accomplished in order to abolish the

position of Elementary Education Supervisor, a position

which has never since been filled. Second, the Board’s

action in renewing petitioner’s contract was accomplished

solely as a courtesy to petitioner, on the understanding

that she would be submitting her resignation, which she

did not do. And firally, petitioner’s favorable judgment

in the state court was affirmed by the state court of ap-

peals, after which review was denied hy the Ohio Supreme

Court. As a result, petitioner has been paid back pay for

the 1979-80 school year (her nonrenewal in April of 1980

was not challenged), minus unemployment compensation

received.

However, respondents must vigorously object to the

statement of the case set forth in the brief of the amicus

curiae American Civil Liberties Union. First, such state-

ment is purely gratuitous in view of Rule 36.5 of this

Court, which limits an amicus to a statement of interest,

summary of argument, argument, and conclusion. Sec-

ond, and more importantly, the opening paragraphs of

this statement recite as “facts” certain matters which are

not facts at all, but merely allegations of fact made by

petitioner in her federal complaint. Therefore, respond-

ents respectfully submit that the statement of the case of

said amicus is, in the above respects, inappropriate, and

not properly before this Court.

—_ *

/—

SUMMARY OF ARGUMENT

1. In applying res judicata principles, the federal

courts must give to state-court judgments the same pre-

clusive effect which the state courts themselves would give

to such judgments. This rule is founded on the “full

faith and credit” statute (28 U.S. C. 4 1738) as interpreted

by this Court in Allen v. McCurry, 449 U.S. 90 (1980) and

Kremer v. Chemical Construction Corporation, — U. 8. —.

102 8. Ct. 1883 (1982).

Under this rule, petitioner’s claims in this case were

properly found to be barred as res judicata, since Ohio

law precludes second actions between the same parties or

their privies arising out of the same transaction, oecur-

rence or series of transactions and occurrences. The argu-

ments of petitioner and the various amici to the contrary

are based on the erroneous assumption that under Ohio

law, petitioner had more than one “cause of action” upon

which she was entitled to bring suit. While it is true that

in earlier times Ohio law might have defined a “cause of

action” in the narrow way argued by petitioner, it does

not do so today. More recent developments in Ohio law,

culminating in the decision in Johnson’s Island, Inc. v.

Board of Trustees, 69 Ohio St. 2d 241, 431 N. E. 2d 672

(1232), indicate clearly that a “cause of action” is now

much more broadly defined for claim preclusion purposes.

It is also significant to note that in this 1982 decision, the

Ohio Supreme Court barred a subsequent action based on

federal constitutional claims where, as here, such claims

could have been raised in the first proceeding, but were

not.

The fact that the state trial court separated and con-

tinued petitioner’s conspiracy claim, and subsequently ap-

proved the voluntary dismissal! of such claim, is of no

avail to petitioner. The trial court was merely exercis-

ing its discretionary authority, under Ohio Civil Rule 42

(B), to order a separate trial of a certain issue before it.

At one time, respondents were still susceptible to further

state court proceedings on this issve. However, petitioner

cannot seize on this fact as an opportunity to raise entirely

new claims, in a new forum, which she failed to raise in

the first proceeding. Such a result is contrary to both

Rule 42 and basic claim preclusion concepts, and should

be rejected.

2. In this case, petitioner attempts to avoid the pre-

clusive effect of her first, state-court action against these

respondents by arguing that in actions under 42 U.S.C.

§ 1983, the federal courts should apply the concept of issue

preclusion (i. e., collateral estoppel) but not the concept

of claim preclusion (1. ¢., res judicata or estoppel by judg-

ment). Because there is nothing in the law, the legisla-

tive history, or the underlying policy concerns which would

support the creation of this new “double standard” of pre-

clusion, petitioner’s arguments here must fail.

It is clear from a reading of both A'len v. McCurry,

449 U.S. 90 (1980) and Kremer v. Chemical Construction

Corporation, — U.S. —, 102 S. Ct. 1883 (1982) that this

Court views both issue and claim preclusion concepts as

being fully applicable in Section 1983 actions. Thus,

virtually all of the federal circuits to have addressed the

question have held that claim preclusion concepts apply

fully in Section 1983 actions to bar federal claims which

could have been raised in a prior state proceeding, but

were not. One additional ground for this position is that

allowing a separate federal-court review of federal issues

is contrary to well-established principles of federal-state

comity.

Finally, the argument in favor of a dual standard of

preclusion must be rejected on policy grounds. The

burgeoning Section 1983 caseload which now threatens to

overwhelm the federal courts would only be increased by

a rule which allowed a separate federal review of federal

constitutional questions which could have been dealt with

in an earlier state court proceeding, but were not. Fur-

thermore, it would be more in the interest of sound judi-

cial administration to have federal constitutional ques-

tions determined in the state courts whenever possible:

first, because the state courts should bear equally the bur-

den of interpreting and enforcing federal law which is,

after all, the “law of the land” under the Supremacy

Clause; and second, because in many instances (including

the present case) the federal court must look to state courts

in any event for certain relevant interpretations of state

law in order to dispose of the issues before it.

3. Petitioner’s claims for defamation and impair-

ment of her “liberty interest” are barred by Ohio’s one-

year statute of limitations upon claims for defamation

and other intentional torts. (Ohio Rev. Code § 2305.11).

This result is dictated by the well-established rule that in

determining what statutes of limitation apply in § 1983

actions, the federal courts are to apply the state statute

of limitations which would be applicable in the most closely

analogous state action. Johnson v. Railway Express

Agency, 421 U.S. 454 (1975) (case under 42 U.S.C.

§ 1981); Kilgore v. City of Mansfield, 679 F. 2d 632 (6th

Cir. 1982) (Ohio Rev. Code § 2305.11 applies in § 1983

action sounding in intentional tort).

In light of the foregoing, this Court should affirm the

decisions of the trial court and the Court of Appeals for

the Sixth Circuit.

ARGUMENT

I. The Full Faith and Credit Statute (28 U.S.C.

§ 1738) requires the federal courts sitting in

Ohio to bar subsequent actions between the same

parties arising out of the same transaction, oc-

currence, or series of transactions and occurrenc-

es.

A. The federal courts must give the same preclu-

sive effect to state court judgments as would

be given under the law of the state in which

the action arose.

It is now well-settled that the “full faith and credit”

statute (28 U.S.C. 41738) | vides the proper analyti-

cal framework to be used by the federal courts in assess-

ing the preclusive effect to be given to state-court judg-

ments. As noted by this Court in Allen v. McCurry, 449

U.S. 90 (1980),

[T]hough the federal courts may look to the

common law or to the policies supporting res judicata

and collateral estoppel in assessing the preclusive ef-

fect of decisions of other federal courts, Congress has

specifically required all federal courts to give pre-

clusive effect to state-court judgments whenever the

courts of the State from which the judgments emerged

would do so:

“The ... judicial proceedings of any court of

any State ... shall have the same full faith and

credit in every court within the United States and

its Territories and Possessions as they have by

law or usage in the courts of such State... .” 28

U.S. C. $1738 (1976).

