Petition for Writ of Certiorari — Medvik v. City of University City

Q0. A99 { Foren |

ero} A we y © SEP 13 1993

NO. |

IN THE SUPREME COURT OF THE UNITED STATES §*k

October Term, 1993

STEPHEN MEDVIK,

Petitioner,

vs.

CITY OF UNIVERSITY CITY, MISSOURI

FRANK OLLENDORFF, CITY MANAGER

OF UNIVERSITY CITY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALAN G. KIMBRELL

1108 Olive Street

Suite 300

St. Louis, MO 63101

314/241-5282

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

In this 42 U.S.C. Section 1983 civil rights

action alleging that the state regulation under

which petitioner was fired was facially

unconstitutional, was the District Court

precluded, under the full faith and credit

requirements of 28 U.S.C. Section 1758, from

hearing petitioner’s claims on the merits by

reason of a state appellate decision, reviewing

his discharge, which upheld the constitutionality

of the regulation?

TABLE OF CONTENTS AND AUTHORITIES

OPINIONS BELOW . . . © «© «© © © © © © © © « « 3

GROUNDS FOR JURISDICTION . .... + + «© « -« 3

PROVISIONS INVOLVED ....+ + «© «© « «© « « 4

STATEMENT OF THE CASE ....- ++ + © « « « 7

REASONS WHY THE WRIT SHOULD ISSUE... . . 9

APPENDIX A ..-.+ + © «© © © © © «© © «© © © « i

APPENDIX B ..+-+«-+-c+-c+-+ 2 2e© © «© e e 8 i

APPENODIZ CC. + © e ss e ee se ewe we wo we ew i

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

Boutilier v. INS, 387 U.S. 118 (1967)

Broderick v. Oklahoma, 413 U.S. 601 (1973)

Connally v. General Constr. Co., 269 U.S. 385

(1926)

i ‘

Christi, 858 F.2d 973 (5th Cir. 1988)

Gooding v. Wilson, 405 U.S. 518 (1972)

, 829 F.2d 1056

(11th Cir. 1987)

Hiska v. City of Stevens Point, 823 F.2d 1168

(7th Cir. 1987) :

Vv , 3835 U.S. See

(1967)

, 780

F.2d 691 (7th Cir. 1986)

Medvik v. Ollendorff, 772 S.W.2d 696 (Mo. Ct.

App. 1989), cert. denied, 493 U.S. 1071 (1990)

, No. Y92-

3450EM, slip op. (8th Cir. June 15, 1988)

Mitchum v. Foster, 407 U.S. 225 (1972)

Monroe v. Pape, 365 U.S. 167 (1964)

R.A.V. v. City of St. Paul, 505 U.S. — _, 120 L.

Ed. 2d 305 (1992)

: , 487 U.S.

781 (1988)

Seaman v. City of Reno, 559 F. Supp. 683 (D. Nev.

1983)

Willhauck v. Halpin, 953 F.2d 689 (lst Cir. 1991)

Zinermon v. Burch, 494 U.S. 113 (1990)

U.S. CONST. amend. I

U.S. CONST. amend. V

U.S. CONST. amend. XIV, § 1

28 U.S.C. § 1738 (1988)

42 U.S.C. § 1983

Employees Handbook City of University City, Mo.,

Work Rules

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Eighth ‘rcuit is reported as

Medvick v. City of University City, No. 92-

3450EM, slip op. (8th Cir. June 15, 1988).

Plaintiff’s state petition for review of his

discharge is reported as Medvik v. Ollendorff,

772 S.W.2d 696 (Mo. Ct. App. 1989), cert. denied,

493 U.S. 1071 (1990).

GROUNDS FOR JURISDICTION

The United States Court of Appeals for the

Eighth Circuit entered judgment against

Petitioner on June 15, 1993. Jurisdiction of

this Court is invoked under 28 U.S.C. § 1254 EOP

PROVISIONS INVOLVED

Congress shall make no law respecting

an establishment of religion, or prohibiting

the free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble,

and to petition the Government for a redress

of grievances.

CONST. amend. I.

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any- person be

subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation.

CONST. amend. V.

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

28 U.

within its jurisdiction the equal protection

of the laws.

CONST. amend. XIV, § l.

