# Opposition Brief — Miller v. Schoemehl > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0185%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1166 ## Text 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 TARAS CE PALE RIMMER EOD ssrccnecceccurcsncnssaproncesenssncesnse SEAT RMR Se MIE BENE CAGE. sccccnssnseccsssscesnsscvcsoncaice 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0185%3A2. Public record. Not legal advice.