449 U.S. at 96 (citations omitted). This proposition was

recently reaffirmed by this Court in Kremer v. Chemical

Construction Corporation, — U.S. —, 102 S. Ct. 1883

(1982), wherein it is stated quite simply:

Section 1738 requires federal courts to give the

same preclusive effect to state court judgments that

those judgments would be given in the courts of the

state from which the judgment emerged.

— U.S. at —, 102 S. Ct. at 1889 (extensive footnote omit-

ted).

Thus, in both Allen and Kremer, supra—the leading

cases to apply res judicata principles in the federal-state

context—this Court has declared that it is the “full faith

and credit” statute which governs any analysis of the

preclusive effect to be accorded state-court judgments. In

accordance with this directive, the parties to the present

appeal! must now attempt to discern, as best as they can

from the most recent pronouncements of the Ohio Su-

preme Court, the current status of Ohio law on the ques-

tion of res judicata.

B. Under the most recent pronouncements of the

Ohio Supreme Court on res judicata, a party

is barred from a second action against the

same defendants seeking relief on federal

constitutional grounds where such grounds

could have been argued in a prior action aris-

ing out of the same transaction, occurrence,

or series of transactions and occurrences, but

were not.

The elaborate analyses of Ohio law offered by peti-

tioner and the various amici fail to correctly portray the

current status of Ohio law on the application of res judi-

cata principles. More specifically, petitioner and the vari-

ous amici fail to recognize and acknowledge the impact of

Johnson's Island, Inc. v. Board of Township Trustees, 69

Ohio St. 2d 241, 431 N. E. 2d 672 (1982)—tthe most recent

major pronouncement of the Ohio Supreme Court on

res judicata, and a decision which dramatically broadens

the scope of the doctrine as it now exists in Ohio.

To be sure, the courts of Ohio in earlier times applied

issue preclusion and claim preclusion concepts in a very

narrow manner. For example, under the ruling of Vasu

v. Kohlers, Inc., 145 Ohio St. 321, 61 N. E. 2d 707 (1945),

a plaintiff who suffered both personal injuries and prop-

erty damage in an automobile accident was entitled to

maintain separate actions against a defendant for each

type of injury. The theory for allowing separate actions

was that “[i]njuries to both person and property suffered

by the same person as a result of the same wrongful act

are infringements of different rights and give rise to dis-

tinct causes of action. . . .” 145 Ohio St. at 321, 61 N. E.

2d at 709 (syllabus at 7 4).

Beginning in 1958, however, the Ohio Supreme Court

embarked on a course which would lead to a significant

broadening of issue preclusion and claim preclusion con-

cepts in Ohio. In the case of Rush v. Maple Heights, 167

Ohio St. 2d 221, 147 N. E. 2d 599 (1958), the court dis-

carded the anachronistic and cumbersome “dual cause of

action” rule of Vasu v. Kohlers, supra. In doing so, the

court focused on the singular nature of the wrongful act,

and concluded that “as the defendant’s wrongful act is

single, the cause of action must be single. . . .” 167 Ohio

St. at 230, 147 N. E. 2d at 604. The new rule, which was

declared to be more in accord with “modern practice,”

167 Ohio St. 2d at 235, 147 N. E. 2d at 607, was adopted

in the hope that it might reduce “the vexatious litigation,

with its attendant confusion, which has resulted in recent

years from the filing of separate petitions by the same

plaintiff. . . .” 167 Ohio St. 2d at 234, 147 N. E. 2d at 607.

Following Rush v. Maple Heights, supra, the Ohio

courts continued to struggle with the concept of what con-

stitutes a “cause of action” for res judicata purposes. In

the present context, the definition of a “cause of action”

is crucial, since (as already noted by petitioner) the basic

rule of Ohio law is that a person is entitled to one lawsuit

for each “cause of action” that he has. Norwood v. Me-

Donald, 142 Ohio St. 299, 52 N. E. 2d 67 (1943); White-

head v. General Telephone Co., 20 Ohio St. 2d 108, 254

N. E. 2d 10 (1969). Conversely, a plaintiff in Ohio will

be barred from raising any claims in a second action which

he could have raised in a first action against the same par-

ty, see e.g., Charles A. Burton Inc. v. Durkee, 162 Ohio

St. 433, 123 N. E. 2d 432 (1954); Clark v. Baranowski, 111

Ohio St. 436, 145 N. E. 76 (1924); Covington and Cincin-

nati Bridge Co. v. Sargent, 27 Ohio St. 233 (1875), but

only if the second proceeding is based on the same “cause

of action,” see, e. g., Norwood, supra.

In 1968, the Ohio Supreme Court made two conspicu-

ous attempts to deal with the question of what constitutes

a “cause of action” for res judicata purposes. In Hender-

son v. Ryan, 13 Ohio St. 2d 31, 233 N. E. 2d 506 (1968),

the court was faced with a claim by a defendant attorney

(Ryan), that a malpractice claim against him was barred

by a previous action against him for fraud, in which he

and several other defendants had been exonerated. As

both actions arose out of the same general set of events,

the court found it necessary to address the question of

what constitutes a single “cause of action” under Ohio

law:

What then constitutes a cause of action? Al-

though the meaning given the term may vary accord-

ing to the purpose for which it is sought (United

States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 68,

53 S. Ct. 278, 280, 77 L. Ed. 619, 623), legal writers

have categorized three general views:

1. A cause of action is identical with a remedial,

or secondary, right. This definition, reminiscent of

the common-law forms of action, equates a cause of

action with each legal theory a plaintiff may have to

redress an injury even though arising from a single

wrongful act. This view has found disfavor with most

courts and authorities because it perpetuates the

pleading of legal theories instead of “a statement of

facts constituting a cause of action in ordinary and

concise language.” See Section 2309.04, Revised Code.

2. “[T]he facts from which the plaintiff’s pri-

mary right and the defendant’s corresponding pri-

mary duty have arisen, together with the facts which

constitute the defendant’s delicit or act of wrong”

give rise to a cause of action. This concept omits the

remedia! right and duty of the first definition, there-

by emphasizing substantive rights as distinct from

procedural rights. It is concerned with the wrongful

act and not with the theory of recovery.

3. A cause of action is a group or aggregate of

operative facts, limited “to a single occurrence or af-

fair, without particular reference to the resulting

legal right or rights.” This so-called “factual unit”

theory places the emphasis upon the breadth of the

transaction or occurrence rather than the particular

right of the plaintiff which has been infringed. The

broadest in scope, this definition compels the pleader

to include in his petition all elements of the transac-

tion or occurrence at the risk of splitting his cause of

action.

13 Ohio St. 2d at 33-34; 233 N. E. 2d at 508-09. In com-

paring these three basic definitions to Ohio law, the court

found that

[t]his court has previously adhered to the “primary

right-primary duty” concept, looking to the defend-

ant’s wrongful act.

However, multifold aspects of the same wrongful

act, t.e., negligence consisting of several concurrent

acts, do not permit multiple suits.

e e eo

We are obliged then, to determine whether the

case now before us involves the same wrongful act as

that from which the defendant was exonerated by the

former judgment between these parties.

