Opposition Brief — Miller v. Schoemehl

Supreme Court, U.S.

FILED

No. 96-1207 Gy

FFR_26 1997

In THE CLERK

Supreme Court of the United States

OcToBEeR TERM, 1996

STERLING S. MILLER; CLARENCE WoopruFF; PAULA J. CARTER:

WILLIAM L. Cray, Jr.; and KENNETH H. Jones,

Petitioners,

VS.

VINCENT C. SCHOEMEHL; THOMAS A. VILLA; BOARD OF ALDERMEN,

City oF St. Louis, Missouri; BoarD oF ELECTION COMMISSIONERS,

City oF St. Louis; and Crry or St. Louts,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI OF

RESPONDENTS SCHOEMEHL, VILLA,

. BOARD OF ELECTION COMMISSIONERS,

BOARD OF ALDERMEN AND

THE CITY OF ST. LOUIS

Tyrone A. TaBorn, City Counselor

Epwarp J. HAaNLon,

Deputy City Counselor

(Counsel of Record)

Patricia A. HAGEMAN

Assistant City Counselor

314 City Hall, 1200 Market Street

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Respondents

St. Louis Law Printing. Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

TABLE OF CONTENTS

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REASONS FOR DENYING THE PETITION .............

I.

Il.

Il.

The Petition Should Be Denied Because The Eighth

Circuit’s Application of the Doctrine of Res Judi-

cata Under the Factual Circumstances Of This Case

Neither Conflicts With Other Circuit Decisions Nor

Is It Inconsistent With Richards v. Jefferson County,

The Petition Should Be Denied Because Petition-

ers’ Allegation That They Were Denied Due Pro-

cess Does Not Justify A Grant of Certiorari Where

The Eighth Circuit Properly Applied the Doctrine

of Res Judicata To Bar Petitioners From Relitigating

Claims and Issues Identical to Those Decided In a

Prior Case Which IncludedMany of the Same Plain-

tiffs, the Same Counsel, and Other Plaintiffs With

II IUD sittin Ahictinsieicstncndiclesibesebltetdeninimobinns

The Petition Should Be Denied Because Petition-

ers’ Asserted “Questions Presented For Review”

Would Not Actually Be Presented To This Court In

That The Asserted Questions Are Premised On

Factual Scenarios Not Present In This Case..........

Cn a ARES: concnsenspicntetnincineiniannceesbiinatentanneenenesiinn

TABLE OF AUTHORITIES

Cases

Aerojet-General Corp. v. Askew, 511 F.2d 710(5th Cir.),

cert. denied, 423 U.S. 908 (1975) ...........ccccceeeeees

African American Voting Rights Legal Defense Fund,

Inc. v. Villa, 999 F.2d 1301 (8th Cir. 1993) (Table)

(per curiam), vacated and remanded sub. nom.,

Tyus v. Bosley, 114 S.Ct. 2776 (1994) oe

African American Voting Rights Legal Defense Fund

Inc. v. Villa, 54 F.3d 1345 (8th Cir. 1995), cert.

denied sub. nom., Tyus v. Bosley, 116 S. Ct. 913

| RAPPERS terete ner nha emo ek SOO ee

Johnson v. DeGrandy, 114 S.Ct. 2647 (1994) ..........2...

Meza v. General Battery Corp., 908 F.2d 1262, 1272 (Sth

Cat, TED ciisenciiinasceaneene eee

Richards v. Jefferson County, Ala.,_ _U.S.__, 116 S. Ct.

I CD ccuniniciiicnetipnitatanltinssaddiaenmeaeeemi mean

Tyus v. Schoemehl, 93 F.3d 449 (8th Cir. 1996) ...........

Statutes and Rules

a | CN ee MTS ers

Sb . + Re Eee

Federal Rule of Appellate Procedure 43(c)(1) ..............

Page(s)

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents' Schoemehl, Villa, Board of Election Commis-

sioners of the City of St. Louis, Board of Aldermen of the City

of St. Louis, and the City of St. Louis respectfully request that

this Court deny the petition for writ of certiorari seeking review

of the Eighth Circuit’s decision in this case. That decision is

reported at 93 F.3d 449.

STATEMENT OF THE CASE

Petitioners’ Statement of the Case and Questions Presented

contain mischaracterizations as well as assertions of fact that do

not appear in the record. Respondents in this opposition brief

refute those mischaracterizations and assertions where they are

of particular significance to this Court’s consideration of the

petition.