The Acts of the legislature of any

State, Territory, -or Possession of the

United States, or copies thereof, shall be

authenticated by affixing the seal of such

State, Territory or Possession thereto.

The records and judicial proceedings of

any court of any such State, Territory or

Possession, or copies thereof, shall be

proved or admitted in other courts within

the United States and its Territories and

Possessions by the attestation of the clerk

and seal of the court annexed, if a seal

exists, together with a certificate of a

judge of the court that the said attestation

is in proper forn.

Such Acts, records and judicial

proceedings or copies thereof, so

authenticated, 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, Territory or

Possession from which they are taken.

S.C. § 1738 (1988).

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

5

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law, suit in equity, or other proper

proceeding for redress. For the purposes of

this section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of the

District of Columbia.

42 U.S.C. § 1983.

EMPLOYEES HANDBOOK City of University

City, Missouri .. . . WORK RULES . :

GROUP 1 . . . . Fourth Offense........

Discharge... . 20. An incident involving

an unwanted or imprudent statement or action

to a co-worker of a sexual, racial, ethnic

or religious nature.

Employees Handbook City of University City, Mo.,

Work Rule, Group 1, Paragraph 20.

STATEMENT OF THE CASE

Petitioner Stephen Medvik was fired from his

job as a mechanic for University City, Missouri,

for violating a work rule which prohibited: "An

incident involving an unwanted or imprudent

statement or action to a co-worker of a sexual,

racial, ethnic or religious nature." Petitioner

filed a Petition for Review in state court,

alleging that this state regulation was facially

unconstitutional under the First, Fifth, and

Fourteenth Amendments to the United States

Constitution. An intermediate state appellate

court found that the regulation was not facially

unconstitutional, and the state supreme court

denied a discretionary application for transfer.

Thereafter, petitioner filed a civil rights

action under 42 U.S.C. § 1983 in the United

States District Court for the Eastern District of

* Petitioner, in a conversation with his

supervisor, referred to an African-American co-

worker as a "nigger."

Missouri, reiterating the claims of facial

unconstitutionality which he had raised

unsuccessfully in state court. The district

court granted summary judgment on the grounds

that petitioner was precluded by the full faith

and credit provisions of 28 U.S.C. § 1738 (1988)

from litigating the facial constitutionality of

the state regulation in federal court once the

state court had upheld it. The United States

Court of Appeals for the Eighth Circuit affirmed.

In Allen v. McCurry, 449 U.S. 90 (1980), in

reviewing the applicability of the full faith and

credit provisions of 28 U.S.C. §1738 to civil

rights claims under 42 U.S.C. §1983, the majority

Stated: "In reviewing the legislative history of

Section 1983 in Monroe v. Pape, supra [365 U.S.

167 (1964)], the Court inferred that Congress had

intended a federal remedy in three circumstances:

bees ‘all

unconstitutional, where state procedural law was

inadequate to allow full litigation of a

constitutional claim, and where state procedural

law, though adequate in theory, was inadequate in

practice." JId., 449 U.S. at 100-101 (Emphasis

added.).

The dissenters’ departure from the majority

was specifically over the majority’s

interpretation of Monroe v. Pape’s recital of the

"‘three main aims’" of Section 1983. According

to the dissent, the majority viewed these "as a

delineation of when the [federal] remedy would be

available [in federal court]." The dissenters

thought that Monroe v. Pape’s "articulation of

these three purposes were intended only as

illustrative of why the 42d Congress chose to

establish a federal remedy in federal court."

Allen _v. McCurry, supra at 111 (Blackman, J.,

dissenting).

Plaintiff’s complaint clearly attacks

defendants’ Work Rule as "state substantive law"

which is "facially unconstitutional." Jt. App.

6-7. The doctrine of Monroe v. Pape, and the

interpretation thereof by the Allen v. McCurry

majority "as a delineation of when the remedy

would be available," is as valid today as ever.

"In Monroe, this Court . . . explained that

Section 1983 was intended .. . to ‘override’ .

- unconstitutional state laws, ..." Zinermon

10

ee

vy. Burch, 494 U.S. 113 (1990).

At least one district court has specifically

recognized that facial unconstitutionality is an

exception to the use of "(tjhe doctrine of

collateral estoppel" in "a civil rights case":

The bar may be raised when the later civil

action is a civil rights case.