13 Ohio St. 2d at 35; 233 N.E. 2d at 509-10 (emphasis

added) (citations omitted).

Significantly, the court in Henderson did not find that

the plaintiff had separate causes of action for fraud and

malpractice. It did permit the second action against Ryan,

but only because the existing joinder statute (which had

since been repealed) prevented the plaintiff from joining

the two claims against Ryan. There is no question, how-

ever, that law of Ohio as it was being declared at the time

of the Henderson decision (January of 1968), was mov-

ing toward a broader application of res judicata prin-

ciples:

Thus, the Cee no longer contains any impedi-

ment to the joinder of causes of action of the kind as-

serted by the plaintiff in this case. The statutory

changes reflect a constantly developing policy in the ~

pursuit of simplified pleadings and procedure. To

save time and to relieve court congestion, parties are

encouraged, if not commanded, to litigate all their

claims in one action, except to the extent that joinder

of multifarious and complex issues would produce

confusion and prejudice. Defendants and the courts

are thus saved from vexation caused by multiple lit-

igation.

13 Ohio St. 2d at 38; 233 N. E. 2d at 511 (emphasis added).

Later in 1968, the Ohio Supreme Court accelerated

the subtle shift toward a broader definition of a “cause

of action” which it had begun in Henderson, supra. In

Sharp v. Shelby Mutual Insurance Company, 15 Ohio St.

3d 134, 239 N. E.2d 49 (1968), the court again reviewed

the three basic definitions of the phrase “cause of action.”

15 Ohio St. 2d at 139-40; 239 N.E. 2d at 53-54. It ulti-

mately held that the plaintiff had two separate causes of

action, and was thus not barred by res judicata. In doing

so, however, the court specifically applied the third, or

“factual unit,” definition of a cause of action, 15 Ohio St.

2d at 140-41; 239 N. E. 2d at 54, which it defined in relevant

part as follows:

One concept of the term [cause of action] ... is

to the effect that as long as the same wrongful act or

transaction is the subject of litigation there is but one

cause of action without regard to the application of

rules of substantive law to additional or variational

facts which are involved and which must be consid-

ered. The test under this concept is not whether add-

ed facts constitute a material difference in plaintiff’s

right or defendant’s wrong under the substantive law,

but whether such additional facts are so closely woven

into the transaction which comprehends the defend-

ant’s wrong as to justify the court in regarding mul-

tiple interests affected and wrong done as a single

unit for the purpose of litigation.

15 Ohio St. 2d at 140; 239 N. E. 2d at 54 (emphasis added).

Consonant with this shift in Ohio law on preclusion

matters was the Ohio Supreme Court’s adoption, in 1970,

of the Ohio Rules of Civil Procedure—and in particular,

Rule 13 thereof.* Ohio Rule 13, like its federal counter-

part, establishes a compulsory counterclaim rule embody-

ing the broadest possible definition of a “cause of action”:

A pleading shall state as a counterclaim any claim

which at the time of serving the pleading the pleader

has against any opposing party, tf it arises out of the

transaction or occurrence that is the subject matter

of the opposing party’s claim and does not require

*The Ohio Supreme Court was authorized to promulgate

rules for the governance of Ohio’s courts by the “ m

Courts Amendment” to the Ohio ©onstitution, Article IV, § 5,

effective May 7, 1968.

for its adjudication the presence of third parties of

whom the court cannot acquire jurisdiction.

Ohio R. Civ. P. 13(A) (emphasis added). The policy con-

cerns served by the compulsory counterclaim rule are

clearly stated in the Staff Notes to Ohio Rule 13(A) which

provide in relevant part as follows:

A compulsory counterclaim is one which “is log-

ically related to the opposing party’s claim where

separate trials on each of their respective claims

would involve a substantial duplication of effort and

time by the parties and the courts.” See, Great Lakes

Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 at

634 (3d Cir. 1961).

The purpose of the compulsory counterclaim is to

avoid a multiplicity of suits by requiring in one action

the litigation of all claims arising from an occurrence.

(Emphasis added.)

Thus, it is clear that in the adoption of the compulsory

counterclaim rule, the Ohio Supreme Court was again

utilizing a “series of transactions or occurrences” defini-

tion of a cause of action. See Henderson, supra, 13 Ohio

St. 2d at 38; 233 N. E. 2d at 511. The absolute preclusive

effect of this rule for compulsory counterclaims not raised

has since been recognized by Ohio’s courts. See, e. g.,

Broadway Management, Inc. v. Godale, 55 Ohio App. 2d

49, 378 N. E. 2d 1072 (1977).

The 1970’s did not witness any significant develop

ments in Ohio’s position on res judicata. However, in

1980, 1981, and 1982, the Ohio Supreme Court rendered a

number of decisions calling for a broader application of

the doctrine. By far the most significant of these deci-

sions was Johnson’s Island, Inc. v. Board of Township

Trustees, 69 Ohio St. 2d 241, 431 N. E. 2d 672 (1982).

Johnson’s Island involved a zoning dispute between

a homeowners’ association and a neighboring landowner,

Johnson’s Island, Incorporated. At one time, Johnson’s

Island, Incorporated, had owned virtually all of Johnson’s

Island, a 275-acre island in Lake Erie. However, follow-

ing its purchase of the island in 1956, the corporation pro-

ceeded to subdivide the outer perimeter of the island for

the sale of residential lots. In 1975, the township in which

the island was located adopted a comprehensive zoning

plan. Under this plan, the entire island was zoned for

residential housing.

The specific dispute in Johnson’s Island related to the

operation by the corporation of a limestone quarry on the

island. The operation of this quarry required blasting

and other heavy industrial activities. Based on the 1975

zoning plan, the local homeowners’ association sought and

obtained (in 1977) a permanent injunction from the Com-

mon Pleas Court of Ottawa County prohibiting John-

son’s Island, Incorporated from conducting any quarry-

i operations on the island. In this action, the corpora-

tion had attempted to establish that the operation of the

quarry was a “prior nonconforming use.” The corpora-

tion did not challenge the constitutionality of the township

zoning regulation as applied to its quarry site. The court

of appeals affirmed the injunction, and further review was

denied by the Ohio Supreme Court.

In 1978, the corporation filed a second action in the

common pleas court seeking a declaration, inter alia, that

the zoning regulation was unconstitutional as applied to

the quarry. The trial court granted summary judgment

against the corporation on res judicata grounds, even

though the defendant in the second action was not the

homeowners’ association, but the board of township trus-

tees. The court of appeals affirmed, and the Ohio Supreme

Court certified the case for review.

In 1982, the Ohio Supreme Court affirmed the court

of appeals, and in doing so applied res judicata principles

more broadly than it ever had before. The application

of res judicata was broadened in two particular respects.

