Petition for Writ of Certiorari — Halbman v. St. Louis County

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(W #01023 ve 15

OFFICE OF THE CLER.

Supreme Court of the United States

RICH HALBMAN,

Petitioner,

Vv.

ST. LOuIs COUNTY, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID L. SHAPIRO KENNETH CHESEBRO*

1575 Massachusetts Avenue 1600 Massachusetts Avenue

No. 304 No. 801

Cambridge, MA 02138 Cambridge, MA 02138

(617) 495-4618 (617) 661-4423

JACK M. BEERMANN SEBASTIAN RUCCI

765 Commonwealth Avenue 3058 Chardonnay Lane

No. 970C Poland, OH 44514

Boston, MA 02215 (330) 707-1182

(617) 353-2577

Counsel for Petitioner

*Counsel of Record

December 18, 2000

BATEMAN & SLADE, INC.

QUESTION PRESENTED

Petitioner is a resident of a small Missouri city that was

disincorporated under Missouri law on the basis of a petition by

—a group of its citizens. Alleging that the disincorporation was

effected without notice to petitioner and other city residents,

petitioner filed this action in a federal district court under 42

U.S.C. § 1983, claiming violations of the federal Constitution.

The district court dismissed the action, and the Eighth Circuit

affirmed on the ground that the Rooker-Feldman doctrine

deprived the federal courts of jurisdiction. The doctrine was

invoked solely on the basis of an earlier state court action in

which petitioner was not a party. The decision below presents

the following question:

Did the court below err in extending the Rooker-

Feldman doctrine to bar this federal court action by a

nonparty to an earlier state court action?

i a a ey 5 it ki

PARTIES TO THE PROCEEDING

The petitioner in this case is Rich Halbman.

Donald Thoele.

The respondents, all of whom appeared as appellees in the

Eighth Circuit, are: St. Louis County, a county having a charter

form of government; the City of Peerless Park, a municipal

Park; and Donna Asberry, John Asberry, Lisa Chambers, Mary

Corbett, Kevin Grady, Elisabeth Kreminski, Frank Kreminski,

(ii)

TABLE OF CONTENTS

QUESTION PRESENTED .......cccccccccccccccccccccces i

PARTIES TO THE PROCEEDING ..........cceseceeeeeee ii

TABLE OF AUTHORITIES ........ccccccccccccscccccees iv

CPR II ccctcccccccscccndactensccecguanneds l

FUERISC TIN » sv cccescccdccccesbeccccostccccevesiees |

STATUTORY PROVISIONS INVOLVED ............+445. l

STATEMENT OF THE CASE ...........cccccccccccccces 2

REASONS FOR GRANTING THE WRIT .............5005: 8

I, CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT IN THE CIRCUITS

OVER WHETHER THE ROOKER-FELDMAN

DOCTRINE APPLIES TO A NONPARTY

TO AN EARLIER STATE COURT ACTION ............ .

per UUM URIN, 6... 5) fed chines ccscecetccnsce 10

SN SOAR Ee) oe Se rere aee 13

II. CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT IN THE CIRCUITS OVER

WHETHER THE ROOKER-FELDMAN DOCTRINE

APPLIES WHERE THE FEDERAL COURT

PLAINTIFF DOES NOT ALLEGE INJURY

CAUSED BY THE STATE COURT JUDGMENT ....... 16

A. The Narrow Construction of Rooker-Feldman ........ 17

B. The Broad Construction of Rooker-Feldman ......... 20

MPT. oc tceccdawsescctbescdccpeccccoccctcers 23

TABLE OF AUTHORITIES

CASES: PAGE:

Allen v. Allen, 48 F.3d 259 (7th Cir. 1995) ............. 14

Allstate Ins. Co. v. West Virginia State Bar,

2000 U.S. App. LEXIS 30143 (4th Cir. Nov. 30, 2000) 19

Baker v. General Motors Corp., 522 U.S. 222 (1998) ..... 10

Bates v. Jones, 131 F.3d 843 (9th Cir. 1997),

cert. denied, 523 U.S. 1021 (1998) ..............06. 15

Bechtold v. City of Rosemount, 104 F.3d 1062

GaGa, Saree. vin bevand cet deswtekeuwines covers 21

Bennett v. Yoshina, 140 F.3d 1218 (9th Cir. 1998),

cert. denied, 525 U.S. 1103 (1999)...... pant anes: Seen

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194

CORE: BONO 6 bcd Sedna eeekadees bt 19

Brown v. Sweeney, 2000 U.S. App. LEXIS 31325

Cm Co. Dae. Gee ina cnc dcdccaicss een is 15, 22

Carrington v. Rash, 380 U.S. 89 (1965) ............045. 6

Catz v. Chalker, 142 F.3d 279 (6th Cir. 1998) .......... 20

Centres, Inc. v. Town of Brookfield, 148 F.3d 699

(FURR. BO 5 bck ues teseivecce ewe eeeeiees 18

District of Colombia Court of Appeals v. Feldman,

GP Us SE CD 0 6 chan decides bbbwearehecs passim

E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997) .......... 1]

FOCUS v. Allegheny County Court of Common Pleas,

73 F360 G34 GOCE TOS iiss einai. 11

4901 Corporation v. Town of Cicero, 220 F.3d 522

(7 CR. BOONE 5 ci a a aS SEPEE PT Crier ee 18

Garry v. Geils, 82 F.3d 1362 (7th Cir. 1996) ........... 18

GASH Associates v. Village of Rosemont,

opm Be fi is & = eee 17, 18

Gottfried v. Medical Planning Services, Inc., 142 F.3d

326 (6th Cir.), cert. denied, 525 U.S. 1041 (1998) ..... 12

Gross v. Weingarten, 217 F.3d 208 (4th Cir. 2000) ...... 11

(iv)

CASEs: PAGE:

Hachamovitch v. DeBuono, 159 F.3d 687 (2d Cir. 1998) .. 19

Harpin v. Oakley Custom Homes, 2000 U.S. App.

LEXIS 25936 (10th Cir. Oct. 17,2000) ............. 20

Hill v. Town of Conway, 193 F.3d 33 (1st Cir. 1999) ..... 20

Homola v. McNamara, 59 F.3d 647 (7th Cir. 1995) ...... 18

Hoover v. Wagner, 47 F.3d 845 (7th Cir. 1995) ......... 14

Hussey v. City of Portland, 64 F.3d 1260 (9th Cir. 1995),

cert. denied, 516 U.S. 1112 (1996). ........ cece eee 6

In re Goetzman, 91 F.3d 1173 (8th Cir.),

cert. denied, 519 U.S. 1042 (1996)... .... cee eee ee 21

Johnson v. De Grandy, 512 U.S. 997 (1994) ......... 11-15

Johnson v. Rodrigues, 226 F.3d 1103 (10th Cir. 2000) .... 13

Kamilewicz v. Bank of Boston Corp., 92 F.3d 506

(7th Cir. 1996), rehearing en banc denied, 100 F.3d

1348, cert. denied, 520 U.S. 1204 (1997) ............ 18

Kramer v. Union Free School Dist., 395 U.S. 621 (1969) . 6

Leaf v. Supreme Court of Wisconsin, 979 F.2d 589

(7th Cir. 1992), cert. denied, 508 U.S. 941 (1993) ... 14

Long v. Shorebank Dev. Corp., 182 F.3d 548

(FRG Is 685 rab ke CERIEER CS 8,18

Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994) ........... 11

Martin v. Wilks, 490 U.S. 755 (1989) .........cceeeeee 10

Meyer v. California Dep't of Rehabilitation,

1999 U.S. App. LEXIS 7278 (9th Cir. Apr. 12, 1999)... 20

Moccio v. New York State Office of Court Admin.,

Po FSG Pe Ce TOF i ic Fees Oho oe h 58* 20

Narey v. Dean, 32 F.3d 1521 (11th Cir. 1994) .......... 19

Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995) ........ 17

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ......... 10

Parkview Associates Partnership v. City of Lebanon,

225 F.3d 321 (3d Cir. 2000) ............048. 18, 20, 21

(v)

CASES: PAGE:

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) .... 7, 20,21

Remer v. Burlington Area Sch. Dist.,

205 F.3d 990 (7th Cir. 2000) ....... cece ceeeeeees 18

Republic of Paraguay v. Allen, 949 F. Supp. 1269

(E. D. Va. 1996), aff'd on other grounds,

134 F.36 G58 COR Coe, BOSD hb cde dectascsccccacus 16

Reynolds v. Sims, 377 U.S. 533 (1964) .......0cccceeees 6

Richards v. Jefferson County, 517 U.S. 793 (1996) ...... 10

Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995) .... 13, 15, 16

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ... passim

Sheehan v. Marr, 207 F.3d 35 (1st Cir. 2000) ........... 20

Snider v. City of Excelsior Springs, 154 F.3d 809

(Gtr Cle, 15GGD cccnccsescdvesdcemunnecss 14-15, 21

South Central Bell Telephone Co. v. Alabama,

S26 US. 16D CGE o.oo ckkas cdsintuwdncdesdtedase 10

Stanton v. District of Columbia Court of Appeals,

~ 327 F.38 72 QS. Gis, 1967) ic neces ccdtvancendse 19

T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997) ..... 14

United States v. Owens, 54 F.3d 271 (6th Cir.),

cert. dismissed, 516 U.S. 983 (1995) .........00000: 12

Valenti v. Mitchell, 962 F.2d 288 (3d Cir. 1992) ...... 10, 11

Van Harken v. City of Chicago, 103 F.3d 1346

(7th Cir.), cert. denied, 520 U.S. 1241 (1997) ........ 18

Williams v. Adkinson, 792 F. Supp. 755 (M. D. Ala. 1992),

aff'd without op., 987 F.2d 774 (11th Cir. 1993) ...... 16

Young v. Murphy, 90 F.3d 1225 (7th Cir. 1996) ......... 18

(vi)

