Opposition Brief — Pirela v. Village of North Aurora

eS ele ee |

FILS BD

rT ef Ie}

Sita aM be

ye

4 1 Grige GF TH CLERK |

No. 91-573 eiiiaineminetse ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

PABLO PIRELA,

Petitioner,

Vv.

VILLAGE OF NORTH AURORA,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

D. KENDALL GRIFFITH

Counsel of Record

PAUL L. PAWLOWSKI

RONALD L. KAMMER

GERALD HABERKORN

HINSHAW & CULBERTSON

222 North LaSalle Street

Suite 300

Chicago, Illinois 60601-1081

(312) 704-3000

Counsel for Respondent

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

TABLE OF CONTENTS

REASONS WHY THE PETITION

IE Ge SUIFEENED cco ccbntccvcesnvesees

SPE, Gu ddu sn icanseladsvecvevesances

APPENDICES

Illinois Revised Statutes, 1985, chapter 24, para-

Se SEE“ Necke erp rveceesedeeeneksee

ii

TABLE OF AUTHORITIES

Cases PAGE

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411

EE SUES A rds ov dbeweneaeeeruwehaneer ees 5

Bd. of Trustees v. Ill. Human Rights Com., 141

Ill.App.3d 447, 490 N.E.2d 232 (1986) ...... 6

Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205

CD aca nC na MveUR ERS eh e CRM OR RON ee Oceans 7

Kremer v. Chemical Construction Corp., 456 U.S.

GGl,, TOR BCH. TBS CGR) ccc vccccnicvecns 3, 5, 7

Lee v. City of Peoria, 685 F.2d 196 (7th Cir. 1982) .. 4, 5, 6

Mein v. Masonite, 109 Ill.2d 1, 485 N.E.2d 312

SE sob AUR s Se da Oe beled a o4k cece ae ees 6

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

SERGI aR eveepcn mires Ae Ree rect 7

Owens v. N.Y.C. Housing Authority, 934 F.2d 405

SE, EN vce wide ccewecetetieaenauks &

Other Authorities

gS rr err ore pre rer 3,4

Illinois Revised Statutes 1985, ch. 24, sec. 10-2.1-17 .. 6

Illinois Revised Statutes 1985, ch. 68, par. 8-111(c) .. 6

No. 91-573

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

PABLO PIRELA,

Petitioner,

Wa

VILLAGE OF NORTH AURORA,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

OPINION BELOW

The respondent, Village of North Aurora, respectfully

requests that this Court deny the petition for writ of cer-

tiorari, seeking review of the Seventh Circuit’s opinion

in this case. That opinion is reported at 935 F.2d 909

(1991).

JURISDICTION

The petitioner, Pablo Pirela, asserts that jurisdiction is

invoked under 28 U.S.C. § 1254(a). However, 28 U.S.C.

§ 1254(a) is non-existent. Petitioner apparently is relying

upon 28 U.S.C. § 1254(1).

alee

STATEMENT OF CASE

The Village of North Aurora adopts the statement of

case as appearing in the petition beginning at page 7. The

following additional facts are presented.

In April, 1986, Police Chief Edward Kelly brought a

complaint against Pablo Pirela, a police officer for the

Village of North Aurora (‘‘Village’’), and another police

officer, Stephen Adams.! The two were accused of six in-

fractions of the rules and regulations of the North Aurora

Police Department. (R. 12 at 29; Pet. App. 24) The Board

of Fire and Police Commissioners of the Village of North

Aurora (“‘Board’’) conducted a hearing on the charges on

April 24, 1986. (R. 12 at 29; Pet. App. 24) Throughout

the hearing, Pirela and Adams were present with legal

counsel of their own selection. All witnesses were sworn

in, testified under oath and were subject to cross-exami-

nation. (R. 12 at 30; Pet. App. 24)

At the conclusion of the hearings, the Board found that

the Village had met their burden of proof and that the

two were guilty of the misconduct as alleged in Counts

I, II, Il], IV and VI of the charges. The Board found

that the Village had not met their burden of proof and

that Pirela was not guilty of the alleged misconduct al-

leged in Count V of the charge. (R. 12 at 3; Pet. App. 24)

Count V alleged that Pirela struck an individual who

had earlier made a statement to the North Aurora Police

Department regarding a prior incident involving Pirela.

(R. 12 at 30; Pet. App. 25)

1 Police Officer Stephen Adams is not a party to these proceed-

ings.