First, the Ohio Supreme Court relaxed the mutuality re-

quirement to permit the first judgment to act as a bar,

even though there was not a strict identity of parties. It

found that there was a “mutuality of interest” between the

township trustees and the homeowners’ association, even

though there was no legal privity between them, and even

though one was a public entity. 69 Ohio St.2d at 245;

431 N. E. 2d at 675.

Second, and much more importantly for present pur-

poses, the Ohio Supreme Court precluded a second action

raising certain federal constitutional claims, where such

constitutional claims could have been raised by a party

to the first action, but were not:

Decisions of this court, and of other jurisdictions,

have established that the doctrine of res judicata is

applicable to defenses which, although not raised,

could have been raised in the prior action. Accord-

ingly, if a defendant, as the appellant here, previous-

ly neglected to assert the [constitutional] defense, he

is precluded from raising it subsequently by virtue

of the existence of the judgment rendered in the form-

er action.

69 Ohio St. 2d at 245-46; 431 N.E.2d at 675. The court

stated that the above principle “accommodates the finality

of judgments,” 69 Ohio St. at 246; 431 N. E. 2d at 675, and

set forth the following underlying rationale:

“The reasoning in such cases is that a party

should have his day in court, and that that day should

conclude the matter. A party is bound then to present

his entire cause and he is foreclosed from later at-

tempting to reopen the cause as to issues which were

or could have been presented... .”

69 Ohio St. 2d at 246; 431 N. E. 2d at 675-76, quoting An-

derson v. Richards, 173 Ohio St. 50, 53, 179 N. E. 2d 918,

921 (1962).

For purposes of the present case, where this Court is

being called on to discern the current status of Ohio law, it

is crucial to recognize that in Johnson’s Island, supra, the

Ohio Supreme Court cast aside the argument of the cor-

poration that the second proceeding was not based on the

same “cause of action.” This argument was briefed and

argued to the court.* However, the court proceeded to

reject this argument and apply claim preclusion concepts

to bar the second action. 69 Ohio St. 2d at 246; 431 N. E.

2d at 675. In doing so, it necessarily found that the whole

issue of the zoning ordinance, its constitutionality, and

whether the corporation had established a prior noncon-

forming use were “so closely woven into the transaction

which comprehends the defendant’s [alleged] wrong” that

the court was justified in treating them as a “single unit

for the purposes of litigation.” Sharp, supra, 15 Ohio St.

2d at 140; 239 N.E 2d at 54. Thus, it is clear that, in

Johnson's Island, the Ohio Supreme Court openly adopted

a “series of transactions or occurrences” definition of a

cause of action, and that older theories, whereby multiple

“causes of action” could spring up from a single event, or

series of related events, have been relegated to the dustbin

of Ohio legal history.

Indeed, any doubts one might have that Ohio, in John-_

son’s Island, was broadening its definition of a “cause of

action” for claim preclusion purposes can be resolved by

an examination of the dissent in that case. It is there

noted, quite correctly, that the issues of prior nonconform-

ing use (raised in the first action) and the constitutionality

of the regulation (raised in the second action) would not

be subject to all the same items of proof. 69 Ohio St. 2d

at 251; 431 N. E. 2d at 678-79 (W. Brown, J., dissenting).

Obviously, a majority of the court did not view this as

a critical issue. The majority opted instead for a rule

which would require preclusion where, as here, there is a

fair relationship between the two issues or claims, even

though the facts necessary to prove the two claims would

not be identical.

Other cases decided shortly before Johnson’s Island

confirm the increasing tendency of the Ohio Supreme

Court to apply preclusion concepts in a broad manner. In

Universal Underwriters v. Shuff, 67 Ohio St. 2d 172, 423

N. E. 2d 417 (1981), the Ohio Supreme Court applied the

doctrine of res judicata to bar an arbitration proceeding

between two contracting parties (an insurance company

and an insured) who had previously litigated a particular

matter. Although the court recognized that the doctrine

traditionally applied only to subsequent legal actions, see

67 Ohio St. 2d at 174; 423 N. E. 2d at 418, it nevertheless

chose to extend the doctrine to arbitration proceedings

on policy grounds. For similar policy reasons, the Ohio

Supreme Court had already barred a taxpayer action chal-

lenging the constitutionality of a state statute, where con-

stitutional claims could have been raised in an earlier pro-

ceeding, but were not. Stromberg v. Board of Educ., 64

Ohio St. 2d 98, 413 N. E. 2d 1184 (1980). And, in a pair of

criminal cases, the court has more recently rejected, on

res judicata grounds, attempts in postconviction proceed-

ings to raise federal constitutional issues which could have

been raised at some earlier stage. See State v. Roberts,

1 Ohio St. 3d 36, 437 N. E. 2d 598 (1982) and State v. Cole,

2 Ohio St. 3d 112, 443 N. E. 2d 169 (1982).

In view of the foregoing survey of Ohio law, it can-

not now be plausibly maintained that the Ohio Supreme

Court, if it were faced with the question today, would per-

mit the petitioner herein to maintain a second action

against these defendants for the vindication of certain

federal constitutional rights. Petitioner has had her “day

in court, and that .. . day should [have] conclude[d] the

matter.” Johnson’s Island, supra, 69 Ohio St. 2d at 246;

431 N.E.2d at 675. Unquestionably, the courts of Ohio

would have entertained her constitutional claims had she

presented them. See Dowd Box Co. v. Courtney, 368 U.S.

502, 507-08 (1962) (state and federal courts have con-

current jurisdiction to hear and decide federal constitu-

tional issves); accord, Jackson v. Kurtz, 65 Ohio App. 2d

152, 156, 416 N. E. 2d 1064, 1067 (1979). However, peti-

tioner did not raise such claims in the first action, and is

therefore barred from raising them here:

The doctrine of res judicata . . . embraces the pol-

icy that a party must make good his cause of action

or establish his defenses “.. . by all the proper means

within his control, and if he fails in that respect,

purposely or negligently, he will not afterward be

permitted to deny the correctness of the determina-

tion, nor to relitigate the same matters between the

same parties.”

Johnson’s Island, supra, 69 Ohio St. 2d at 244; 431 N. E.

2d at 674, quoting Covington and Cincinnati Bridge Co. v.

Sargent, 27 Ohio St. 233 (1875) (first syllabus).

Petitioner attempts to avoid the bar of res judicata

by arguing that her constitutional claims are not based

on the same “cause of action” as the claims that were liti-

gated in the state-court action (Pet. Br. at 16). In addi-

tion to being incorrect simply as a matter of law (see pre-

ceding discussion), this argument is also unrealistic. Peti-

tioner was hired by the Warren City Board of Educa-

tion to fill the position of Elementary Education Super-

visor. The Board of Education subsequently determined

that this position was no longer necessary, and therefore

nonrenewed petitioner’s contract.* She decided to seek

judicial relief for this action of the Board, and did so by

filing an action in the Common Pleas Court of Trumbull

County, Ohio. In this proceeding, she could have chal-

lenged the Board’s action on any grounds she wished, in-

cluding the ground that the Board’s action in nonrenewing

her contract violated her constitutional rights. However,

*As noted in the yy of the Case, supra, this non-

renewal became necessary because petitioner's +- —y-

was not forthcomin Nina, os tho had been led to believe it

would be. When Board discovered that the resignation

would not be he pee | it was forced to act on petitioner's

contract at a special meeting, with which there were obviously

some procedural difficulties.

she elected to challenge the nonrenewal on state procedur-

a! grounds only, and on this challenge she prevailed. Ap-

parently unsated by this round of litigation, she now seeks

to enmesh these same defendants (and one United States

district court) in further litigation—not to vindicate rights

which the state court would not protect—but to vindicate

rights which the state court was never asked to protect.