28 U.S.C. § 1257

28 U.S.C. § 1331

28 U.S.C. § 1738

42 U.S.C. § 1983

R.S. Mo. § 79.490

R.S. Mo. § 79.495

Susan Bandes, The Rooker-Feldman Doctrine:

Evaluating Its Jurisdictional Status,

74 Notre Dame L. Rev. 1175 (1999) 9, 15, 20, 21

Jack M. Beermann, Comments on Rooker-Feldman

or Let State Law Be Our Guide,

74 Notre Dame L. Rev. 1209 (1999) 9, 10, 20, 21

Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro,

Hart & Wechsler’s The Federal Courts and the

Federal System (4th ed. 2000 Supp.) ................ 9

Barry Friedman and James E. Gaylord,

Rooker-Feldman, From the Ground Up,

74 Notre Dame L. Rev. 1129 (1999)

D. Rowe, Jr., Rooker-Feldman: Worth Only the Powder

to Blow It Up?, 74 Notre Dame L. Rev. 1081 (1999) ... 9

Suzanna Sherry, Judicial Federalism in the Trenches:

The Rooker-Feldman Doctrine in Action,

74 Notre Dame L. Rev. 1985 (1999) 8-9, 12-16, 20

Symposium: The Rooker-Feldman Doctrine,

74 Notre Dame L. Rev. 1081 (1999)

18 Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper, Federal Practice and

Procedure (2000 Supp.) ...........+.45- 10, 17, 20, 21

(vii)

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PETITION FOR A WRIT OF CERTIORARI

Rich Halbman respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of

Appeal for the Eighth Circuit in this case.

OPINIONS BELOW

The Court of Appeals’ decision denying rehearing (App.

36a) is unreported. Its decision on the merits (App. 1a-13a) is

reported at 222 F.3d 488. The decision of the district court (App.

14a-23a) is unreported.

JURISDICTION —

The petition for rehearing and suggestion for rehearing en

banc was denied on September 18, 2000. App. 36a. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions pertaining to the Rooker-Feldman

doctrine are as follows. 28 U.S.C. § 1257 states in relevant part:

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court by writ of

certiorari where . . . the validity of a statute of any State

is drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of the

United States... .

28 U.S.C. § 1331 provides:

§ 1331. Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

The Full Faith and Credit Act, 28 U.S.C. § 1738, provides

in relevant part:

§ 1738. State and Territorial statutes and

judicial proceedings; full faith and credit

***

The records and judicial proceedings of any court of

any .. . State, Territory or Possession . . . 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.

STATEMENT OF THE CASE

This case began when a group of residents of a small

Missouri city filed a petition with the county council to

disincorporate the city. The county council granted the petition.

A state court action was then filed in which the disincorporation

was challenged on state law and federal due process grounds.

That action resulted in a judgment for the defendants. Petitioner

Halbman brought a federal court suit under 42 U.S.C. § 1983,

challenging the disincorporation solely on federal grounds. The

U.S. Court of Appeals for the Eighth Circuit, affirming the

dismissal of the action by the district court, held that the Rooker-

Feldman doctrine’ barred the exercise of federal jurisdiction over

Halbman’s claims even though Halbman had not been a party in

the state court and alleged no harm flowing from its judgment.

" See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923) (holding

that federal district court lacked jurisdiction to entertain a lawsuit that was

brought by the loser of a state court action and that was “merely an attempt to

get rid of the [state court] judgment for alleged errors of law committed in the

exercise of that jurisdiction”); District of Colombia Court of Appeals v.

Feldman, 460 U.S. 462, 476, 482 (1983) (reaffirming that “a United States

District Court has no authority to review final judgments of a state court in

judicial proceedings”) (citing Rooker, 263 U.S. at 415-16).

As the Eighth Circuit noted, its broad construction of the

Rooker-Feldman doctrine to bind a nonparty to an earlier state

court litigation conflicts with the law of other circuits that

interpret the doctrine much more narrowly. Moreover, by

applying the doctrine broadly to a case in which a federal

plaintiff did not allege injury-caused by the state court judgment

itself, but rather by the underlying conduct of defendants that had

been unsuccessfully challenged in the state court by others, the

decision below embraced one side of an additional conflict

between the circuits.

The Rooker-Feldman doctrine has been relied on by the

lower federal courts with increasing frequency in recent years,

with little guidance from this Court. This case presents an

excellent vehicle for this Court:to bring consistency and

coherence to the Rooker-Feldman doctrine, an increasingly

important aspect of federal law. . :

1. The Petition for “midaianparititin Without Election.”

In 1997, the City of Peerless Park, Missouri (located within St.

Louis County, a few miles west of the City of St. Louis) was

sized “fourth class” because it had fewer than 100 residents.

App. 3a. Missouri law afforded the citizens of a fourth-class city

two different ways to disincorporate their city. First, under R.S.

Mo. § 79.490, a majority of the city’s voters could ask the county

to hold an election on the issue. Under this option, the citizens

of the city would be given at least four weeks’ notice of the

election, and the affirmative vote of at least 60% of those voting

would be required to trigger disincorporation.

Alternatively, R.S. Mo. § 79.495 permitted “disincorporation

without election.” It authorized a county to disincorporate a

fourth-class city “upon petition of two-thirds of the voters of

such city, without an election in such city, provided that the

petition requests disincorporation without an election ... .”

Under Section 79.495, a properly executed petition would not

merely put disincorporation on the agenda of the county

government. Instead, the county government would be required

to disincorporate the city without an inquiry into the merits of the

issue, without notice to other residents of the city, and without

holding an election. App. 30a-3 la.

On December 11, 1997, eighteen registered voters of

Peerless Park filed a petition with the St. Louis County Council

invoking the “disincorporation without election” process set out

in Section 79.495, App. 3a, 15a. On January 22, 1998, the

Council delegated the matter to a hearing officer. App. 16a. At

the request of counsel for the petition signers, the hearing was

focused on “a sterile mathematical calculation” of whether the

petition was signed by two-thirds of the city residents who were

registered to vote on the date the petition was filed. Tr. of Jan.

29, 1998, at 57; see also id. at 321-25. The hearing officer

declined to consider any constitutional arguments on the basis

that he lacked jurisdiction over such issues. Report of Hearing

Officer dated March 3, 1998, at 7,

The hearing officer concluded that on the date the petition

was filed, Peerless Park had 27 registered voters, and that all

eighteen people who signed the petition were registered — so

that the two-thirds threshold of Section 79.495 had been met, and

therefore “the [County] Council must order Peerless Park to be

disincorporated.” Id. at 24-25. On March 19, 1998, the St. Louis

County Council adopted the hearing officer’s report in full and

ordered the disincorporation of Peerless Park effective on May

1, 1998. App. 16a.

2. The City’s State Court Action. The City of Peerless

Park and two of its officials then filed a State-court action against

the county and several county council members. App. 4a, 16a.

Its principal claim was that under Missouri law “the disi

ration was a ‘boundary change,’ reviewable by the Boundary

Commission, which would allow for an open public election.”

App. 16a; see also App. 4a, 34a-35a. “The complaint further

alleged that the council’s order was ‘voidable’ because [S]ection

79.495 violated the federal Due Process Clause by failing to

provide for notice of an impending petition drive.” App. 4a.

The eighteen Peerless Park residents who had signed the

petition intervened in the state court action to defend the order of

disincorporation.— App. 16a. Neither these residents nor the

defendants in the state court action sought to join Halbman or

any of the other residents of Peerless Park in an effort to make

the result of the state court action binding on all those who might

be affected by disincorporation. The state trial court issued an

order that was affirmed by the state appellate court. App. 4a,

16a, 24a-35a.

3. Halbman’s Federal Court Action. Shortly before the

State appellate court’s affirmance in the state court action brought

by the City of Peerless Park and its officials, a federal action was

filed under 42 U.S.C. § 1983 in which petitioner Halbman joined

as a plaintiff, alleging violations of the federal Constitution.

App. 4a.? Halbman was not only a resident of Peerless Park but

its Building Commissioner, a position that he would lose as a

result of disincorporation. App. 12a. As defendants, Halbman

named St. Louis County and the trustee for the City of Peerless

Park. Halbman contended that R.S. Mo. § 79.495’s provision for

“disincorporation without election,” as applied by the county to

the Peerless Park petition filed by eighteen residents on

December 11, 1997, violated his voting rights protected under

the First Amendment and the Equal Protection Clause of the

Fourteenth Amendment. App. 4a.