Allen _v,

McCurry, 449 U.S. 90, 104, 191 S. Ct. 411,

420, 66 L.Ed.2d 308 (1980). Three

exceptions have been articulated: Where

unconstitutional, where state procedural law

was inadequate to allow full litigation of

a constitutional claim, and where state

procedural law, though adequate in theory,

was inadequate in practice. id. at 100-101,

101 S.Ct. at 418-419.

seaman v. City of Reno, 559 F. Supp. 683, 687 (D.

Nev. 1983) (Emphasis added. ).

The decision below is the first case ever to

hold that § 1738 full faith and credit allows a

state court decision that a state statute or

regulation is not facially unconstitutional to

tie a federal court’s hands when that issue

11

arises ina § 1983 case.” Neither the district

court opinion nor the court of appeals opinion

below even mentions Monroe v. Pape, supra, Seaman

v. City of Reno, supra, nor any of the language

from the majority and dissenting opinions in

Allen v. McCurry, supra, quoted above.

It is clear beyond peradventure that

"exceptions" two ("where state procedural law was

inadequate to allow full litigation of a

constitutional claim") and three ("where state

procedural law, though adequate in theory, was

inadequate in practice") in Allen v. McCurry are

7 In Hiska v. City of Stevens Point, 823

F.2d 1168 (7th Cir. 1987), Willhauck v. Halpin,

953 F.2d 689 (lst Cir. 1991), and Corpus Christi

Taxpayer’s Ass’n v. Corpus Christi, 858 F.2d 973

(5th Cir. 1988), the courts in fact applied §

1738 to bar constitutional challenges to state

statutes which had been upheld by their state

courts. The issue of whether "facial

unconstitutionality" is an exception to § 1738

full faith and credit requirements is not

discussed in any of these cases, nor is Monroe v.

Pape, supra, Seaman v. City of Reno, supra, nor

any of the language quoted above from the

majority and dissenting opinions in Allen vy.

McCurry, supra, even mentioned, much _ less

discussed.

12

considered in almost every federal case where the

bar of § 1738 is raised. See, €-G-, Gjelluim v.

City of Birmingham, 829 F.2d 1056 (lith Cir.

1987), and Lumen Constr... Inc. v. Brant Constr.

Co,, 780 F.2d 691 (7th Cir. 1986). This

reaffirms the Allen v. McCurry dissenters’ and

District Judge Reed’s understanding that the

Allen majority viewed the "’three main aims’" of

§1983, as discussed in Monroe v. Pape, "as @4

delineation of when the [federal] remedy would be

available [in federal court]." There is no

logical reason for recognizing the last two of

these "exceptions" while rejecting the first

("facial unconstitutionality").

Allowing state courts to be the final

arbiters as to whether their own laws violate the

federal constitution defeats the very purpose for

which §1983 was enacted: "(Tjhe [congressional ]

debates [on Section 1983] show that one strong

motive behind its enactment was grave

congressional concern that the state courts had

13

been deficient in protecting federal rights."

Allen _v. McCurry, supra at 98-99. "Congress

realized that in enacting Section 1983 it was

altering the balance of judicial power between

the state and federal courts." Jq,. at 99.

Congress deliberately opened the federal

courts to individual citizens in response to

the States’ failure to provide justice in

their own courts. . .., Congress

specifically made a determination that

federal oversight of constitutional

determinations through the federal courts

was necessary to ensure the effective

enforcement of constitutional rights. .. .

Congress consciously acted in the broadest

possible manner.

Allen v. McCurry, supra at 108-110 (Blackman, J.,

dissenting).

The very. purpose of Section 1983 was to

interpose the federal courts between the

States and the people, as guardians of the

14

————————————————————

people’s federal rights ---- to protect the

people from unconstitutional actions under

color of state law, "whether that action be

executive, legislative, or judicial."

Congress was concerned that state

instrumentalities could not protect those

rights; it realized that state officers

might, in fact, be antipathetic to the

vindication of those rights; and it believed

that these failures extended to the state

courts.

Mitchum v. Foster, 407 U.S. 225, 242 (1972).

With the deplorable congestion of federal

dockets, there is great pressure to eliminate

cases from those dockets wherever such action is

consistent with the Constitution of the United

States, congressional intent, and justice.