In this connection, some comment must be made in

response to the argument of the amicus curiae American

Civil Liberties Union that petitioner is entitled to pro-

ceed here because her “analogous . . . tort claims” were

dismissed without prejudice in the state court (ACLU Br.

at 36). This argument is not only without merit; it is also

distracting and disingenuous. Under Rule 42(B) of the

Ohio Rules of Civil Procedure, an Ohio trial court is

granted the discretion to order a separate trial of any

claim or issue if the court, in its discretion, finds that

separate trials would be “in furtherance of convenience

[or] conducive to expedition and economy.”

In this case, the trial court exercised this discretionary

authority when it “reserved and continued” (J. A. at 39)

and later dismissed without prejudice (J. A. at 54) peti-

tioner’s “conspiracy” claim. This claim charged only

that the individual defendants “did by unlawful meetings

... conspire to deprive the plaintiff of her contract rights

with the Warren City School District.” (J. A. at 28) (em-

phasis added). Certainly, were it not for the statute of

limitations,* respondents would still be susceptible to suit

a oe yinvyf yy —G

unspecified torts, Rev § 2305.09. Her abandon-

ment of this claim is not in view of the fact that Ohio

in state court on this claim. However, it is clearly not with-

in the contemplation of Rule 42 (B) that in the separated

trial of a particular claim, the plaintiff is entitled to bring

in entirely new claims against the same defendant on the

theory that they are “analogous” to the separated claim.

Under the interpretation of the amicus, petitioner would

presumably be entitled to bring a second action under Title

VII or Title [IX for sex discrimination, or under the Age

Discrimination in Employment Act of 1967* or their Ohio

counterparts,** if she believed that these statutes applied

to her case. Thus, petitioner would be able in the second

action to avoid her own failure to “make good [her] cause

of action . . . by all the proper means within her control,”

Johnson’s Island, supra, 69 Ohio St. 2d at 244; 431 N. E.

2d at 674, simply by having an “analogous” claim dismissed

without prejudice. Respondents respectfully submit that

this result is neither equitable nor in keeping with the pol-

icy of Ohio law on claim preclusion as expressed in the

preceding argument, and should therefore be rejected by

this Court.

In light of the entire preceding discussion, it is ap-

parent that Ohio law, as this Court now finds it, would bar

petitioner’s second action against the same defendants

(Continued on next page)

with contract in the em r-employee context. See Fawcett

v. G. C. Murphy & Co., Ohio St. 2d 245, 248 N. E. 2d 291

rn Anderson v. Minter, 32 Ohio St. 2d 207, 291 N. E. 2d 457

asserting new claims under the federal constitution. There-

fore, since the full faith and credit statute (28 U.S.C.

§ 1738) requires that this Court give to petitioner’s first

judgment the same preclusive effect that it would have

under Ohio law, the decisions of the district court and the

Sixth Cireuit Court of Appeals according such preclusive

effect to such judgment were entirely correct, and should

be affirmed.

II. There is nothing in the legislative history or the

prior decisions of this Court which would sup-

port the view, advanced by petitioner, that tra-

ditional principles of issue preclusion apply in

§ 1983 actions, but traditional principles of claim

preclusion do not.

In their briefs to this Court, petitioner and the vari-

ous amici argue that although traditional principles of

issue preclusion (i. e., collateral estoppel) apply fully to

the litigants in Section 1983 actions, traditional principles

of claim preclusion (i. e., res judicata or estoppel by judg-

ment) should not apply. Because there is nothing in the

legislative history of Section 1983 or the pronouncements

of this Court to support such a “double standard” of pre-

clusion, respondents must urge the Court to reject these

arguments and affirm the decision of the Sixth Circuit

Court of Appeals.

The basic argument advanced on behalf of petitioner

is that because “Congress has never altered its intent to

make federal courts the primary protection of constitu-

tional rights,” it intended, through Section 1983, “to pro-

vide individuals in petitioner’s situation with the oppor-

tunity to utilize a federal forum for the protection of their

federally secured -onstitutional rights.” (Pet. Br. at 23,

25). Thus, petitioner takes the position that she should

be able to look to the federal courts for redress of her

federal claims, even though she failed to seek redress for

these claims in a prior state court action. This position

is, of course, contrary to traditional res judicata prin-

ciples:

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.

Allen v. McCurry, 449 U.S. 90, 94 (1980), citing Crom-

well v. County of Sac, 94 U.S. 351, 352 (1877). Admitting

this fact, the amicus American Civil Liberties Union asks

this Court to disregard traditional doctrines and to “fash-

ion a doctrine of qualified preclusion” which accords “full

collateral estoppel effect to facts and issues previously

decided . . ., but which does not preclude the assertion of

a federal constitutional claim in federal court merely be-

cause it might have been asserted in an earlier state pro-

ceeding.” (ACLU Br. at 41-42).

This argument in favor of a new preclusionary

“double standard” is unsupportable for a number of rea-

sons.

First, this Court has clearly and unequivocably stated

—twice within the last three years—that traditional con-

cepts of issue preclusion and claim preclusion apply in

Section 1983 actions. In Allen v. McCurry, 449 U.S. 90

(1980), this Court left no doubt as to the full applicability

of traditional res judicata principles in cases such as the

present one:

{I}m 1871 res judicata and collateral could

certainly have applied in federal suits state-

common law rules of preclusion or to repeal the ex-

press statutory requirements of the predecessor of 28

U.S.C. § 1738, .... Section 1983 creates a new fed-

eral cause of action. It says nothing about the pre-

clusive effect of state-court judgments.

Moreover, the legislative history of § 1983 does

not in any clear way suggest that Congress intended

to repeal or restrict the traditional doctrines of pre-

clusion... . [I]n the context of the legislative history

as a whole, this congressional concern lends only the

most equivocal support to any argument that, in cases

where the state courts have recognized the constitu-

tional claims asserted and provided fair procedures

for determining them, Congress intended to override

§ 1738 or the common-law rules of collateral estoppel

and res judicata. Since repeals by implication are dis-

favored, Radzanower v. Touche Ross & Co., 426 U.S.

148, 154, 92 S. Ct. 1989, 1993, 48 L. Ed. 2d 540, much

clearer support than this would be required to hold

that 4 1738 and the traditional rules of preclusion are

not applicable to 4 1983 suits.

449 U.S. at 97-99 (emphasis added) (footnotes omitted).

The above proposition was decisively reaffirmed by this

Court less than a year ago in Kremer v. Chemical Con-

struction Corporation, — U.S. —, 102 S. Ct. 1883 (1982).