* The federal court action in which Halbman joined was initially filed

on April 30, 1999, by Rich Lemonds, another resident of Peerless Park who

was not registered to vote on the date the petition was filed, but who registered

the next day. App. 4a. Two weeks later, on May 13, 1999, the first amended

complaint was filed listing Halbman as a plaintiff. Several months later, on

August 24, 1999, the district court denied an effort by four other residents of

Peerless Park to join the lawsuit as plaintiffs.

Halbman’s claim was founded largely on two facts: (1) that

on the day after the disincorporation petition was filed (as soon

as he learned of it), he had registered to vote; and (2) that if his

vote had been counted in the calculus, “the number of signatures

on the petition would have been insufficient to effectuate

disincorporation.” App. 4a; see also Tr. of Jan. 29, 1998, at 222-

23. On this basis, Halbman maintained that principles of federal

law invalidate any refusal to count his vote, because his fellow

residents are not permitted to use Section 79.495 to “vote”

without prior notice on a matter that would otherwise require an

election. To permit such use, he contended, would circumvent

his right to register for and vote in an election, denying him the

right to participate in the voting process on an equal basis with

other citizens in the jurisdiction. See, e.g., Reynolds v. Sims, 377

U.S. 533, 561-62, 565 (1964) (protecting “full and effective

participation in the political processes”); Kramer v. Union Free

School Dist., 395 U.S. 621, 626-29 (1969) (equal protection is

denied if “some resident citizens are permitted to participate and

some are not”); Hussey v. City of Portland, 64 F.3d 1260, 1263-

65 (9th Cir. 1995), cert. denied, 516 U.S. 1112 ( 1996) (holding

that the use of a petition process as an alternative to an election

constitutes “voting” that is governed by the same standards

applicable to elections generally).

4. The Rulings of the District Court and Eighth Circuit.

The eighteen signers of the petition intervened in Halbman’s

federal court action to defend the disincorporation, just as they

had in reaction to the earlier state court action. They and the

defendants then moved to dismiss the action on various grounds,

including the argument that the Rooker-Feldman doctrine

deprived the federal district court of jurisdiction to hear the case,

given the earlier state court litigation on the disincorporation

issue. The district court ruled for the defendants on the merits,

App. 17a-21a, but also indicated that it agreed with the Rooker-

Feldman argument. App. 22a n.1.

The Court of Appeals, declining to reach the merits of —

Halbman’s claims, affirmed solely on the basis of the Rooker-

Feldman doctrine. App. 5a-13a. It construed that doctrine as

barring “not only straightforward appeals” from state court

judgments brought in federal courts, “but also more indirect

attempts by federal plaintiffs to undermine state court decisions”

— that is, efforts by federal plaintiffs to raise “general

constitutional claims that are ‘inextricably intertwined’ with

specific claims already adjudicated in state court.” App. Sa-6a.’

A key “complicating factor” in this analysis, the Court of

Appeals candidly noted, lay in the fact that Halbman was not “a

party to the state court action” and, further, that “the state court

plaintiffs who raised the due process challenge would not have

had standing to raise the first amendment and equal protection

{claims raised by Halbman] because the state court plaintiffs,

unlike [Halbman], were registered voters.” App. 9a. On this

point, the Court of Appeals observed that several circuits “have

held that the Rooker-Feldman doctrine does not apply to bar a

suit in federal court brought by a party that was not a party in the

preceding state court action.” App. 9a. But it found itself

persuaded by the approach that had been taken in other federal

court opinions that it is proper “to apply Rooker-Feldman against

parties who did not participate in the state suit.” App. 10a.

Thus, the Court of Appeals held that the fact “that appellants

> According to the Court of Appeals, a federal court claim is

“inextricably intertwined with a state court judgment ‘if the federal claim

succeeds only to the extent that the state court wrongly decided the issue

before it."” App. 6a (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25

(1987) (Marshall, J., concurring)). The Court of Appeals found this

“inextricably intertwined” test met in this case on the basis that the Missouri

state court action had rejected attacks on the county’s order of

disincorporation, and that Halbman’s federal court action called into question

the county’s order of disincorporation. App. 6a-9a. See, e.g., App. 7a (noting

that “the relief sought” by Halbman “— to enjoin the disincorporation of

Peerless Park — would, as a practical matter, directly nullify the final

judgment of the state district court upholding disincorporation.”).

‘|

were not parties to the state suit is not by itself dispositive.”

App. 10a-11a. :

Under its view of the Rooker-Feldman doctrine, the Eighth

Circuit ruled against Halbman on the ground that “there can be

little doubt” that Halbman “had ample opportunity to bring [his]

first amendment and equal protection claims in state court.”

App. 12a. Although he was “well aware” of the state court

action, he did not file his federal court action until after the state

court plaintiffs had failed on their arguments against

disincorporation. App. 12a-13a. “This the Rooker-Feldman

doctrine does not allow,” the court held. App. 13a (citing Long

v. Shorebank Dev. Corp., 182 F.3d 548, 558 (7th Cir. 1999)).

On September 18, 2000, the court denied Halbman’s petition

for rehearing and suggestion for rehearing en banc. App. 36a.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE CONFLICT IN THE CIRCUITS OVER WHETHER

THE ROOKER-FELDMAN DOCTRINE APPLIES TO A

NONPARTY TO AN EARLIER STATE COURT ACTION

As the Eighth Circuit observed in its decision below, the

lower federal courts are in conflict over the threshold issue of

whether the Rooker-Feldman doctrine may be applied to

preclude a plaintiff from suing in federal court on the basis of an

earlier state court action in which the plaintiff was not a party.

_ App. 9a-10a. This issue has recently drawn substantial scholarly

attention as an important one worthy of this Court’s plenary

review and definitive resolution. See generally Symposium: The

Rooker-Feldman Doctrine, 74 Notre Dame L. Rev. 1081-1233

(1999). See, e.g., Suzanna Sherry, Judicial Federalism in the

Trenches: The Rooker-Feldman Doctrine in Action, id. at 1985,

1112-23 (collecting and defending lower court rulings applying

the Rooker-Feldman doctrine to nonparties) (relied on by the

court below, see App. 10a); Barry Friedman and James E.

Gaylord, Rooker-Feldman, From the Ground Up, id. at 1129,

1141-47 (addressing the due process implications of these

rulings); Susan Bandes, The Rooker-Feldman Doctrine:

Evaluating Its Jurisdictional Status, id. at 1175, 1194-95

(describing the “rather frightening position” that the Rooker-

Feldman doctrine may be invoked against a federal plaintiff

based on an earlier state court action “brought by different parties

in an entirely different case”); Jack M. Beermann, Comments on

Rooker-Feldman or Let State Law Be Our Guide, id. at 1209,

1221-22 (noting that the application of the Rooker-Feldman

doctrine to nonparties involves “radical” changes, such as the

creation of “a complicated set of rules requiring nonparties to

intervene in numerous situations to preserve their rights,” thereby

effectively imposing federal court supervision of “the mandatory

party practice of the state courts”).

Review of the decision below, and resolution of the conflict

in the circuits, is particularly warranted for three reasons. First,

the Rooker-Feldman doctrine has “experienced explosive growth

in the lower courts” in the past 15 years, during which it has been

addressed only in passing by this Court, producing a need for

clarification. Sherry, supra, 74 Notre Dame L. Rev. at 1087-88

& n.16. See also Bandes, id. at 1188 n.64 (“given the lack of

Supreme Court guidance on the subject, we currently have

multiple federal court decisions with no uniformity”); Thomas D.

Rowe, Jr., Rooker-Feldman: Worth Only the Powder to Blow It

Up?, id. at 1081, 1084 (noting apparent scholarly consensus that

“the proliferation of lower court case law with many different

emphases and some highly questionable decisions suggests” a

need for Supreme Court review of the Rooker-Feldman

doctrine); Richard H. Fallon, Daniel J. Meltzer & David L.

Shapiro, Hart & Wechsler’s The Federal Courts and the Federal

System 216 (4th ed. 2000 Supp.) (“The lower courts have had

difficulty interpreting and applying the Rooker-Feldman

doctrine, and to date, the Supreme Court has done virtually

nothing to give them guidance.”).

Second, the approach of the Eighth Circuit, in permitting the

_ invocation of the doctrine against nonparties, is unsupported by

any statutory text or discernible federal interest, or any need to

vindicate a state interest or concern. See Beermann, supra, 74

Notre Dame L. Rev. at 1218-19, 1221-23, 1228-29.

Third, the use of the doctrine to preclude a federal court

action by a nonparty to the prior state court proceeding raises

grave questions concerning a nonparty’s right to a day in court

under the due process clause of the Fourteenth Amendment.