The plaintiffs in African American Voting Rights Legal De-

fense Fund, Inc. v. Villa (referred to as the AAVR case), No. 4:92

CV 0044 JCH (E.D. Mo. June 17, 1992) filed their lawsuit in

January 1992, alleging the City of St. Louis’ ward boundary lines

for selecting alderpersons and political party committee persons,

as re-drawn after the 1990 census, violated the First, Thirteenth,

Fourteenth, and Fifteenth Amendments of the United States

Constitution and section 2 of the Voting Rights Act, 42 U.S.C.

§ 1973. (App. 10-27.)? The named plaintiffs consisted of the

' For the sake of clarity and consistency, Respondents will refer to the style

of this petition in the same manner as Petitioners. Respondents note however,

that in the Eighth Circuit decision below the case is styled as Tyus v.

Schoemehl, and also that pursuant to Federal Rule of Appellate Procedure

43(c)(1) and Supreme Court Rule 35.3, successors to the named public offices

of Mayor and President of the Board of Aldermen should be automatically

substituted as parties herein.

? References to the appendix filed in the Eighth Circuit are denoted as

“App. ___.”, and references to the Petitioners’ appendix filed in this Court are

denoted as “A-__ and B-__.”.

sae aa

African-American Voting Rights Legal Defense Fund, Inc. (a

Missouri not-for-profit corporation) and various

African-American residents of the City of St. Louis, including

several elected alderpersons: Sharon Tyus, Freeman Bosley Sr.,

Bertha Mitchell, Claude Taylor, and Irving Clay, Jr. (App.

11-13.) The plaintiffs filed suit “on their own behalf and as a

class action... on behalf of all black voters residing in the various

wards of the City.” (App. 13.)

On or about April 24, 1992, with asummary judgment motion

pending against them, AA VR plaintiff-alderpersons Tyus, Bosley

Sr., Mitchell, Taylor and Clay obtained new counsel, Mr. Judson

Miner of the law firm of Davis, Miner, Barnhill & Galland.

(App. 63-64.) Represented by Mr. Miner, these same plaintiffs

— Tyus, Bosley Sr., Mitchell, Taylor and Clay — along with

three additional persons, Sterling Miller (Ms. Tyus’ spouse),

Clarence Woodruff, and Paula Carter (an elected state represen-

tative), filed this second lawsuit, asserting the same claims as in

AAVR. (App. 1-9; Eighth Circuit Rehearing Add. 1.) In this

second suit, plaintiffs described themselves as “alderpersons of

the City of St. Louis and/or are African American residents,

citizens, and registered voters of the City,” and they brought the

suit “on their own behalf and on behalf of all African-American

residents of St. Louis.” (App. at 2.) At this point Mr. Miner

served as counsel in both suits. (A-5.)

On May 5, 1992, Tyus, Bosley Sr., Mitchell, Taylor and Clay

moved to withdraw from AAVR so that they could pursue their

second lawsuit because of “certain disagreements regarding

basic strategies with counsel” in AAVR. (App. 28-30.) On that

same date, all plaintiffs in this second case filed a motion for

reassignment based on relatedness, seeking to have the second

suit reassigned to the district judge hearing AAVR, because the

issues in the two cases were “virtually identical,” the cases

involved “the same issues in fact and law,” and “the relief

granted in one case will necessarily govern and control the relief

oc

granted in the other.” (App. 34-35.) Both motions were filed by

counsel Mr. Miner.

In AAVR, the district court on June 17, 1992, granted summary

judgment in favor of defendants, and denied the

plaintiff-alderpersons’ motion to withdraw as moot. The Eighth

Circuit summarily affirmed, AAVR v. Villa, 999 F.2d 1301 (8th

Cir. 1993) (Table) (per curiam), and denied rehearing. Several

plaintiffs withdrew from AA VR at that point, but some appellants

remained and sought a writ of certiorari, including alderpersons

Tyus, Bosley Sr., Mitchell, Taylor and Clay, all represented by

Mr. Miner. On the same date that this Court issued its opinion

in Johnson v. DeGrandy, 114 S.Ct. 2647 (1994), this Court

granted the AAVR petitioners’ request for certiorari, vacated the

appellate court’s judgment, and remanded for further consider-

ation in light of DeGrandy. Tyus v. Bosley, 114 S.Ct. 2776

(1994). On reconsideration, the Eighth Circuit again affirmed,

and then this Court denied certiorari. AAVR v. Villa, 54 F.3d

1345 (8th Cir. 1995), cert. denied, 116 S. Ct. 913 (1996).