Whenever a state court has determined a factual

issue after a full and fair hearing, none of

these considerations require relitigation

thereof, even though such adjudications affect

15

the individual litigant’s constitutional rights.

On the other hand, where the state’s violation of

fundamental constitutional rights is plain for

all to see on the face of the state statute or

regulation, there is no concomitant justification

for forbidding federal courts the opportunity to

remedy an obvious wrong.

Any doubt as to the parochial misjudgment of

the intermediate state appellate panel was erased

by this Court in R.A.V. v. City of St. Paul, 505

U.S. — _, 120 L. EG. 2d 305 (1992). In that

case, Minnesota had attempted to criminalize the

placing "on public or private property" of "a

symbol, object, appellation, characterization or

graffiti, . . . which one knows or has reasonable

grounds to know arouses anger, alarm or

resentment in others on the basis of race, color,

creed, religion, or gender." JId., 505 U.S. at

___, 120 L. Ed. 2d at 315. This Court held that

this ordinance was facially unconstitutional

“because:

16

[Tjhe ordinance applies Only to "fighting

words that insult, or provoke violence, on

the basis of race, color, creed, religion or

gender." Displays containing abusive

invective, no matter how vicious or severe,

are permissible unless they are addressed to

one of the specific disfavored topics.

Those who wish to use "fighting words" in

connection with other ideas --- to express

hostility, for example, on the basis of

political affiliations, union membership, or

homosexuality --- are not covered. The

First Amendment does not permit St. Paul to

impose special prohibitions on those

speakers who express views on disfavored

subjects.

id., 505 U.S. at ___, 120 L. Ed. 2d at 323. In

the instant case, plaintiff was prohibited from

making “an unwanted or imprudent statement to a

co-worker of a sexual, racial, ethnic or

religious nature." Thus, plaintiff could have

17

made an "unwanted or imprudent statement to a co-

worker" concerning, for example, "political

affiliation" or "union membership" without fear

of discharge under the “work rule" in question.

In R.A.V., the regulation "proscribed fighting

words of whatever manner that communicate

messages of racial, gender, or _ religious

intolerance." JId., 505 U.S. at ___, 120 L. Ed.

2d at 324. Here, the regulation has proscribed

"unwanted or imprudent statements" which

"communicate messages" of "sexual, racial, ethnic

or religious" intolerance. "Selectivity of this

sort creates the possibility that the city is

seeking to handicap the expression of particular

ideas. That possibility would alone be enough to

render the ordinance presumptively invalid."

Id., 505 U.S. at 120 L. Ed. 2d at 324-25.

— ws

Nor should the regulation have withstood

First Amendment scrutiny prior to R,.A.V., e.g.,

Riley v. National Fed’n of the Blind, 487 U.S.

781 (1988); Gooding v. Wilson, 405 U.S. 518

18

(1972); Keyishian v. Board of Regents, 385 U.s.

589 (1967). It is also "void for vagueness."

Broderick v. Oklahoma, 413 U.S. 601 (1973);

Boutilier v. INS, 387 U.S. 118 (1967); Connally

v. General Constr, Co., 269 U.S. 385 (1926).

While it is reasonable to give preclusive

effect to state factual findings, according

finality to state court decisions preserving

their own laws against federal constitutional

attacks serves no legitimate public interest,

State or federal. The decision below effectively

removes § 1983 as a shield against regulations

banning "politically incorrect" speech, and

reduces it to a vehicle for the collection of

damages in those instances where there is no

State court decision upholding the challenged

law. This is not what Congress intended. The

Writ should be granted to determine whether

"facial unconstitutionality" is still an

"exception" to the full faith and credit

provisions of § 1723,

19

Respectfully submitted,

Alan G. Kimbrell MBE 1839

1108 Olive Street,

Suite 300

St. Louis, MO 63101

(314) 241-5282

Attorney for Petitioner

20

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT?

No. 92-3450EM

Stephen Medvick, *

*

Appellant, *

* Appeal from the United

Vv. * States District Court

* for the Eastern

City of University * District of Missouri.

City, Missouri; Frank *

Ollendorff, City * [PUBLISHED]

Manager of University *

City, *

e

Appellees. *

Submitted: April 12, 1993

Filed: June 15, 1993

Before FAGG, Circuit Judge, PECK,* Senior

Circuit Judge, and MAGILL, Circuit Judge.