=

Count I alleged that Pirela and Adams, on February

7, 1986, while under the influence of alcoholic beverages,

became involved in an altercation at a tavern, resulting

in the North Aurora Police being called to the scene. (R.

12 at 32-33; Pet. App. 26)

Count II alleged that Pirela and Adams were under the

influence of alcoholic beverages while on duty, during

which time Pirela had been seen three times driving a

police vehicle and weaving on the road. (R. 12 at 36-37;

Pet. App. 29)

Count III was directed solely against Officer Adams.

Count IV alleged that Pirela, while on duty, returned

car keys to an intoxicated individual who later drove

away. (R. 12 at 39; Pet. App. 31)

Count VI alleged that Pirela remained in a liquor es-

tablishment located in the Village of North Aurora beyond

the lawful closing time of that establishment and was seen

exiting the liquor establishment carrying a six-pack of

beer. (R. 12 at 39; Pet. App. 31)

Following the Board’s decision, Pirela filed a complaint

with the Sixteenth Judicial Circuit requesting judicial re-

view of the Board’s decision. The circuit court affirmed.

(R. 40 at 4)

REASONS WHY THE PETITION

SHOULD BE DENIED

1. Illinois law gives the prior state court judgment in

this case preclusive effect. As a result, 28 U.S.C. § 1738

requires the preclusion of petitioner’s Title VII claims.

Under Kremer v. Chemical Construction Corp., 456

U.S. 461, 480-482, 102 S.Ct. 1883 (1982), application of

%

=

§ 1738 is dependent first, on whether the state adminis-

trative and judicial review proceedings are sufficient to

be given preclusive effect in the state, and second, on

whether the party against whom preclusion is asserted

had a full and fair opportunity to litigate the claim. Pirela

argues that this test has not been met by asserting that

the Board is not authorized to resolve Title VII issues

and lacks pretrial discovery procedures to handle discrim-

ination claims. Neither assertion is supported by Illinois

law.

Pirela cites ch. 24, sec. 10-1-1 et seq., Ill.Rev.Stat. (1985)

entitled “Employers and Employment (Civil Service)’ to

support his claim that the Board can not hear discrim-

ination claims. Chapter 24 does not provide that the

board is unable to hear discrimination claims. Instead in

§ 10-2.1-17 specifically provides:

Except as hereinafter provided, no officer or

member of the fire or police department of any

municipality subject to this Division 2.1 shall be

removed or discharged except for cause, upon

written charges, and after an opportunity to be

heard in his own defense.

(Resp. App. 1, emphasis added) Thus, if Pirela believed

his discharge was discriminatory, he could raise that as

a defense.

Moreover, Pirela could have raised his discrimination

claim in the Illinois circuit court during his appeal from

the Board’s decision. Lee v. City of Peoria, 685 F.2d 196

(7th Cir. 1982). In Lee, a police officer was brought before

the Peoria Board of Fire and Police Commissioners (created

under the same provision of Chapter 24 as the Board in

this case) for allegedly giving false testimony before the

Peoria Board in a previous matter. Lee filed a complaint

for administrative review of the Peoria Board’s adverse

decision in the Circuit Court of Peoria County. In his com-

a

plaint, Lee claimed that his discharge was the result of

racial discrimination by the Board as well as the City and

that it was in violation of due process. The circuit court

found that ‘“‘the decision of the Department Board is sus-

tained by the greater weight of the evidence and is not

contrary to the manifest weight of the evidence.”

After the Board’s decision and before the circuit court’s

decision, Lee filed a charge of racial discrimination with

the EEOC against the City of Peoria and the Board pur-

suant to Title VII. Lee was issued his “Notice of Right-

to-Sue” under Title VII and filed his civil rights suit in

district court. The district court dismissed Lee’s claim on

grounds of res judicata and collateral estoppel.

The Seventh Circuit affirmed the dismissal relying, in

large part, on two Supreme Court cases, Allen v. McCurry,

449 U.S. 90, 101 S.Ct. 411 (1981) (not cited in the peti-

tion) and Kremer v. Chemical Construction Corp., 456

U.S. 461, 102 S.Ct. 1883 (1982). Applying the rationale

of both Allen and Kremer, the Seventh Circuit in Lee

found “no reason to distinguish civil rights actions brought

under Sections 1981, 1983 and 1985 from suits brought

under Title VII for purpuses of applying res judicata.”