Meanwhile the district court in this second case had on March

3, 1993, granted summary judgment in favor of defendants

Schoemehl, Villa, the Board of Aldermen, and the City of St.

Louis on the ground of res judicata, and dismissed the claim

against the Board of Election Commissioners as an entity not

subject to suit.? (App. 112-20; B-1-8.) In its ruling, the district

court also denied as moot plaintiffs’ pending motion to file an

amended complaint adding two additional persons as plaintiffs--

William Clay, Jr. (a state senator), and Kenneth Jones (an

alderperson)-- and dropping as plaintiffs Tyus, Bosley Sr.,

Mitchell, Taylor, and Irving Clay. (App. 119; B-8.)* Plaintiffs

* The Board of Election Commissioners disputes that it is a proper party/

respondent in this action.

* Accordingly it is not clear that Petitioners William Clay, Jr. and Kenneth

Jones have standing to bring this petition or that they were proper parties

before the Eighth Circuit as they were never made parties below.

Miller, Woodruff, Carter, Jones, and William Clay appealed to

the Eighth Circuit, which affirmed and denied rehearing. Tyus

v. Schoemehl, 93 F.3d 449 (8th Cir. 1996).

Petitioners now request that this Court grant certiorari, argu-

ing that the Eighth Circuit misapplied the doctrine of res judicata

to bar them from relitigating issues identical to the ones decided

in AAVR.

ee pes

REASONS FOR DENYING THE PETITION

I. The Petition Should Be Denied Because The Eighth

Circuit’s Application of the Doctrine of Res Judicata

Under the Factual Circumstances Of This Case Neither

Conflicts With Other Circuit Decisions Nor Is It Incon-

sistent With Richards v. Jefferson County, Ala.

In atwenty-four page opinion, the Eighth Circuit carefully and

methodically applied the doctrine of res judicata to the unique

factual circumstances at hand. The court concluded that issue

preclusion prevented the plaintiffs from relitigating the issues

previously decided in AA VR in that the plaintiffs in this case were

“virtually” or “adequately” represented by the plaintiffs in

AAVR. Inso concluding, the Eighth Circuit noted that both suits

raised “identical claims,” that the issues raised in the second suit

were actually litigated and decided in AAVR, and that accord-

ingly the only question before it was whether the plaintiffs in the

second suit were in privity with or adequately represented by the

AAVR plaintiffs.* (A-1, 9-10.)

In undertaking an equitable and fact-intensive inquiry into

privity or adequate representation, the court, contrary to petition-

ers’ suggestion, did not enhance or create conflict with other

circuits. While acknowledging that some circuits in their privity

inquiries have applied the concept of virtual or adequate repre-

sentation more broadly than others, the Eighth Circuit correctly

noted that there can be no clear test in applying the concept due

to its factually intensive nature. (A-12.) Rather, the court stated,

it is wisest to apply the doctrine in light of the relevant factual

context, weighing carefully the concerns of due process and

judicial economy. (A-13.)

* While Petitioners draw a-distinction between privity and adequate

representation, the Eighth Circuit's opinion characterizes adequate represen-

tation as one category of privity. (A-11.) Regardless, it is clear that adequate

representation refers to an inquiry assessing the applicability of res judicata.

pee Bes

_

In its inquiry, the court followed “several guiding principles”

of res judicata accepted in other courts. (A-15.) Petitioners’

suggestion that the court should not have cited to Petit v. City of

Chicago, 766 F. Supp. 607 (N.D. Ill. 1991) is misplaced, as Petit

is quite analogous to the instant case, and there is no basis for

Petitioners’ assertion that Petit is anything less than valid law.

Similarly, Petitioners are-simply wrong when they suggest that

the Fifth Circuit has “abandoned” its reasoning from

Aerojet-General Corp. v. Askew, 511 F.2d 710 (Sth Cir.), cert.