*The HONORABLE JOHN W. PECK, Senior United

States Circuit .Judge for the Sixth Circuit,

sitting by designation.

PER CURIAM.

The City of University City (City)

discharged Stephen Medvick, a city mechanic, for

using abusive language in violation of a city

work rule. After unsuccessfully challenging the

constitutionality of the work rule in state

court, see Medvick v. Ollendorff, 772 S.W.2d 696

(Mo. Ct. App. 1989), cert. denied, 493 U.S. 1071

(1990), Medvick brought this 42 U.S.C. § 1983

action against the City and the City’s manager,

Frank Ollendorff, claiming the discharge violated

his due process and freedom of speech rights.

The district court granted the City and

Ollendorff summary judgment on the ground of res

judicata (claim preclusion) because Medvick

raised the identical constitutional claims

against the same parties and lost on the merits

in his state court action. See 28 U.S.C. § 1738

(1988). Medvick appeals and we affirn.

Under § 1738, a state court judgment is

entitled to the same full faith and credit in a

ii

Ena

federal court as the judgment is given by state

law. Allen v. McCurry, 449 U.S. 90, 96 (1980).

Because Missouri recognizes the doctrine of res

judicata, a federal court presented with a § 1983

action in Missouri must apply the doctrine to

give preclusive effect to a Missouri court

judgment. See Migra v. Warren City Sch. Dist.

Bd. of Educ., 465 U.S. 75, 80-85 (1984); Allen,

449 U.S. at 96-98. In this case, Medvick’s §

1983 complaint involves the same cause of action,

parties, and relief as his earlier state court

lawsuit. Thus, we agree with the district court

that Medvick’s § 1983 action is barred by res

judicata. See State ex rel. Tinnon v. Mueller,

846 S.W.2a 752, 758 (Mo. Ct. App. 1993) (listing

res judicata elements).

Medvick does not dispute that his federal

and state actions are identical, but contends an

intervening change in the law prevents the

application of res judicata to his § 1983 action.

We disagree. Although Missouri recognizes that

iii

an intervening change in the law may prevent the

application of collateral estoppel (issue

preclusion), Missouri Real Estate Comm’n v. Carr,

695 S.W.2d 169, 170 (Mo. Ct. App. 1985), no

Similar exception exists for the doctrine of res

judicata (claim preclusion), Snyder v. Snyder,

788 S.W.2d 339, 341-42 (Mo. Ct. App. 1990).

Here, because res judicata precludes Medvick’s §

1983 action, any intervening change in the law is

irrelevant. See Snyder, 788 S.W.2d at 342;

Estate of Egan v. Commissioner, 260 F.2d 779, 785

(8th Cir. 1958).

Medvick also contends the work rule he

violated is facially unconstitutional, and thus,

the full faith and credit requirements of § 1738

do not apply to his § 1983 action. According to

Medvick, § 1983 actions claiming daciai

unconstitutionality are an exception to the

application of § 1738 under Allen. The Supreme

Court, however, held just the opposite in Allen.

"(Njothing in the language of § 1983 remotely

iv

IEEE

expresses any congressional intent to contravene

the common-law rules of preclusion or to repeal

the express statutory requirements of the

predecessor of 28 U.S.C. § 1738. . . . Section

1983 creates a new federal cause of action. It

Says nothing about the preclusive effect of

State-court judgments." Allen, 449 U.S. at 97-

98; see also Migra, 465 U.S. at 80-85. Thus,

even if the work rule is facially

unconstitutional, § 1738 applies to Medvick’s §

1983 action.

Accordingly, we affirn.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

STEPHEN MEDVIK,

Plaintiff,

vs. No. 91-1462C(8)

CITY OF UNIVERSITY CITY,

et al.,

tl

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court on

defendants’ motion for summary judgment.

Plaintiff brings this suit pursuant to 42

U.S.C. § 1983 alleging that his due process

rights and his right to freedom of speech were

violated by defendants. Defendants assert that

the present action is barred by: (1) the

doctrine of res judicata; (2) the doctrine of

collateral estoppel; and (3) the statute of

limitations.

—_

FACTUAL BACKGROUND

Plaintiff was employed by defendant City

of University City ("University City") from

1978 to March 21, 1985 when he was fired.