685 F.2d at 200-201. Thus, Lee held that applying res

judicata in a civil rights action bars a suit even as to

issues which could have been, but were not, litigated in

a prior state proceeding. The court stated:

.. . the Board determined after a hearing that

Lee was guilty of the charges against him and

ordered dismissed. He could have raised the de-

fense of racial discrimination to the charges, but

did not do so. Lee petitioned for review to the

state circuit court, claiming also that the Board’s

dismissal of him was racially motivated and vio-

lated due process. It does appear to us that if

in fact he had been discharged solely because of

-

racial discrimination, he was not in fact or in law

discharged because of the false testimony. This

would have been a complete defense. Despite

Lee’s assertions to the contrary, the state cir-

cuit court had jurisdiction to review the allega-

tions . ‘

(emphasis added) 685 F.2d at 200-201.

Although Pirela cites the Illinois Human Rights Act

(Pet. 11-12), he identifies no provision granting exclusive

jurisdiction over such claims to agencies authorized by

that Act or precluding the Board from hearing discrimina-

tion claims. The Act, instead, provides:

(c) Limitation. Except as otherwise provided

by law, no court of this state shall have jurisdic-

tion over the subject of an alleged civil rights

violation other than as set forth in this Act.

Illinois Revised Statutes 1985, ch. 68, par. 8-111(c); Pet.

App. 41-62. This provides no limitation on the hearing of

civil rights claims by administrative agencies.

In Mein v. Masonite, 109 Ill.2d 1, 485 N.E.2d 312 (1985),

the court concluded par. 8-111(c) precludes bringing an orig-

inal action grounded on a violation of the Illinois Human

Rights Act in the circuit court. The Human Rights Act

therefore precludes direct access to the circuit courts for

redress of civil rights violations. See also, Bd. of Trustees

v. Ill. Human Rights Com., 141 Ill.App.3d 447, 490

N.E.2d 232 (1986). However, there is no support for the

statement that the Illinois Human Rights Commission

must hear civil rights claims to the exclusion of the Board.

Nor is Pirela correct in asserting that the Board had

no pretrial discovery procedures available. Chapter 24,

§ 10-2.1-17, Ill. Rev. Stat. (1985) provides for subpoena

power for the production of both witnesses and docu-

ments. (Resp. App. 1)

,

Thus, Pirela has not identified grounds to reverse the

Seventh Circuit’s holding that the Illinois res judicata doc-

trine would preclude this claim and that Pirela had a full

and fair opportunity to pursue his claim in the prior state

proceeding.

2. The Seventh Circuit has not misapplied Kremer by

holding that all issues are barred, even those not actual-

ly litigated in the prior proceeding.

Kremer barred an issue actually litigated because it ap-

plied the doctrine of collateral estoppel or issue preclusion.

A requirement of that doctrine is that only issues actual-

ly litigated in the prior action are precluded. Brown v.

Felsen, 442 U.S. 127, 138, n. 10, 99 S.Ct. 2205 (1979);

Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970

(1979).

However, res judicata or claim preclusion bars not only

those issues actually litigated, but those issues that could

have been litigated. Jd. Kremer indicates that res judicata is

applicable in Title VII cases. 456 U.S. at 481, n. 22. Sig-

nificantly, the cases cited by Pirela as in conflict with the

Seventh Circuit’s application of Kremer to an issue not

litigated in the prior proceeding (Pet. 13) all involve ap-

plications of issue preclusion.

3. The Illinois doctrine of res judicata would give the

Board’s decision preclusive effect.

Pirela’s contention to the contrary (Pet. 14-18) ignores

the Illinois law of res judicata as discussed in the Seventh

Circuit’s opinion. (Pet. App. 4-6) As already noted, Pirela’s

reliance on the Board lacking both the authority to hear

his discrimination claim and pretrial discovery procedures

is misplaced.

4. The Seventh Circuit’s decision has not created a di-

vision in the circuits regarding application of res judicata

to employment discrimination claims.

The cases cited by Pirela as creating a split in the cir-

cuits (Pet. 18-19) do not hold that res judicata does not

apply to employment discrimination claims. Rather they

hold that, on the facts presented, a requirement of the

particular state’s res judicata doctrine was not satisfied.

The cases then held that because the missing require-

ments would prevent the states from giving preclusive

effect to the states decisions, the federal courts were not

required to co so. Here on the facts presented, the Sev-

enth Circuit found that the requirements of the Illinois

res judicata doctrine were met. Thus, Illinois would give

preclusive effect to the Board’s decision. This does create

a conflict.