See, e.g., Martin v. Wilks, 490 U.S. 755, 759-65 (1989). See also

Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999); South

Central Bell Telephone Co. yv. Alabama, 526 U.S. 160, 167-68

(1999); Baker v. General Motors Corp., 522 U.S. 222, 237 n.11

(1998); Richards v. Jefferson County, 517 U.S. 793, 797-802

(1996); Friedman & Gaylord, supra, 74 Notre Dame L. Rev. at

1141-43,

A. The Majority View

The majority view is that the Rooker-Feldman doctrine may

not be applied to block suit by a federal court plaintiff who was

not a party to the earlier state court litigation. See 18 Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 4469.1, at 630 (2000 Supp.) (noting

“rule that Rooker-Feldman doctrine does not defeat federal

jurisdiction when a nonparty brings the action, even though

decision may involve matters inextricably intertwined with a

State judgment”). At least six circuits — the Third, Fourth,

Sixth, Ninth, Tenth, and Eleventh Circuits — take this approach.

Third Circuit. The Third Circuit has long refused to apply

the Rooker-Feldman doctrine to bar suit by a federal court

plaintiff that was not a party to the earlier state court action. In

Valenti v. Mitchell, 962 F.2d 288 (3d Cir. 1992), that circuit

addressed a federal court ballot access lawsuit filed under 42

U.S.C. § 1983 in the aftermath of related state court litigation.

The court rejected the argument that the claims of all of the

plaintiffs should be dismissed based on the Rooker-Feldman

doctrine. Jd. at 294-95. With respect to the plaintiffs who had

not appeared as parties in the earlier state court litigation, the

Third Circuit held that “[a] non-party is not precluded from

relitigating matters decided in a prior action simply because it

passed by an opportunity to intervene.” Jd. at 297 (citations

omitted). The court could find “no authority which would

extend the Rooker-Feldman doctrine to persons not parties to the

proceedings before the state supreme court.” Jd.

In FOCUS v. Allegheny County Court of Common Pleas, 75

F.3d 834 (3d Cir. 1996), the Third Circuit reiterated its view

“that ‘Rooker-Feldman does not bar individual constitutional

claims by persons not parties to earlier state court litigation.” Jd.

at 840 (quoting Valenti, 962 F.2d at 298). See also Marks v.

Stinson, 19 F.3d 873, 886 n.11 (3d Cir. 1994) (holding that

Latino absentee voters were not barred from suit under Rooker-

Feldman “because they were not parties to any of the state court

proceedings on the matter”); E.B. v. Verniero, 119 F.3d 1077,

1092 (3d Cir. 1997) (reiterating that ““Rooker-Feldman does not

bar individual constitutional claims by persons not parties to

earlier state court litigation’”) (quoting Valenti, 962 F.2d at 298).

Fourth Circuit. In Gross v. Weingarten, 217 F.3d 208, 218

n.6 (4th Cir. 2000), the Fourth Circuit rejected the district court’s

reliance on the Rooker-Feldman doctrine to bar federal court

litigants from introducing certain evidence inconsistent with a

state court order in a proceeding in which they had not been

parties.. The Fourth Circuit read this Court’s decision in Johnson

v. De Grandy, 512 U.S. 997, 1005-06 (1994), as holding that the

Rooker-Feldman doctrine “does not apply . . . when the person

asserting the claim in the federal suit was not a party to the state

proceeding.” Jd.‘

* Johnson v. De Grandy involved a federal court voting rights lawsuit

filed by the federal government claiming that Florida’s reapportionment plan

for its legislature unlawfully diluted the voting strength of minorities in the

Dade County area. Pointing to an earlier lawsuit in the Florida Supreme Court

Sixth Circuit. In United States v. Owens, 54 F.3d 271 (6th

Cir.), cert. dismissed, 516 U.S. 983 (1995), the Sixth Circuit

agreed with the Third Circuit’s conclusion that “[t]he Rooker-

Feldman doctrine does not apply to bar a suit in federal court

brought by a party that was not a party in the preceding action in

state court.” Jd. at 274 (citing Valenti). It explained its

reasoning as follows:

A person who was not a party in the state court action

did not have an opportunity to litigate its claims. That

person must be allowed to bring an action in federal

court to attempt to vindicate its perceived rights,

otherwise it will have no chance to do so. A party has

no obligation to attempt to intervene in a state court

action when it is not named in the suit in order to

preserve its rights.

Id. See also Gottfried v. Medical Planning Services, Inc., 142

F.3d 326, 330 (6th Cir.), cert. denied, 525 U.S. 1041 (1998)

(reaffirming Owens holding).

Ninth Circuit. In Bennett v. Yoshina, 140 F.3d 1218 (9th

Cir. 1998), cert. denied, 525 U.S. 1103 (1999), the Ninth Circuit

upheld the district court’s decision in a federal voting rights case

that relied on Johnson v. De Grandy to hold that the Rooker-

in which the United States could have intervened, Florida argued that the

lawsuit should be dismissed under the Rooker-Feldman doctrine, “under

which a party losing in state court is barred from seeking what in substance

would be appellate review of the state judgment in a United States district

court....” 512 U.S. at 1005-06. On this issue, this Court held that the

doctrine was “inapt” because, unlike in Rooker or Feldman, “the United States

was not a party in the state court” and “was in no position to ask this Court to

review the state court’s judgment.” Instead, this Court concluded, “[tJhe

United States merely seeks to litigate its § 2 case for the first time.” Jd. at

1006. A number of lower federal courts have declined to follow the Johnson

v. De Grandy analysis, evidently viewing it as too “brief, equivocal, and

conclusory” to constitute “binding precedent.” Sherry, supra, 74 Notre Dame

L. Rev. at 1112 n.108.

Feldman doctrine was “not implicated in this case because it

applies only when the federal plaintiff was a party to the state

suit.” Jd. at 1223-24 (citing Johnson, 512 U.S. at 1006). The

court refused to preclude even the two federal court plaintiffs

that had participated as amici curiae in the state court proceed-

ings, given that amici “are not actually parties to a case, cannot

conduct discovery, and do not have the right to appeal an adverse

decision.” Jd. at 1124.

Tenth Circuit. In Johnson v. Rodrigues, 226 F.3d 1103

(10th Cir. 2000), the Tenth Circuit reversed the district court’s

dismissal of a lawsuit brought by a father against an adoption

agency and adoptive parents, following a state court adoption

proceeding to which the father had not been made a party. The

Tenth Circuit based its decision on its reading of Johnson v. De

Grandy as holding that “the Rooker-Feldman doctrine should not

be applied against non-parties.” Jd. at 1009-10 (citing cases).

Eleventh Circuit. In Roe v. Alabama, 43 F.3d 574 (11th Cir.

1995), a federal voting rights case, the Eleventh Circuit affirmed

the district court’s decision that the Rooker-Feldman doctrine

was inapplicable. Citing this Court’s decision in Johnson v. De

Grandy, the court held that because the federal court plaintiffs

were not parties to the earlier state court action, “[t]he Rooker-

Feldman doctrine does not apply.” Jd. at 580.

B. The Minority View

As noted in the decision of the Court of Appeals below,

App. 10a, some federal courts and judges have taken the contrary

view: that the Rooker-Feldman doctrine can be applied to bar

the suit of a federal court plaintiff who was not a party to the

earlier state court litigation. See also Sherry, supra, 74 Notre

Dame L. Rev. at 1112-13. We briefly summarize these cases.

Seventh Circuit. According to the court below, the Seventh

Circuit has “not hesitated to apply Rooker-Feldman against

parties who did not participate in the state suit.” App. 10a. The

Seventh Circuit decision cited in support of this statement is

T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997), a decision

that appears to rely on the Rooker-Feldman doctrine to preclude

a federal court action by a nonparty to the earlier state court

action. Jd. at 896, 898 (barring suit by an individual, not a party

to a state court child custody action, who sought to appear in

federal court as the guardian ad litem for the children involved).°

Eighth Circuit. In this case, the Eighth Circuit clearly

embraced the minority view that the Rooker-Feldman doctrine

may be applied against nonparties to the state court action. App.

10a. In so doing, the Eighth Circuit explicitly rejected its earlier

dictum that under this Court’s decision in Johnson v. De Grandy,

“the Rooker-Feldman rule does not bar a federal claim brought

by one who was not a party to the state court action and therefore

not in any position to seek appellate review of the state court

judgment.” Snider v. City of Excelsior Springs, 154 F.3d 809,

812 (8th Cir. 1998) (citing Johnson, 512 U.S. at 1005-06). That

statement was not determinative of the outcome in Snider

because of the Eighth Circuit’s conclusion that the federal court

* See also Sherry, supra, 74 Notre Dame L. Rev. at 1119. Prior

decisions of the Seventh Circuit appeared to follow the majority view. See,

e.g., Hoover v. Wagner, 47 F.3d 845, 849 (7th Cir. 1995) (in rejecting a

Rooker-Feldman argument against the federal court plaintiffs’ attack on a

state court injunction that impaired their anti-abortion protest activities, the

court observed that “the plaintiffs are not parties to the state court action, so

it is a little hard to describe what they are doing as circumventing the

prescribed mode of appellate review. Their rights have not been adjudicated;

and ordinarily that would bar the defendants’ invocation of Rooker-

Feldman.”) (citing Valenti, 962 F.2d at 297-98); Allen v. Allen, 48 F.3d 259,

261 (7th Cir. 1995) (noting that the Rooker-Feldman doctrine leaves “non-

parties free to pursue their claims” in federal court); Leaf v. Supreme Court

of Wisconsin, 979 F.2d 589, 597-98 (7th Cir. 1992), cert. denied, 508 U.S.