In doing so, this Court added the following comments on

the importance of a uniform application of traditional

preclusion concepts in Section 1983 actions:

([T)he federal courts consistently have applied res

judicata and collateral estoppel to causes of action

and issue decided by state courts. Allen v. McCurry

449 U.S. 90, 96, 101 S.Ct. 411, 416, 66 L. Bd. 2d 308

(1980); Montana v. United States, 440 U.S. 147, 99

8. Ct. 970, 59 L. Ed. 2d 210 (1979) ; Angel v. Bulling-

ton, 330 U.S. 183, 67 8. Ct. 657, 92 L. Ed. 832 (1946).

Indeed, from Cromwell v. County of Sac, 94 U. 8. 351,

24 L. Ed. 195 (1877), to Federated Department Stores,

Ine. v. Moitie, 452 U. 8. 394, 101 8. Ct. 2424, 69 L. Ed.

2d 103 (1981), this Court has consistently emphasized

the importance of the related doctrines of res judicata

and collateral estoppel in fulfilling the purpose for

which civil courts had been established, the conclusive

resolution of disputes within their jurisdiction. Un-

der res judicata, a finai judgment on the merits of an

action precludes the parties or their privies from re-

litigating issues that were or could have been raised

in that action. Allen v. McCurry, 449 U.S., at 94, 101

S. Ct., at 414; Cromwell v. County of Sac, 94 U.S., at

352. Under collateral estoppel, once a court decides

an issue of fact or law necessary to its judgment, that

decision precludes relitigation of the same issue on

a different cause of action between the same parties.

Montana v. United States, 440 U.S. 147, 153, 99 S. Ct.

970, 973, 59 L. Ed. 2d 210. Parklane Hosiery v. Shore,

439 U.S. 322, 326 n. 5, 99 S. Ct. 645, 649 n. 5 (1979).

Thus, invocation of res judicata and collateral estop-

pel “relieve parties of the cost and vexation of multi-

ple lawsuits, conserve judicial resourzes, and, by pre-

venting inconsistent decisions, encourage reliance on

adjudication.” Allen v. McCurry, 449 U.S., at 94, 101

S.Ct., at 414. When a state court has adjudicated a

claim or issue, these doctrines also serve to “promote

the comity between state and federal courts that has

been recognized as a bulwark of the federal system.”

Id., at 96. 101 S. Ct., at 416.

— U.S. at-—- 102 8. Ct. at 1889-90 n.6 (emphasis added).

Respondents will not belabor these points further, which

have been so recently and convincingly made in Allen and

Kremer. It suffices to say here that, in view of above-

quoted passages from these decisions, no plausible argu-

ment can be made today that Congress, in enacting Sec-

tion 1983, expected the federal] courts to apply only the

collateral estoppel aspect of traditional res judicata doc-

trine and to ignore an equally important function of that

doctrine—namely, to preclude the further litigation of

claims which were, or could have been, raised in a previous

action between the parties.

Second, the position advocated by petitioner has been

soundly rejected by virtually all of the federal circuits

which have been faced with the question. These circuits

have held that claim preclusion concepts are fully appli-

cable in Section 1983 actions to bar federal claims which

could have been raised in an earlier state proceeding, but

were not. See Lovely v. Laliberte, 498 F.2d 1261 (lst

Cir. 1974), cert. denied 419 U.S. 1038 (1974); Southern

Jam, Inc. v. Robinson, 675 F.2d 94 (5th Cir. 1982); Cas-

torr v. Brundage, 674 F.2d 531 (6th Cir. 1982), cert. de-

nied, — U.S. —, 103 S. Ct. 240 (1982); Lee v. City of Pe-

oria, 685 F.2d 196 (7th Cir. 1982); Robbins v. District

Court, 592 F. 2d 1015 (8th Cir. 1979) ; Scoggins v. Schrunk,

522 F.2d 436 (9th Cir. 1975), cert. denied, 423 U.S. 1066

(1976); Spence v. Latting, 512 F.2d 93 (10th Cir. 1975),

cert. denied, 423 U.S. 896 (1975). Two circuits have adopt-

ed a contrary view. See Lombard v. Board of Educ., 502

F. 2d 631 (2d Cir. 1974), cert. denied, 420 U.S. 976 (1975) ;

New Jersey Educ. Assn. v. Burke, 579 F.2d 764 (3d Cir.

1978), cert. denied, 439 U.S. 894 (1978). However, it is

important to note that in the most recent of these cases

(Burke, supra), the Third Circuit allowed a second, fed-

eral-court action to proceed only in a situation “where a

federal suit is commenced before a final decision by the

state court... .” 579 F.2d at 774. Thus, it is not even

clear that the Third Circuit would allow a second action

in the present case, where no effort to invoke the jurisdic-

tion of the federal court was made until after the state

court proceedings had gone to judgment.

A third reason for rejecting petitioner’s proposed

“double standard” for preclusion is that it would violate

well-established principles of federal-state comity. As

noted by Professor Currie of the University of Chicago

in his excellent article, Res Judicata: The Neglected De-

fense, 45 U. Chi. L. Rev. 317, 338 n.153 (1978):

[T]o encourage state defendants to reserve fed-

eral issues for separate federal actions would offend

the policy of federalism underlying Younger v. Harris

[401 U.S. 37 (1971)}.

This policy of federalism is described by Professor Currie

in the following terms:

Younger reflects the policy that federal courts

should “not duly interfere with the legitimate activ-

ities of the States” and that the friction incident to

federal interference ought not to be tolerated so long

as state courts provide an adequate opportunity to

resolve federal claims. A litigant who has failed to

make full use of his state court opportunity has not

made a showing that the opportunity was inadequate.

45 U. Chi. L. Rev. at 320-21 (quoting Younger, supra, 401

U.S. at 44) (emphasis added). In a similar fashion, this

Court has also recognized the destructive effect on state-

federal relationships of allowing a separate “constitution-

al review” of matters already litigated in a state court.

In Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), this

Court refused to allow a state-court defendant to maintain

an injunction proceeding in federal court following a state-

court judgment against him, since to do so would cast “a

direct aspersion on the capabilities and good faith of [the]

state ... courts.” 420 U.S. at 709 (decided on abstention

grounds).

Fourth and finali; , etitioner has not presented any

convincing policy reasons why an exception to traditional

preclusion concepts—and to 28 U.S.C. 4 1738—is required

under the circumstances of this case. The essence of pe-

titioner’s argument here is that since she is asserting fed-

eral claims, she cannot be denied her day in a federal

court. (Br. Pet. at 23-26). This argument was categor-

ically rejected, however, in Allen v. McCurry, 449 U.S.