Pirela’s statement that Owens v. N.Y.C. Housing Au-

thority, 934 F.2d 405 (2nd Cir. 1991) found that Owens

did not have a full and fair opportunity to bring her dis-

crimination claim is erroneous. Instead, the court found

that the state court issue—misconduct—was resolved after

a full and fair opportunity to contest it, but that that was

not the issue defendant claimed was precluded. 934 F.2d

at 409. Thus, the decision was based on one of the require-

ments of issue preclusion not having been met, not on

the inapplicability of res judicata or collateral estoppel to

employment discrimination.

wiles

CONCLUSION

For these reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,

D. KENDALL GRIFFITH

Counsel of Record

PAUL L. PAWLOWSKI

RONALD L. KAMMER

GERALD HABERKORN

HINSHAW & CULBERTSON

222 North LaSalle Street

Suite 300

Chicago, Illinois 60601-1081

(312) 704-3000

Counsel for Respondent

App. 1

APPENDIX

10-2.1-17. Removal or discharge—Investigation of charges—

Retirement—Review under Administrative Review

Law

§ 10-2.1-17. Remova! or discharge—Investigation of

charges—Retirement. Except as hereinafter provided, no

officer or member of the fire or police department of any

municipality subject to this Division 2.1 shall be removed

or discharged except for cause, upon written charges, and

after an opportunity to be heard in his own defense. If

the chief of the fire department or the chief of the police

department or both of them are appointed in the man-

ner provided by ordinance, they may be removed or dis-

charged by the appointing authority. In such case the ap-

pointing authority shall file with the corporate authorities

the reasons for such removal or discharge, which removal

or discharge shall not become effective unless confirmed

by a majority vote of the corporate authorities. The board

of fire and police commissioners shall conduct a fair and

impartial hearing of the charges, to be commenced within

30 days of the filing thereof, which hearing may be con-

tinued from time to time. In case an officer or member

is found guilty, the board may discharge him, or may sus-

pend him not exceeding 30 days without pay. The board

may suspend any officer or member pending the hearing

with or without pay, but not to exceed 30 days. If the

Board of Fire and Police Commissioners determines that

the charges are not sustained, the officer or member shall

be reimbursed for all wages withheld, if any. In the con-

duct of this hearing, each member of the board shall have

power to secure by its subpoena both the attendance and

testimony of witnesses and the production of books and

papers relevant to the hearing. -

App. 2

The age for retirement of policemen or firemen in the

service of any municipality which adopts this Division 2.1

is 65 years, unless the Council or Board of Trustees shall

by ordinance provide for an earlier retirement age of not

less than 60 years.

The provisions of the Administrative Review Law, and

all amendments and modifications thereof,? and the rules

adopted pursuant thereto, shall apply to and govern all

proceedings for the judicial review of final administrative

decisions of the board of fire and police commissioners

hereunder. The term ‘administrative decision” is defined

as in Section 3-101 of the Code of Civil Procedure.*

Nothing in this Section shall be construed to prevent

the chief of the fire department or the chief of the police

department from suspending without pay a member of his

department for a period of not more than 5 calendar days,

but he shall notify the board in writing of such suspen-

sion. Any policeman or fireman so suspended may appeal

to the board of fire and police commissioners for a review

of the suspension within 5 calendar days after such sus-

pension, and upon such appeal, the board may sustain the

action of the chief of the department, may reverse it with

instructions that the man receive his pay for the period

involved, or may suspend the officer for an additional

period of not more than 30 days or discharge him, depend-

ing upon the facts presented.

Laws 1961, p. 576, § 10-2.1-17, added by Laws 1965, p.

2840, § 1, eff. Aug. 10, 1965. Amended by P.A. 76-1525,

2 Chapter 110, € 3-101 et seq.

3 Chapter 110, ¢ 3-101.

App. 3

§ 1, eff. Sept. 22, 1969; P.A. 80-819, § 1, eff. Oct. 1, 1977;

P.A. 82-783, Art. XI, § 54 eff. July 13, 1982; P.A. 85-915,

§ 1, eff. July 1, 1988.

Historical and Statutory Notes

P.A. 76-1525 authorized the Council or Board of Trus-

tees to provide by ordinance for an earlier retirement age

of not less than 60 years.

P.A. 80-819 inserted provisions governing removal or

discharge of chiefs of the fire or police departments ap-

pointed by ordinance.

The amendments by P.A. 82-783, Art. XI were neces-

sary to revise references to laws which were superseded

by the Code of Civil Procedure, see ch. 110, € 1-101 et seq.