Plaintiff was discharged for directing "abusive

language" to a coworker in violation a work

rule of University City. Plaintiff appealed

his discharge to the Civil Service Board of

University City ("the Board") which heard

evidence on the matter. The Board recommended

that plaintiff be given a two month suspension

rather than a discharge. Defendant Frank

Ollendorf, the City Manager of University City,

rejected the Board’s recommendation and upheld

the discharge. Plaintiff then filed a petition

for review in the Circuit Court of St. Louis

County. The Circuit Court sustained the

petition and ordered plaintiff reinstated. On

appeal the Missouri Court of Appeals remanded

the cause for further proceedings before

defendant Ollendorf. Defendant Ollendorf again

ii

sustained the discharge. Subsequently,

plaintiff filed an amended petition in the

Circuit Court of St. Louis County which was

denied. Plaintiff appealed to the Missouri

Court of Appeals which affirmed the circuit

court’s decision. Plaintiff then filed a

petition for writ of certiorari to the United

States Supreme Court. The Court denied

plaintiff’s petition. Plaintiff now brings the

same claims in this Court pursuant to 42 U.S.C.

§ 1983. Plaintiff alleges that the procedures

used by the Board denied his due process rights

and that his due process rights were violated

because the rule which he is accused of

violating is so vague and indefinite that it

gives no warning of what conduct is forbidden.

He also alleges that the rule violates his

right to freedom of speech.

ANALYSIS

Under 28 U.S.C. § 1738, the "[a]cts,

records and judicial proceedings" of a state

iii

court "shall have the same full faith and

credit in every court within the United States

--. aS they have by law or usage in the courts

of such State ... from which they are taken."

This section "specifically require[s] federal

courts to give preclusive effect to state court

judgments whenever the courts of the State from

which the judgments emerged would do so."

Allen v. McCurry, 449 U.S. 90, 96 (1980).

Missouri law recognizes two types of

preclusion. The doctrine of res judicata

precludes relitigation of claims ina

later lawsuit that were or could have been

litigated in a prior lawsuit between the

same parties. The doctrine of collateral

estoppel precludes relitigation of an

issue in a later lawsuit by the party

against whom the issue was decided in a

prior lawsuit.

Swapshire v. Baer, 865 F.2d 948, 950 (8th Cir.

1989) (citations omitted). Under Missouri law

a party will be collaterally estopped from

relitigating an issue decided in a prior suit

when (1) the issue decided was identical to the

issue now sought to be litigated, (2) the prior

iv

adjudication resulted in a judgment on the

merits, (3) the party against whom collateral

estoppel is asserted was a party to the prior

adjudication, and (4) that party had a full and

fair opportunity to litigate the issue in the

prior suit. Id. at 950-51; Baker v. McCoy,

739 F.2d 381, 384 (8th Cir. 1984). The United

States Supreme Court has specifically found

that the doctrines of res judicata and

collateral estoppel are applicable to suits

brought pursuant to 42 U.S.C. § 1983. Migra v.

Warren City School Dist, Bd. of Educ., 465 U.S.

75 (1983); Allen v. McCurry, 449 U.S. 90

(1980).

The claims brought by plaintiff and

decided in state court are exactly the same as

the claims he is presenting to this Court. In

fact, the complaints in both proceedings are

almost identical. The state court clearly

decided the issues against plaintiff on the

merits and plaintiff was a party to the prior

Vv

lawsuit. Plaintiff seems to argue that the

fourth condition was not fulfilled. However,

plaintiff does not state that he did not have a

full and fair opportunity to litigate his

claims in state court, instead he asserts that

the procedure whereby the body which holds

the hearing has no power to decide, and

the decision maker hears no evidence,

certainly calls into question whether he

was afforded "a ‘full and fair

opportunity’ to litigate" his firing ---

as does his complaint that "there was no

evidence, and no finding, that plaintiff’s

ability to perform his job was impaired,

or that the efficient operation of the

City’s government was interfered with, by

plaintiff’s statement to his co-worker."

Compl. 19-20.

(Plaintiff’s memorandum at 4-5). Thus,

plaintiff seems to argue that he did not get a

full and fair opportunity by the Board and

defendant Ollendorf to litigate his

termination. The state court addressed the

issue of the procedures used by defendants in

its decision to terminate plaintiff’s

employment and the Missouri Court of Appeals

specifically found that "Medvik was given the

vi

ae ‘

process required" in an administrative hearing.