941 (1993) (holding that “because Haynes was not a party” to the earlier state

court proceedings, “the district court was not deprived of jurisdiction to

proceed on Haynes’s federal claims under the Rooker-Feldman doctrine”).

Cf Sherry, supra, 74 Notre Dame L. Rev. at 1118-19 (analyzing Leaf and

Allen decisions).

plaintiffs in that case had been parties to the state court lawsuit

(as members of a duly certified class). Jd. In the decision below 2

— in which the court noted that Halbman was not “a party to the “

state court action,” App. 4a — the Eighth Circuit, in rejecting its 8

prior dictum in Snider, heid instead that this Court’s statement in.

Johnson that Rooker-Feldman applies only to parties to the state

court action was itself dictum. App. 1l1an.6. The Eighth Circuit

recently reaffirmed this aspect of the decision below. Brown v.

Sweeney, 2000 U.S. App. LEXIS 31325, *1-2 (8th Cir. Dec. 8,

2000) (citing Lemonds v. St. Louis County, 222 F.3d 488, 492-95

(8th Cir. 2000)) (“Rooker-Feldman doctrine . . . applies even

where party to federal action was not party to state action”).

Circuit Court Individual Opinions and District Court

Decisions. Also articulating the minority rule concerning the

application of the Rooker-Feldman doctrine to nonparties are two

individual opinions by Ninth Circuit and Eleventh Circuit judges.

A concurrence in Bates v. Jones, 131 F.3d 843, 855-57 (9th Cir.

1997) (en banc) (Rymer, J., joined by O’Scannlain, J.,

concurring), cert. denied, 523 U.S. 1021 (1998), objected to the

district court having reached the merits of_a challenge to

California’s term limits for state officials, after the California

Supreme Court had already rendered a decision on the matter in

a case that was brought by entirely different parties. Arguing

that the Rooker-Feldman doctrine should bar the lawsuit, Judge

Rymer noted that the federal court action had been brought by

“different legislators, and different constituents,” but observed:

“I fail to see what difference that makes.” Jd. at 857. Cf.

Bandes, supra, 74 Notre Dame L. Rev. at 1194-95, 1199

(describing Bates concurrence as advancing a “rather frightening

position” that “would have devastating consequences for litigant

access to federal court”). Similarly, the dissent in Roe v.

Alabama, 43 F.3d 574, 586 (11th Cir. 1995) (Edmondson, J.,

dissenting), a federal voting rights case, questioned what it saw

as the majority’s view “that only absolute identity of parties in

the state court action and federal court action (without regard to

state-case parties possibly under the control of or in privity with

federal-case parties) will trigger a Rooker-Feldman bar in federal

court.”

Finally, as noted in the decision below, App. 10a, and by a

leading commentator cited in the decision, see Sherry, supra, 74 =

Notre Dame L. Rev. at 1113, federal district judges located in the :

Fourth and Eleventh Circuits have issued decisions that applied

the Rooker-Feldman doctrine to nonparties to the earlier state

court litigation, in reasoning that was not addressed on appeal.

~__ See Republic of Paraguay v. Allen, 949 F. Supp. 1269, 1273 (E.

D. Va. 1996), aff'd on other grounds, 134 F.3d 622, 626-27 &

n.4 (4th Cir. 1998); Williams v. Adkinson, 792 F. Supp. 755, 761-

63 (M. D. Ala. 1992), aff'd without opinion, 987 F.2d 774 (11th

Cir. 1993).

Il. CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE CONFLICT IN THE CIRCUITS OVER WHETHER

THE ROOKER-FELDMAN DOCTRINE APPLIES WHERE

THE FEDERAL COURT PLAINTIFF DOES NOT ALLEGE

INJURY CAUSED BY THE STATE COURT JUDGMENT

Although the Eighth Circuit only briefly addressed the point

in its decision, App. 5a-9a, there is also a longstanding

disagreement among the circuits, and general confusion, over

what overlap between a federal court action and an earlier state

court action is enough to trigger the use of the Rooker-Feldman

doctrine. Even if this Court were to resolve the conflict

discussed in Part I by deciding that there are instances,

potentially embracing this case, in which the Rooker-Feldman

doctrine may be applied to a nonparty to a state court proceeding,

this further disagreement provides an additional reason for

granting certiorari in order to bring consistency and coherence to

another aspect of the doctrine.

As Rooker itself made clear, assuming that other conditions

for the application of this doctrine are met, the doctrine is

triggered if the federal court plaintiff explicitly asks that the state

court judgment be voided. Rooker v. Fidelity Trust Co., 263

U.S. 413, 414-16 (1923). The question is whether and to what

extent action short of such a request will trigger the Rooker-

Feldman doctrine. Some circuits narrowly confine the

circumstances that will trigger the doctrine, and others (including

the Eighth Circuit) broadly interpret its scope.

A. The Narrow Construction of Rooker-Feldman

The view taken by leading commentators and several circuits

is that the Rooker-Feldman doctrine should be narrowly

construed to “reduce the occasions that require a federal court to

give greater effect to a state judgment than would be recognized

in state courts.” 18 Wright, Miller & Cooper, supra, § 4469.1,

at 633 (2000 Supp.) (citation omitted). These authorities would

permit use of the doctrine to block only those federal court

“claims that seek to ‘undo a remedial order of some sort,”

effectively limiting the doctrine “to actions that seek an order

directed to a state court.” Jd. at 633-34, 662 & n.80 (quoting

Nesses v. Shepard, 68 F.3d 1003, 1004 (7th Cir. 1995) (Posner,

C.J.)).

The Seventh Circuit has followed this narrow, bright-line

test for triggering the Rooker-Feldman doctrine in numerous

cases during the past decade. In GASH Associates v. Village of

Rosemont, 995 F.2d 726 (7th Cir. 1993) (Easterbrook, J.), the

court held that the distinction between preclusion and the

Rooker-Feldman doctrine means that the doctrine is not triggered

simply because the federal court plaintiff presents a claim that

was earlier rejected by a state court:

The Rooker-Feldman doctrine asks: is the federal court

plaintiff seeking to set aside a state judgment, or does he

present some independent claim, albeit one that denies

a legal conclusion that a state court has reached in a

case to which he was a party? If the former, then the

district court lacks jurisdiction; if the latter, then there

is jurisdiction and state law determines whether the

defendant prevails under principles of preclusion.

—————

Id. at 728.

On the facts of the GASH Associates case, in which a

building owner was attacking the result of a state court

foreclosure action, the Seventh Circuit found the Rooker-

Feldman doctrine applicable on the basis that the plaintiff

has no claim independent of the state court’s adverse

decision. To put this differently, the injury of which

GASH complains was caused by the judgment, just as

in Rooker [and] Feldman .... GASH did not suffer an

injury out of court and then fail to get relief from state

court; its injury came from the judgment confirming the

sale....

Id. at 729. This view — that the Rooker-Feldman doctrine is

only triggered if the federal court plaintiff claims injury caused

by the state court judgment itself — has been reiterated by the

Seventh Circuit on numerous occasions.®

Five other circuits (the Second, Third, Fourth, Eleventh, and

D.C. Circuits) have to varying degrees followed the Seventh

Circuit in articulating a narrow scope for the Rooker-Feldman

doctrine, one that focuses on whether the federal court plaintiff

is alleging an injury caused by the state court judgment.

* See, e.g., Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 702-03

(7th Cir. 1998) (“a federal claim alleging injury caused by a state court

judgment must be distinguished from a federal claim alleging a prior injury

that a state court failed to remedy,” and here the plaintiff “does not allege an

injury from the state court judgment itself; rather, it challenges the actions of

the defendants.”). See also 4901 Corporation v. Town of Cicero, 220 F.3d

522, 527-28 (7th Cir. 2000); Remer v. Burlington Area Sch. Dist., 205 F.3d

990, 997 (7th Cir. 2000); Long v. Shorebank Dev. Corp., 182 F.3d $48, 555-

56 (7th Cir. 1999); Van Harken v, City of Chicago, 103 F.3d 1346, 1349 (7th

Cir.), cert. denied, 520 U.S. 1241 (1997); Kamilewicz v. Bank of Boston

Corp., 92 F.3d 506, 510 (7th Cir. 1996), rehearing en banc denied, 100 F.3d

1348, cert. denied, $20 U.S. 1204 (1997); Young v. Murphy, 90 F.3d 1225,

1230-31 (7th Cir. 1996); Garry v. Geils, 82 F.3d 1362, 1365-68 (7th Cir.

1996); Homola v. McNamara, 59 F.3d 647, 650 (7th Cir. 1995).