90 (1980):

The actual basis of the Court of Appeals’ holding

appears to be a generally framed principle that ev-

ery person asserting a federal right is entitled to one

unencumbered opportunity to litigate that right in a

federal district court, regardless of the legal posture

in which the federal claim arises. But the authority

for this principle is difficult to discern. It cannot lie

in the Constitution, which makes no such guarantee,

but leaves the scope of the jurisdiction of the federal

district courts to the wisdom of Congress. And no

such authority is to be found in § 1983 itself. For

reasons already discussed at length, nothing in the

language or legislative history of 41983 proves any

congressional intent to deny binding effect to a state

court judgment or decision when the state court, act-

ing within its proper jurisdiction, has given the par-

ties a full and fair opportunity to litigate federal

claims, and thereby has shown itself willing and able

to protect federal rights.

449 U.S. at 103-04 (footnotes omitted). Equally uncon-

vineing is petitioner’s claim that to preclude a second ac-

tion in federal court is to “make a federal forum unavail-

able to the petitioner.” (Br. Pet. at 25). Clearly, a federal

forum was available to the petitioner in this case, as she

herself concedes (see Br. Pet. at 25). Petitioner elected

a different forum, however, and cannot now be heard to

complain that the federal courthouse doors are closed to

her. In this respect, petitioner is like the appellant in

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

arguments were rejected by the Tenth Circuit with the

following comments:

Spence argues that the total effect of res judicata,

together with the Pullman abstention is to

rights. He says that he is barred from bringing his

federal and state claims in a federal forum by the

abstention doctrine and that, after final judgment in

state court, he is barred from the federal forum by

res judicata. It may be that if this suit had been

initially filed in the federal court, that court would, in

its wise discretion, have remitted Spence to the ap-

propriate administrative body for a post-termination

hearing. A full and fair hearing there might very

well have obviated or conditioned the adjudication

of the federal question. .. . We do not reach this

question, because Spence chose the state forum, which

as we have seen, has jurisdiction to redress all his

claims, federal and state. The federal court house

doors were initially open to him; but he deliberately

chose the state forum.

512 F.2d at 99 (emphasis added) (footnotes omitted).

Indeed, if there are any policy considerations which

are worthy of this Court’s attention in this case, they are

considerations which militate against the position advo-

cated by petitioner. In 1981 alone, over 30,000 civil rights

actions were filed in the federal district courts of the

United States. See Patsy v. Board of Regents, — U.S.

—, 102 S.Ct. 2557, 2577 (1982) (Powell, J., dissenting).

If petitioner’s view is adopted, the problems created by

this burgeoning Section 1983 caseload would only be ex-

acerbated. Every individual who believed that his con-

stitutional rights had been violated would be entitled to

a separate federal review of his claims, even though he

had previously engaged the same defendants in litigation

in a state court. Clearly, the creation of a right to such

a separate review, as a matter of federal law, will do

nothing to alleviate the overwhelming burdens which now

weigh on the federal courts, or to improve the quality of

justice which those courts are able to provide.

The position advocated by petitioner is also bad pol-

icy for a more fundamental reason—namely, that it con-

travenes the very important policies of finality, repose,

and fairness to defendants which have been embodied in

the doctrine of res judicata since the very origins of the

English common law. The doctrine is, like the doctrine of

stare decisis, a cornerstone of the Anglo-American juris-

prudential system. See Shoemaker v. City of Cincinnati,

68 Ohio St. 603, 612, 68 N. E. 1, 2 (1903). See also Jeter

v. Hewitt, 63 U.S. (22 How.) 352, 363-64 (1859). In the

case at bar, it is clear that this fundamental policy of the

law will be frustrated by the interpretation sought by

petitioner. Petitioner has had her day in court, and that

day should have resolved all questions between the parties

relating to the nonrenewal of petitioner’s employment con-

tract with the Warren City Schools. Any other conclu-

sion would impair the ability of our courts to perform the

very social function for which they were created—that is,

to resolve disputes. See Currie, supra, 45 U. Chi. L. Rev.

at 325.

In conclusion, it is important to recognize also that

the view of the petitioner on claim preclusion is bad pub-

lic policy because it encourages the state courts to abdi-

cate their responsibility to hear and determine questions

of federal constitutional law. Under the Supremacy

Clause (U. S. Const., art. VI, cl. 2), federal law is indeed

the “law of the land,” and the burden of applying and en-

forcing this law has always been recognized as an obliga-

tion of the state, as well as the federal, courts:

Upon the State courts, equally with the courts of

Oo ee Sa eee ae ae

protect every right granted or secured by the consti-

tution of the United States and the Jaws made in pur-

suance thereof, whenever those rights are involved in

any suit or proceeding before them... .

Robb v. Connolly, 111 U.S. 624, 637 (1884). This obliga-

tion of the state courts to shoulder part of the responsi-

bility for enforcing federal rights is not merely a func-

tion of the Supremacy Clause. It is also highly desirable

as a matter of sound judicial administration. The federal

courts, even in applying federal law, must often look to

the state courts to supply necessary interpretations of

state law. For example, in this very case, the federal

district court would be required to look to Ohio law to

determine whether petitioner had a “property interest”

in continued employment which was protected by the Due

Process Clause (Fed. Compl. at $24; J. A. at 9). See

Perry v. Sindermann, 408 U.S. 593 (1972). Thus, having

the state courts adjudicate a p'laintiff’s federal ciaims, as

well as his state claims, is often a more sensible and effi-

cient utilization of judicial resources than the separate

federal review envisioned by petitioner.

In light of the above, it is apparent that petitioner has

not advanced any legal or policy considerations which

would justify an exception to the full faith and credit

statute (28 U.S. C. § 1738) or the creation of a new “double

standard” of preclusion—that is, a standard which recog-

nizes collateral estoppel, but ignores the equally impor-

tant concept of claim preclusion. Respondents therefore

respectfully submit that the judgment entered by the trial

court herein was eminently sound and reasonable, was

wisely affirmed by the Sixth Cireuit, and should again be

affirmed here.

III. Petitioner’s claims for injury to her reputation

and resultant impairment of liberty interests are

barred by Ohio’s one-year statute of limitations

on defamation actions and actions for intentional

torts.

In this case, the district court granted summary judg-

ment against petitioner because, inter alia, her “liberty

interest” claims were barred by Ohio’s one-year statute of

limitations on defamation actions (Pet. Cert. at C 30-31).

Although petitioner’s “Questions Presented” do not ac-

tually present this issue for review, petitioner neverthe-

less argues this matter in the text of her brief (Pet. Br.

at 18-23). Therefore, respondents feel compelled to dem-

onstrate here the correctness of the trial court’s ruling on

this question.

One basis for petitioner’s federal action involves what

is in essence a common law tort claim for imposition of

a “stigma” upon petitioner “thereby depriving her of the

liberty interest in her reputation” and causing her to suf-

fer “mental distress, humiliation, embarrassment and

defamation of her character and reputation.” (Fed. Compl.

at 97 24, 25; J. A. at 9, 10). These claims are based on

certain alleged acts of respondents leading up to the vote

of the Board of Education to nonrenew petitioner’s con-

tract on April 24, 1979 (Fed. Compl. at 716; J. A. at 7).

Because these various claims are most closely analogous

to the common law claims of defamaiion and intentional

tort, they are barred by the one-year statute of limita-

tions applicable to such torts in Ohio, Revised Code Sec-

tion 2305.11.