Medvik v. Ollendorf, 772 S.W.2d 696, 700 (Mo.

App. 1989), cert. denied, 493 U.S. 1071 (1990).

Moreover, the "full and fair opportunity"

condition refers to the proceedings in state

court, not the administrative procedures, and

plaintiff has not asserted nor is there any

evidence that he was not given a full and fair

opportunity to litigate his claims in state

court. All four conditions for issue

preclusion are met in this case. Because the

claims plaintiff is presenting to this Court

were decided against plaintiff by the state

court they are given preclusive effect in this

federal lawsuit.’

Accordingly, for the foregoing reasons,

- IT IS HEREBY ORDERED that defendants’

motion for summary judgment is granted.

) * Because the Court finds that this action

is barred by res judicata and collateral estoppel

it need not address whether the statute of

limitations also bars this action.

vii

EE en

UNITED STATES DISTRICT JUDGE

Dated: 8/14/92

villi

APPENDIX C

Stephen MEDVIK, Plaintiff/Appellant,

Vv.

Frank OLLENDORFF,

Defendant /Respondent.

No. 54792.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 18, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 17, 1989.

Application to Transfer Denied

Aug. 1, 1989.

SATZ, Judge.

Medvik also contends his right to due

process was violated because the conduct

prohibited by Group I, Rule 20, one of the

grounds of his discharge, is too vaguely

defined and, therefore, does not pass

constitutional muster. We disagree.

[A] statute which either forbids or

requires [conduct] in terms so vague that

men of common intelligence must

necessarily guess at its meaning and

differ as to its application violates the

first essential of due process of law....

Ferguson, 670 S.W.2d 921, 927 (Mo. App. 1984).

This "void for vagueness doctrine" is

applicable to civil as well as criminal cases.

Id. The doctrine serves two purposes. It

ensures that the person of ordinary

intelligence is given a reasonable opportunity

to know what is prohibited, so that he may act

accordingly. It also protects against

arbitrary and discriminatory enforcement by

ensuring that laws provide explicit standards

for those who apply them. State ex rel. Cook

v. Saynes, 713 S.W.2d 258, 260 (Mo. banc 1986).

Rule 20 authorized sanctions against

Medvik for "an unwanted or imprudent statement

..-- to a co-worker of a sexual, racial, ethnic

or religious nature." Medvik contends these

ii

manasa aaa alanis,

words do not give him "reasonable opportunity

to know what is prohibited." For example, he

argues, one can imagine a joke or comment

touching on race or gender that would be

offensive to a sensitive hearer. Contrary to

the speakers expectations, he contends, such a

statement could be deemed "unwanted" or

"imprudent" and, thus, a Rule 20 violation.

Therefore, he concludes, the rule is "so vague

that its enforcement cannot help but result in

arbitrary and capricious restrictions upon

employees’ freedom of speech." We disagree.

Medvik’s argument is misdirected and

forced. We are not required to determine

whether the Rule could conceivably be enforced

in a discriminatory manner. It will pass

constitutional muster if it is susceptible to a

reasonable construction supporting its

constitutionality. Bel] _v. Board of Education

of City of St. Louis, 711 S.W.2d 950, 953 (Mo.

App. 1986).

iii

Admittedly, the vagueness doctrine amy

require greater precision in drafting

regulations affecting free speech than those

affecting other conduct. Ferguson Police,

supra at 927. A rule designed to prevent

inflammatory and disruptive statements,

however, necessarily involves some inherent

uncertainty. Other than a litany of selected

terms, an alternate definition that provides a

bright line between permissible and

impermissible speech in the work place is not

readily apparent. It is necessary that a

person subject to the rule be able to make some

judgment whether his statement is prohibited.

Ferguson Police, supra at 927. At this stage

of civilized history, persons of normal

intelligence are capable of determining whether

a racial remark is “unwanted” or “imprudent.”

We do not believe the guarantee of due process

requires the City to define these terms with

"mathematical precision." Saynes, Supra at

iv

261. Rule 20 is not void for vagueness.

Medvik makes a similar argument in

asserting Rule 20 is impermissibly overbroad.