The circuit that has been most explicit in agreeing with the

Seventh Circuit on this score is the Third Circuit. In Parkview

Associates Partnership. v. City of Lebanon, 225 F.3d 321, 326

(3d Cir. 2000), the Third Circuit noted “the overwhelming

precedent in this court construing the Rooker-Feldman doctrine

narrowly” in its decision reversing a district court’s reliance on

that doctrine. In that case, a nursing home seeking to expand had

been denied the necessary zoning variance, after which it had

appealed that result to state court on the record before the zoning

board, and lost. It then filed a federal court action alleging

violations of anti-discrimination statutes. Adopting the approach

of the Seventh Circuit, the Third Circuit found no Rooker-

Feldman bar to the nursing home’s federal court action, which

challenged the underlying zoning board decision and not the

ruling of the state court. Jd. at 328-29 (citing GASH Associates,

995 F.2d at 728).

The Fourth, Eleventh and D.C. Circuits have also favorably

(although more briefly) cited Seventh Circuit precedent in

emphasizing that the Rooker-Feldman doctrine targets those

plaintiffs who are attacking a state court judgment. See Brown

& Root, Inc. v. Breckenridge, 211 F.3d 194, 202 (4th Cir. 2000)

(quoting GASH Associates, 995 F.2d at 727); Allstate Ins. Co. v.

West Virginia State Bar, 2000 U.S. App. LEXIS 30143, at *22

(4th Cir. Nov. 30, 2000) (same); Narey v. Dean, 32 F.3d 1521,

1524-25 (11th Cir. 1994) (citing GASH Associates, 995 F.2d at

728); Stanton v. District of Columbia Court of Appeals, 127 F.3d

72, 75 (D.C. Cir. 1997) (same). The Second Circuit has cited

Seventh Circuit precedent in refusing to “extend or amplify the

Rooker-Feldman doctrine,” observing that “[w]hether the

Rooker-Feldman doctrine is coextensive with preclusion or

extends beyond preclusionary rules is a question that has

perplexed courts and commentators.” Hachamovitch vy.

DeBuono, 159 F.3d 687, 696 (2d Cir. 1998) (citing Garry v.

Geils, 82 F.3d 1362, 1367-68 (7th Cir. 1996)).

ied ah ia ana Se ea ee a

B. The Broad Construction of Rooker-Feldman

Several circuits, however, have construed the Rooker-

Feldman doctrine much more broadly. These circuits permit it

to be used, as the Eighth Circuit did in this case, see p. 7 & note

3, supra, to bar a plaintiff from proceeding in federal court even

where the plaintiff alleges no injury caused by the state court

judgment, but simply alleges an injury caused by the defendants

that a state court merely has failed to remedy.’ The basic theory

behind these decisions, one never articulated by a majority of this

Court, is that the Rooker-Feldman doctrine should bar suit

whenever “the federal court cannot rule for the plaintiff without

holding the state court judgment erroneous.” Sherry, supra, 74

Notre Dame L. Rev. at 1094-95 & n.41 (citing Pennzoil Cov. |

Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring),

and citing lower court applications of this theory).

This approach to the Rooker-Feldman doctrine involves a

“transmutation of res judicata doctrine into jurisdictional

dogma,” 18 Wright, Miller & Cooper, supra, § 4469.1, at 633

(2000 Supp.), in tension with the functioning of 28 U.S.C.

§ 1738, “which requires the federal court to give the judgment

the same effect as the rendering state would.” GASH Associates,

"See, e.g., Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir. 2000); Hill v.

Town of Conway, 193 F.3d 33, 39-40 (Ist Cir. 1999); Moccio v. New York

State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir. 1996); Cazz v.

Chalker, 142 F.3d 279, 293-95 (6th Cir. 1998); Meyer v. California Dep't of

Rehabilitation, 1999 U.S. App. LEXIS 7278, at *2 (9th Cir. Apr. 12, 1999);

Harpin v. Oakley Custom Homes, 2000 U.S. App. LEXIS 25936, at *7-8

(10th Cir. Oct. 17, 2000).

* The opinion for the Court in Pennzoil did not mention the Rooker-

Feldman doctrine. The five justices who did discuss the doctrine articulated

varying views of its applicability and meaning, and no Justice joined in Justice

Marshall’s proposed construction of the doctrine. 481 U.S. at 18 (Scalia, J.,

joined by O’Connnor, J., concurring); id. at 21 (Brennan, J., joined by

Marshall, J., concurring in the judgment); id. at 28 (Blackmun, J., concurring

in the judgment).

995 F.2d at 728 (emphasis added). See also Bandes, supra, 74

Notre Dame L. Rev. at 1201 (noting the absence of any clear

rationale or direction in Justice Marshall’s proposed test);

Beermann, supra, 74 Notre Dame L. Rev. at 1211-12 (noting that

this construction of Rooker-Feldman circumvents this Court’s

rulings that state court judgments may not receive “greater

preclusive effect in federal court than they would receive in state

court.”).

The Eighth Circuit’s embrace of this theory to dispose of

Halbman’s lawsuit is clear from its past decisions and its

decision below. In Jn re Goetzman, 91 F.3d 1173, 1177-78 (8th

Cir.), cert. denied, 519 U.S. 1042 (1996), the court upheld a

district court’s reliance on the Rooker-Feldman doctrine to

dismiss a lawsuit that merely sought a result different from the

result of an earlier state court lawsuit. See also Bechtold v. City

of Rosemount, 104 F.3d 1062, 1065-66 (8th Cir. 1997). And in

Snider v. City of Excelsior Springs, 154 F.3d 809, 811 (8th Cir.

1998), the Eighth Circuit explicitly held that the Rooker-

Feldman doctrine is triggered if a determination by the federal

court in the plaintiffs favor would amount to a finding “that [the

state court] decision was wrong.”

In the decision below, in applying its broad construction of

the Rooker-Feldman test to dismiss Halbman’s case, the Eighth

Circuit cited both its earlier decision in Snider and Justice

Marshall’s Pennzoil concurrence articulating this theory. App.

6a. Under this view, the court stated, the Rooker-Feldman

doctrine may be used to foreclose “indirect attempts by federal

plaintiffs to undermine state court decisions.” App. Sa.

Applying this broad test, the court noted that the earlier state

court litigation brought by the City of Peerless Park and two of

its officials challenged the disincorporation petition on

constitutional grounds, but “the state court declined to reverse

the council’s disincorporation order.” App. 6a-7a. This, the

court held, was enough to bar Halbman’s lawsuit under the

Rooker-Feldmandoctrine either: (1) on the theory that a federal

court decision granting Halbman relief would somehow “nullify”

the state court’s order refusing others relief, App. 7a, or (2) on

the theory that Halbman’s federal claims “closely implicate the

decision of the state court,” even though “technically the suits

invoke distinct constitutional provisions.” App. 7a-8a. The

Eighth Circuit recently reaffirmed this aspect of the decision

below. Brown v. Sweeney, 2000 U.S. App. LEXIS 31325, *1-2

(8th Cir. Dec. 8, 2000) (citing Lemonds v. St. Louis County, 222

F.3d 488, 492-95 (8th Cir. 2000)) (Rooker-Feldman doctrine

applies “if federal claim succeeds only to extent state court

wrongly decided issue before it”).

Under the narrow approach to the Rooker-Feldman doctrine

embraced by the Seventh Circuit and several other circuits,

Halbman’s lawsuit could not be dismissed because that lawsuit

does not claim that the state court judgment caused Halbman

injury. Rather, his lawsuit simply ignores that judgment, which

was entered against others who elected to sue in state court, and

seeks only relief against defendants for their allegedly

unconstitutional actions. But under the broader, and

unwarranted, interpretation of the doctrine adopted by the court

below, Halbman’s lawsuit was dismissed.

Thus, if this Court determines (in disagreement with our

position in this case) that Halbman’s status as a nonparty to the

state court proceeding is not in itself a bar to the application of

the Rooker-Feldman doctrine, this case then presents an

excellent opportunity to resolve an equally important matter

concerning the basic scope and function of the doctrine.

CONCLUSION

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

should be granted.

Respectfully submitted.

DAVID L. SHAPIRO KENNETH CHESEBRO*

1575 Massachusetts Ave. 1600 Massachusetts Ave.

No. 304 No. 801

Cambridge, MA 02138 Cambridge, MA 02138

(617) 495-4618 (617) 661-4423

JACK M. BEERMANN SEBASTIAN RUCCI

765 Commonwealth Ave. 3058 Chardonnay Lane

No. 970C Poland, OH 44514

Boston, MA 02215 (330) 707-1182

(617) 353-2577

Counsel for Petitioner

* Counsel of Record

December 18, 2000

TABLE OF APPENDICES

APPENDIX A

Decision of the United States Court of Appeals for

the Eighth Circuit entered August 3,2000............

APPENDIX B

Decision and judgment of the United States

District Court for the Eastern District of

Missouri entered October 15,1999 ............005-

APPENDIX C

Decision and judgment of the Circuit Court

of the County of St. Louis, State of Missouri,

eo ree per ree error 24a

APPENDIX D

Decision of the Court of Appeals of Missouri,

Eastern District, Division Two, entered

AGU Fag TPE i hod bei a 6h aes ewaees eA 34a

APPENDIX E

Order of the United States Court of Appeals for

the Eighth Circuit denying rehearing and

rehearing en banc, entered September 18,2000 ...... 36a

(This page is intentionally left blank]

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 99-3007

Rich Lemonds; Rich Halbman,

Plaintiffs/Appellants,

St. Louis County, a county having a

charter form of government; City of

Peerless Park, a municipal corporation;

Dudley McCarter, trustee for the City

of Peerless Park; Blanche Sutherland,

Defendants/Appellees,

Donna Asberry; John Asberry; Lisa

Chambers; Mary Corbett; Kevin Grady;

Elisabeth Kreminski; Frank Kreminski;

Mike McCole; Susan McCole; Greg

Lasky; Joseph Otzenberger; Elaine

Otzenberger; Thaddeus Otzenberger:

Arthur Otzenberger; Rosemarie

Otzenberger; Ritamarie Otzenberger;

Melvin Sutherland,

Intervenor

Defendants/Appellees.