denied, 423 U.S. 908 (1975). On the contrary, the Fifth Circuit

still recognizes the virtual representation principle, albeit more

limitedly than originally stated, and still cites Aerojet for the

applicable legal standard. See Meza v. General Battery Corp.,

908 F.2d 1262, 1272 (Sth Cir. 1990).

Further, in its opinion below, the Eighth Circuit was particu-

larly mindful of Richards v. Jefferson County Ala.,___ U.S. __,

1168S. Ct. 1761 (1996). The court expressly recognized the due

process concerns articulated in Richards, distinguished Richards

as a case in which the parties to the two lawsuits were “mere

‘strangers’ to one another,” and determined Richards to be

inapposite where there is the type of relationship between the

parties as found in this case. (A-13-14.) Indeed, Richards

recognizes that privity extends to describe various relationships

that would not have come within the traditional definition of the

term. 116 S.Ct at 1766. Moreover, Richards addressed a

situation where the second group of plaintiffs, whose interests

were not necessarily aligned with the first group of plaintiffs,

sought to litigate new and different federal claims that had not

been raised or litigated in the prior suit. /d. Finally, contrary to

petitioners’ assertion, this case would not present any question

left unanswered in Richards regarding the necessity of notice of

the prior litigation, as the court below concluded the plaintiffs in

this suit were on notice of the first suit; indeed certain of the

plaintiffs were parties to the first suit. (A-19, 24).

a.

II. The Petition Should Be Denied Because Petitioners’

Allegation That They Were Denied Due Process Does

Not Justify A Grant of Certiorari Where the Eighth

Circuit Properly Applied the Doctrine of Res Judicata

Under the Factual Circumstances of This Case To Bar

Petitioners From Relitigating Claims and Issues Identi-

cal to Those Decided In a Prior Case Which Included

Many of the Same Plaintiffs, the Same Counsel, and

Other Plaintiffs With Identical Interests.

Petitioners also contend that this Court should grant certiorari

because they were deprived of due process in that they and the

issues they raise deserve another day in court. This portion of the

Petition for Certiorari is essentially a rehash of Petitioners’

argument to the Eighth Circuit that they were not adequately

represented in the first suit.

As explained in Respondents’ statement of the case, as well as

in the Eighth Circuit opinion below, this is a case in which a

group of plaintiffs, with a summary judgment motion pending

against them in federal court, opted to file a second simultaneous

lawsuit in federal court raising identical claims and issues. Three.

additional plaintiffs, all situated similarly to plaintiffs in the first

suit, joined in the filing of the second suit. As the record below

evinces, and as the Eighth Circuit recognized in its decision, the

principal reason for filing the second lawsuit was as a “tactical

maneuver ™~“to evade judgment in the first suit.” (A-19, 24.) Five

of the plaintiffs in this second suit were AAVR plaintiffs who

deliberately maneuvered to avoid the first suit once it became

apparent that they might not prevail. Counsel from Spring of

1992 forward was the same in both suits. All plaintiffs in the

second suit sought to have their case reassigned to the district

judge presiding over AAVR because the issues were “identical”

and the outcome of one suit would “necessarily govern” the

outcome of the other. (App. 34-35.)

This scenario certainly involves a unique application of vir-

tual or adequate representation principles which is not likely to

recur, and this Court’s review of whether these Petitioners

deserve to maneuver another day in court would not serve any

need among the courts for guidance on res judicata doctrines.

III. The Petition Should Be Denied Because Petitioners’

Asserted ‘‘Questions Presented For Review’ Would

Not Actually Be Presented To This Court In That The

Asserted Questions Are Premised On Factual Scenarios

Not Present In This Case

Petitioners’ asserted Questions Presented would not be before

this Court as the Eighth Circuit did not apply res judicata against

a factual scenario like the one premised in Petitioners’ Ques-

tions. Petitioners attempt to mischaracterize the factual scenario

as one in which they had no relationship to the plaintiffs in the

prior AAVR litigation and had no notice of the AAVR suit.

(Petition for cert. ati.) These assertions are contrary to the lower

courts’ conclusions and are not supported by the record, as

explained in Respondents’ arguments above.

Similarly, Petitioners’ assertion that this case is one in which

the prior litigation was not prosecuted with “due diligence and

reasonable prudence” (petition for cert. at i), is unsupported in

the record and was not a conclusion reached by either of the

lower courts. (See B-5-6.) In fact, Petitioners’ counsel Mr.

Miner pursued the first suit through appeals which extended into

1996. This line of argument amounts to nothing more than yet

another rehash of Petitioners’ hindsight assessment of and dis-

Satisfaction with the ultimate outcome of AAVR.

For the foregoing reasons, the petition for a writ of certiorari

should be denied.

CONCLUSION

Respectfully submitted,

Tyrone A. Taborn,

City Counselor

Edward J. Hanlon,

Deputy City Counselor

Counsel of Record

Patricia A. Hageman,

Assistant City Counselor

314 City Hall

1200 Market Street

St. Louis, Missouri 63103

314-622-3361

Attorneys for Respondents