Under the Rule, he contends, "a University City

employee may be fired for upholding Professor

Shockley’s views, in the presence of a black

co-worker, that whites have higher IQ’s, for

criticizing ‘women drivers’ to a female co-

worker, or for denying the divinity of Christ

in the hearing of a Christian co-worker."

Because Rule 20 prohibits constitutionally

protected speech, plaintiff contends, it is

facially invalid. Again, we disagree.

The overbreadth doctrine does not require

invalidation of the prohibition unless it is

"substantially overbroad" and not fairly

susceptible to a construction that would limit

its applicability to a constitutionally

permissible scope. Airport Commissioner v.

Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct.

2568, 2573, 96 L.Ed. 2d 500 (1987). We need

Vv

not and do not construe Rule 20 as broadly as

does Medvik. See Christian v. City of Kansas

City, 710 S.W.2d 11, 14 (Mo. App. 1986); State

v. Swoboda, 658 S.W.2d 24, 25 (Mo. banc 1983).

As an employer, the government has an interest

in maintaining an orderly work place, which may

include removal of disruptive employees who

tend to impair efficiency. See Connick v.

Myers, 461 U.S. 138, 150-51, 103 S.Ct. 1684,

1693, 75 L.Ed. 2a 708 (1983). To serve this

interest, Rule 20 prohibits statements "to a

co-worker" of a racial nature that are

"unwanted or imprudent." Sensibly read, this

language does not seek to deter harmless jokes

or statement on social or political issues;

rather, it is properly designed to prohibit

well known pejoratives unacceptable in the work

place.

Given this sensible construction, we

conclude, Rule 20 is not "substantially

overbroad." See Broadrick v. Oklahoma, 413

vi

U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d

830 (1973); Gooding v. Wilson, 405 U.S. 518,

523, 92 S.Ct. 1103, 1106-7, 31 L.Ed.2d 408

(1972). Conceivably, it may be susceptible to

an improper application. It is unnecessary,

however, to find it facially invalid because an

employee’s arguably protected speech may be

reached or chilled by the rule. Broadrick,

Supra 413 U.S. at 618, 93 S.Ct. at 2919. The

Rule was designed to deter the kind of

statements made by Medvik. This Court has

said:

Where there are a substantial number of

situations to which the statute or

regulation might validly apply, we will

not strike down the prowisions for

overbreadth. ... If the rights of

persons on the edge of the regulation’s

applicability will be infringed, it will

be for them to make the challenge in a

concrete dispute.

Ferguson Police, supra at 929.

Medvik cites State v. Swoboda, 658 S.W.2d

24 (Mo. banc 1983), which struck down a state

vii

peace disturbance statute as overbroad.

Swoboda is not controlling here.

Criminal statutes, as in Swoboda, must be

scrutinized for overbreadth with particular

care. E.g., City of Houston v. Hill, 482 U.S.

451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398

(1987). Rule 20, in issue here, is not a

criminal statute applied to a member of the

general public. It is an administrative

regulation applicable only to municipal

employees for comments made to co-workers in

the work place. Implicit in our prior

decisions is the unarticulated principle that,

as an employer, a government entity may

regulate speech among its employees under rules

that may be overbroad if applied to the public

in general. See, e.g., Fitzgerald v. Nations,

610 S.W.2d 48 (Mo. App. 1980), cert. denied,

452 U.S. 906, 101 S.Ct. 3032, 69 L.Ed.2d 407

(1981).

viil

ill

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

STEPHEN MEDVIK,

Petitioner,

vs.

CITY OF UNIVERSITY CITY, MISSOURI

FRANK OLLENDORFF, CITY MANAGER

OF UNIVERSITY CITY,

Respondents.

CERTIFICATE OF SERVICE

I hereby certify that three copies of the

Petition for Writ of Certiorari have been

served on defendants by mailing same, postage

prepaid, to Richard E. Greenberg, ROSENBLUM,

GOLDENHERSH, SILVERSTEIN & ZAFFT, P.C., 7733

Forsyth Boulevard, Fourth Floor, Clayton,

Missouri 63105 on this 13th day of September,

1993.

ALAN G. KIMBRELL

1108 Olive Street

Suite 300

St. Louis, MO 63101

314/241-5282

Attorney for Petitioner

ell