Appeal from the

United States

District Court for

the Eastern District

of Missouri

No. 99-3930

Rich Lemonds; Rich Halbman, °

Plaintiffs/Appellants, .

v. * Appeal from the

* United States

St. Louis County, @ county having 4 * District Court for

charter form of government, City of the Eastern District

Peerless Park, @ municipal corporation; of Missouri

Dudley McCarter, trustee for the City

of Peerless Park;

Defendants/Appellees,

€

”

Mike McCole; Susan McCole; Greg

| Lasky; Joseph Otzenberger; Elaine

Intervenor

Otzenberger; Ritamarie Otzenberger; °

| Defendants/Appellees. .

Filed: August 3, 2000

—

| Submitted: April 12, 2000

(Page numbering from 222 F.34 488 indicated in bold]

[491] Before WOLLMAN, Chief Judge, MAGILL,

Circuit Judge, and FRANK;! District Judge.

WOLLMAN, Chief Judge.

Rich Lemonds and Rich Halbman (appellants) appeal from

the district court’s? denial of their requests for a preliminary

injunction and for leave to file a third amended complaint.

Appellants also appeal from the dismissal with prejudice of

their 42 U.S.C. § 1983 claims. We affirm.

3 L

On December 11, 1997, eighteen registered voters living

in Peerless Park, Missouri, filed a petition with the St. Louis

County Council (the council) requesting that their small city be

concluded that the petition met the requirements of Missouri

Statutes section 79.495, which calls for the disincorporation of

a “fourth class city” having a population of less than one

hundred people upon petition by two thirds of that city’s voters.

Accordingl y, the council ordered the requested disincorporati i ion

and appointed a trustee to represent the former city.

! The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota, sitting by designation.

2 The Honorable E. Richard Webber, United States District Judge for the

Eastern District of Missouri.

? Peerless Park consisted of ten households, all within one block of each

other. Although the petition appears to have been the culmination of a long-

Shortly after this order was issued, the former city and two

of its former officials challenged the disincorporation in the

Missouri Circuit Court for St. Louis County (the state court).

The complaint, which named St. Louis County and several

members [492] of the council as defendants, sought to reverse

the disincorporation primarily on the grounds that the petition

was actually a request for a “boundary change,” and that, as

such, it was reviewable by the state Boundary Commission and

required an open public election under Missouri law. The

complaint further alleged that the council’s order was

“voidable” because section 79.495 violated the federal Due

Process Clause by failing to provide for notice of an impending

petition drive. The state court rejected the boundary change

argument, upheld the constitutionality of the statute, and found

that the statute’s requirements had been met. The court entered

judgment against the former city and its former officials. This

decision was affirmed by the Missouri Court of Appeals.

Neither appellant was a party to the state court action.

One week prior to the state appellate court affirmance,

appellants — residents of Peerless Park who were not

registered to vote when the petition was circulated — filed this

section 1983 action in federal district court against the County,

the city of Peerless Park, and the city’s trustee. The federal

complaint alleged that the statutory scheme permitting

disincorporation without an election violates both the First

Amendment and the Equal Protection Clause. The complaint

asserted that both appellants were “qualified” voters and that,

had they been notified that the petition was being circulated,

they would have registered so that they would be counted

toward the total number of voters residing in the city. As it was,

both appellants registered to vote on December 12, 1997, the

day after the petition was filed with the council; it is undisputed

that, had either of them done so previously, the number of

signatures on the petition would have been insufficient to

effectuate disincorporation. Appellants sought a preliminary

injunction, declaratory judgment, and permanent injunctive

relief voiding the disincorporation of Peerless Park.

The district court denied the request for a preliminary

injunction on June 19, 1999, and dismissed all claims with

prejudice on October 15, 1999. The court found that the

complaint failed to state a claim upon which relief could be

granted, that appellants lacked standing to raise their claims ir

any event, and that the suit was barred by res judicata principles

and the Rooker-Feldman doctrine. Timely appeals were taken

from both decisions, as well as from the court’s August 24,

1999, denial of leave to file a third amended complaint adding

four new plaintiffs. These appeals have been consolidated.

Il.

The Rooker-Feldman doctrine recognizes that, with the

exception of habeas corpus petitions, lower federal courts lack

subject matter jurisdiction over challenges to state court

judgments. See District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476; Rooker v. Fidelity Trust Co., 263

U.S. 413, 416 (1923). Instead, federal jurisdiction to review

most state court judgments is vested exclusively in the United

States Supreme Court. See 28 U.S.C. § 1257; Feldman, 460

U.S. at 486. Because the Rooker-Feldman rule is jurisdictional,

it may be addressed for the first time on appeal and may be

raised sua sponte. See Doctor's Associates, Inc. v. Distajo, 107

F.3d 126, 137 (2d Cir. 1997). We review questions of subject

matter jurisdiction de novo. See Charchenko v. City of

Stillwater, 47 F.3d 981, 982-83 (8th Cir. 1995).

The Rooker-Feldman doctrine forecloses not only straight-

forward appeals but also more indirect attempts-by federal

plaintiffs to undermine state court decisions. Thus, a corollary

to the basic rule against reviewing judgments prohibits federal

district courts from exercising jurisdiction over general

constitutional claims that are “inextricably intertwined” with

‘

specific claims already adjudicated in state [493] court. See

Feldman, 460 U.S. at 482 n. 16; Fielder v. Credit Acceptance

Corp., 188 F.3d 1031, 1034 (8th Cir. 1999); Neal v. Wilson,

112 F.3d 351, 356 (8th Cir. 1997). A general federal claim is

inextricably intertwined with a state court judgment “if the

federal claim succeeds only to the extent that the state court

wrongly decided the issue before it.” Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring). In such

cases, “where federal relief can only be predicated upon a

conviction that the state court was wrong, it is difficult to

conceive the federal proceedings as, in substance, anything

other than a prohibited appeal of the state-court judgment.” Jd.

The state and federal claims need not be identical. See Jn re

Goetzman, 91 F.3d 1173, 1177 (8th Cir. 1996)-

Deciding whether Rooker-Feldman controls this case

“requires determining exactly what the state court held” to

ascertain whether granting the requested federal relief would

either void the state court’s judgment or effectively amount to

a reversal of its holding.‘ Charchenko, 47 F.3d at 983; see

Snider v. City of Excelsior Springs, 154 F.3d 809, 811 (8th Cir.

1998). In addition to raising state law arguments not at issue

in this appeal, the state court action sought to invalidate the

council’s order on the basis of the federal Due Process Clause.

The complaint alleged that section 79.495 violates both

substantive and procedural due process principles by failing to

ensure that all residents of a fourth class city receive adequate

notice prior to the circulation of a disincorporation petition.

Resolving this challenge, the state court held:

“ Because the federal suit was filed prior to the decision of the Missouri

Court of Appeals, we focus on the opinion of the Missouri Circuit Court for

St. Louis County.

/ Ta

Because [plaintiffs] have no “life, liberty or

property” interest in the continued existence of - as

Peerless Park, . . . there is no constitutional

right to notice or a hearing. State law

provides, and [plaintiffs] received, more

process than [plaintiffs] were due. There is no

constitutional right to vote on disincorporation

of a fourth class city.

State ex rel. City of Peerless Park, Mo. v. Young, No. 98CC

1146 at 4-5 (St. Louis County, Mo., Cir. Ct., June 15, 1998)

(unpublished) (citation omitted), reprinted at App. 414, 419-20.

Accordingly, the state court declined to reverse the council’s

disincorporation order.

Turning to the federal complaint, we begin by noting that

the relief sought — to enjoin the disincorporation of Peerless

Park — would, as a practical matter, directly nullify the final

judgment of the state district court upholding disincorporation.

This fact alone may be sufficient to decide the case. See

Suzanna Sherry, Judicial Federalism in the Trenches: Rooker-

Feldman Doctrine in Action, 74 Notre Dame L. Rev. 1085,

1099 (1999) (suggesting that Rooker-Feldman applies wherever

the federal court “is in effect reviewing the state court judgment

even if it is not reviewing the decision”) (emphasis in original);

cf. Fed. R. Civ. P. 58 (distinguishing between judgments and

opinions); Fed. R. App. P. 36 (same).

We also find, however, that even if appellants were not

asking us effectively to overturn the state court’s judgment, the

federal claims they state so closely implicate the decision of the

state court that the federal suit would be barred anyway. See

Feldman, 460 U.S. at 482 n. 16. In reaching this conclusion,

we address two issues that complicate the inquiry.