It is now well-settled that because 42 U.S.C. § 1983

does not in itself contain a statute of limitations, a “fed-

eral district court must apply the statute of limitations

of the state where it sits which would be applicable in the

most closely anziogous state action to determine the time

within which the cause of action must be commenced.”

Mason v. Owen-Illinois, Inc., 517 F. 2d 520, 521 (6th Cir.

1975) ; accord, Kilgore v. City of Mansfield, 679 F. 2d 632

(6th Cir. 1982) (Ohio’s one-year statute of limitations ap-

plies in § 1983 action sounding in intentional tort). See

a'so Johnson v. Railway Express Agency, 421 U.S. 454

(1975) (applying state statute of limitations to a civil

rights action arising under the provisions of 42 U.S.C.

§ 1981).

The procedure for assessing the similarity of the vari-

ous state law torts to the federal claim presented requires

an analysis of three factors: “(1) the defendant’s con-

duct, (2) the plaintiff’s injury, and (3) the relief re-

quested.” Myers v. Pennypack Woods Home Ownership

Assn., 559 F. 2d 894, 901 (3rd Cir. 1977). Applying these

three factors to the present case, the petitioner has al-

leged (1) that the respondents’ conduct amounted to the

defaming of her name and reputation by maliciously

spreading untruths concerning her job performance as

an Elementary Supervisor, which (2) culminated in the

respondents’ vote of nonrenewal and “mental distress,

humiliation, embarrassment and defamation of character”

for which petitioner (3) seeks compensatory damages of

$250,000.00 and punitive damages of $250,000.00 against

respondents.

From this review of petitioner's claims, it is evident

that her aciion is most analogous to the interests protected |

by the tort of slander and libel which, under Ohio law, is

sub‘ect to a one-year statute of limitations. Section

2305.11 of the Ohio Revised Code reads in pertinent part

as follows:

An action for libel, slander, assault, battery, ma-

licious persecution, false imprisonment, or malprac-

tice, including an action for malpractice against a

physician, podiatrist, or a hospital, or upon a stat-

ute for a penalty or forfeiture, shall be brought with-

in one year after the cause thereof accrued... . (Em-

phasis added.)

This one-year statute of limitations on defamation ac-

tions bars the claims of petitioner described above. This

action was not filed until July 10, 1980. The alleged

defamatory acts of the respondents, however, took place

some time prior to April 24, 1979—the date upon which

petitioner’s limited contract was nonrenewed. Therefore,

petitioner has not alleged any defamatory actions of re-

spondent within the one-year period of limitation for ac-

tions of that type.

For purposes of the present case, it is important to

recognize that under Ohio law, a cause of action accrues

when the wrongful act complained of is committed, and

not when the date of damage is discovered or reasonably

should have been discovered. Wyler v. Tripi, 25 Ohio St.

2d 164, 267 N. E. 2d 419 (1971). In Pearl v. Koch, 5 Ohio

Dec. 5 (1894), the common pleas court held that the stat-

ute of limitations for libel or slander commences to run

from the time the alleged slanderous words were spoken,

and not from the time plaintiff had knowledge that they

were spoken. Thus, a slander and libel action would be

barred where the facts showed that the alleged defamation

took place in 1962 and the counterclaim asserting a cause

of action was filed in 1966, well beyond the one-year limi-

tations found in Section 2305.11. Starr v. Rupp, 421 F.

2d 999 (6th Cir. 1970).

It is also important to note here that under Ohio law,

an action which is in substance an action for libel or slan-

der is barred by the one-year statute of limitations irre-

spective of how the tort is characterized by the plaintiff.

A. L. Englander Motor Co. v. DeGaetano, 120 Ohio St.

443, 166 N. E. 372 (1929). Further, as here, a plaintiff’s

allegations of injury to reputation and embarrassment and

mental distress are within the scope of a tort action for

libel and slander. Kahn v. Cincinnati Times-Star, 10

Ohio Dee. 599 (1890), aff’d, 52 Ohio St. 662, 44 N. E. 1132

(1895).

The district court’s award of summary judgment to

respondents on petitioner’s defamation claims was correct

as a matter of both Ohio and federal law. The courts of

Ohio have assumed that when the General Assembly enacts

a statute of limitations, it is aware that the statute will

operate without reference to merit and will cut off all

claims after a certain time span. See Wyler v. Tripi,

supra. Therefore, where the plaintiff seeks to bring a

eause of action when the limitation period has expired,

the court must grant defendants’ motion for summary

judgment. Mills v. Whitehouse Trucking, 40 Ohio St. 2d

55, 320 N. E. 2d 668 (1974); Wentz v. Richardson, 165

Ohio St. 558, 138 N. E. 2d 675 (1956). See also Starr v.

Rupp, 421 F. 2d 999 (6th Cir. 1970). And, more specifi-

cally, where the claims in a civil rights action brought in

a federal court are construed to be for libel or slander,

the action is barred if filed after the one-year applicable

state statute of limitations. De Marrais v. Community

College of Allegheny County, 407 F. Supp. 79, 80 (W. D.

Penn. 1975) ; aff’d 571 F. 2d 571 (3rd Cir. 1978) ; MacMur-

ray v. Board of Trustees, 428 F. Supp. 1171, 1178 (M.D.

Pa. 1977).

For the above reasons, respondents urge this Court

to affirm the decisions of the trial court and the Sixth

Circuit holding that the “liberty interest” claims of peti-

tioner sounding in tort for defamation of character are

barred by the statute of limitations.

fy.

“

CONCLUSION

In light of the foregoing, it is clear that:

The full faith and credit statute (28 U.S.C. § 1738)

required the District Court for the Northern Dis-

trict of Ohio to bar petitioner’s action, since the

courts of Ohio would have barred the action as

arising out of the same transaction, occurrence,

or series of transactions and occurrences as her

first state-court action.

There is nothing in the legislative history or prior

decisions of this Court, or in any underlying pol-

icy considerations, which would support the view

that although issue preclusion principles apply

in Section 1983 actions, claim preclusion prin-

ciples do not.

Petitioner’s claims for injury to her reputation,

and the resultant impairment of her “liberty in-

terests,” are barred by Ohio’s one-year statute of

limitations on defamation actions and actions for

intentional torts.

Wherefore, respondents Warren City School District

Board of Education and individual respondents Catherine

O. Swan, Henry J. Angelo, Willard T. Rubin, Raymond

Tesner, Mary Milheim, and Barbara Miller urge this Court

to affirm the decisions of trial court and of the Court of

Appeals for the Sixth Circuit in each and every particular.

Respectfully submitted,

JaMes L. MESSENGER

Henverson, Covincton, 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

(Counsel of Record)

Nicno.ias A. Prrrner

Kimpaui H. Carey

Means, Bicnimer, BuRKHOLDER

& Baxer Co., L.P.A.

14th Floor

42 East Gay Street

Columbus, Ohio 43215

Telephone (614) 221-3135

Counsel for Individual Respondents

Swan, Angelo, Rubin, Tesner,

Milheim, and Miler

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.