_____ First, since Rooker-Feldman deprives federal courts of

jurisdiction over general claims not raised before the state court

only where such claims are inextricably intertwined with the

Ah nm - adnate < aeasnanei

State court judgment, “a claim — particularly a claim under

federal law — is not precluded if it is ‘separable from and

collateral to the merits of the state-court judgment.”” Fielder,

188-494] F.3d at 1034 (quoting Pennzoil, 481 U.S. 1 at 21

(Brennan, J., concurring)). Thus, it is sometimes permissible

for a plaintiff to challenge the constitutionality of a state rule in

federal court even though a state court has previously upheld a

particular application of the rule to that same plaintiff, so long

as the general federal challenge does not involve review of the

state court decision. See Feldman, 460 U.S. at 482-86. _

On its face, appellants’ federal complaint in this case may

initially appear to articulate legal claims that are “separable

from and collateral to” those raised before the state court.

Indeed, whereas the state court faced a due process challenge,

the 36-page federal complaint studiously avoids any mention

of “due process.” Instead, appellants creatively invoke the First

Amendment, alleging that the secrecy of the petition process

effectively “silenced” them, suppressing “core political speech”

by preventing them from “conveying a political message

against the disincorporation of the City.” In addition, because

qualified but unregistered voters were not counted toward the

total number of city residents for purposes of determining

whether the requisite signatures of two thirds of the population

had been recorded, appellants rely on the Equal Protection

Clause to argue that the secret petition process denied them an

“equal opportunity to win votes.” my

Ultimately, we believe that these arguments do no more

than restate the claim for relief that was rejected on the merits

by the state court. Although technically the suits invoke distinct

constitutional provisions, as a substantive matter they both

challenge the basic fairness of the petition process based on the

concept of lack of notice. Thus, the first amendment and equal

protection arguments presented to the district court appear to be

nothing more than creative attempts to reclothe the failed due

process claim in new constitutional garb. As such, these

arguments present us with a situation in which a decision

favorable to appellants could “only be predicated upon a

conviction that the state court was wrong.” Pennzoil, 481 U.S.

at 25 (Marshall, J., concurring). Without commenting on the

merits of appellants’ arguments, we simply reiterate that federal

plaintiffs cannot by artful pleading obtain a hearing of

disguised state court appeals that would otherwise be subject to

a Rooker-Feldman bar. See Fielder, 188 F.3d at 1034; Valenti

v. Mitchell, 962 F.2d 288, 296 (3d Cir. 1992) (party “cannot be

allowed to escape Rooker-Feldman by raising a new

constitutional theory in federal court”).

The second complicating factor is that the parties to this

suit are not the same as those who litigated in state court. Most

importantly, neither appellant was a party to the state court

action.* Appellants argue that the state court plaintiffs who

raised the due process challenge would not have had standing

to raise the first amendment and equal protection versions of

the same argument because the state court plaintiffs, unlike

appellants, were registered voters. Appellants also contend that

Rooker-Feldman “exists to prevent a party in a state court from

having two bites at the apple” and assert that “the Rooker-

Feldman doctrine has never been applied against nonparties.”

This is not quite accurate. We recognize that some courts

have held that the Rooker-Feldman doctrine does not apply to

bar a suit in federal court brought by a party that was not a

party in the preceding state court action. See, e. g., Bennett v.

Yoshina, 140 F.3d 1218, 1223-24 (9th Cir. 1998), cert. denied

sub nom. Citizens for a Constitutional Convention v. Yoshina,

525 U.S. 1103 (1999); United States v. Owens, 54 F.3d 271,

274 (6th Cir. 1995); [495] Valenti, 962 F.2d at 297-98; cf

Wright & Miller, Federal Practice & Procedure § 4469.1 (1999

* In addition, whereas Peerless Park was a plaintiff in the state court suit,

in this federal action the disincorporated city has been named as a

defendant.

10a

Supp.). Other courts, however, have not hesitated to apply

Rooker-Feldman against parties who did not participate in the

state suit, see 7.W. & M.W. v. Brophy, 124 F.3d 893, 898 (7th

Cir. 1997); Republic of Paraguay v. Allen, 949 F. Supp. 1269,

1273 (E. D. Va. 1996), aff'd on other grounds, 134 F.3d 622,

628 (4th Cir. 1997); Williams v. Adkinson, 792 F. Supp. 755,

761-63 (M. D. Ala. 1992), aff'd, 987 F.2d 774 (11th Cir. 1993)

(unpublished table decision), and more than one federal

appellate judge has expressed the view that the applicability of

Rooker-Feldman should not depend on identity of the parties

in the state and federal suits, see Bates v. Jones, 131 F.3d 843,

855-57 (9th Cir. 1997) (en banc) (Rymer, J., concurring); Roe

v. Alabama, 43 F.3d 574, 586 (11th Cir. 1995) (Edmondson, J.,

dissenting).

We are persuaded by the latter approach. Insisting that the

parties must be identical, it seems to us, confuses the Rooker-

Feldman doctrine with principles of res judicata. These

doctrines are not the same. See Hachamovitch v. DeBuono,

159 F.3d 687, 696 n.2 (2d. Cir. 1998) (noting that the “Rooker-

Feldman doctrine differs from preclusion in certain critical

ways”); Charchenko, 47 F.3d at 984-85 (conducting separate

analyses and finding claims barred by Rooker-Feldman but not

res judicata). Although the two rules often overlap in their

practical effects, they rest on contrasting foundations and serve

distinct purposes. Thus, whereas res judicata is largely a matter

of common law and involves, the impropriety of permitting

parties to have “two bites at the apple,” Rooker-Feldman is

based squarely on federal law and is concerned with federalism

and the proper delineation of the power of the lower federal

courts. Such courts are simply without authority to review

most state court judgments — regardless of who might request

them to do so. See Rooker, 263 U.S. at 416; Sherry, supra, at

1112-23. Accordingly, that appellants were not parties to the

lla

state suit is not by itself dispositive.*

That said, however, considering the situation of the parties

will often be helpful in the “inextricably intertwined” analysis.

The key inquiry, as always, must be whether the federal

plaintiff's interest in having a state rule set aside is inseparable

from his interest in upsetting a particular state court judgment

based on that rule. See Feldman, 460 U.S. at 482-86. This may

be the case where the federal plaintiff would have lacked

standing to bring the general challenge but for the state court’s

judgment, see Facio v. Jones, 929 F.2d 541, 545 (10th Cir.

1991), or where the relief sought in federal court both

implicates a state court decision and has merely retrospective

as opposed to prospective effect, compare Centifanti v. Nix,

865 F.2d 1422, 1430 (3d Cir. 1989) (disbarred attorney’s

prospective challenge to reinstatement rules not precluded by

Rooker-Feldman doctrine) with Stern v. Nix, 840 F.2d 208,

212 (3d Cir. 1988) (disbarred attorney’s retrospective challenge

to disbarment procedures precluded by Rooker-Feldman

doctrine).

Conversely, although the fact that appellants were not

parties to the state suit does not automatically preclude a

Rooker-Feldman bar, we recognize that some [496] courts

have declined to apply the rule where the federal plaintiffs

lacked a reasonable opportunity, through intervention or

otherwise, to litigate their claims in state court. See, e. g., Long

* We recognize that, in Snider, 154 F.3d at 812, we felt it necessary to

distinguish Johnson v. De Grandy, in which the Supreme Court stated that

the United States’s absence from a prior state court action supported the

conclusion that the Rooker-Feldman doctrine did not prevent the United

States from bringing a subsequent federal suit. See 512 U.S. 997, 1005-06

(1994). The absence of the United States from the state court proceedings

was not critical to the outcome in De Grandy, however, since the Court

additionally found, first, that the state court considered its own decision to

have been a mere “preliminary look” at the relevant claims and, second, that

the United States “had not directly attacked [the state court] judgment in

this proceeding.” Jd.

Ce ans ot gree te pram gRNRS darn acai t hee cit

srenpank Sab:

12a

v. Shorebank Dev. Corp., 182 F.3d 548, 558 (7th Cir. 1999);

Valenti, 962 F.2d at 296; Wood v. Orange County, 715 F.2d

1543, 1546-48 (11th Cir. 1983) (stating that when “plaintiffs

did not have a reasonable opportunity to raise their claims in

the state trial court where judgment was entered or on appeal of

that judgment, the [federal] district court will not usurp the role

of state appellate courts or the Supreme Court by accepting

jurisdiction”).’ si

In the present case, application of these principles

reinforces our conclusion that Rooker-Feldman bars the federal

claims. Appellants’ general constitutional challenge to section

79.495 is inseparable from their desire to reverse the

disincorporation of Peerless Park. Indeed, the only possible

basis for federal standing in this case arises from the council’s

disincorporation decision, which was sustained by the state

court in a judgment appellants now specifically ask us to

overturn. Moreover, because the entire upshot of a favorable

decision in this case would be to unwind the decision of the

state court, granting the requested relief would have only

retrospective effect. Appellants’ federal claims are thus

inextricably intertwined with the state court judgment. See

Feldman, 470 U.S. at 482 n.16.

Furthermore, there can be little doubt that both appellants

had ample opportunity to bring their first amendment and equal

protection claims in state court. Both Lemonds and Halbman

were city officials of Peerless Park up until its dissolution

(Lemonds was an alderman and Halbman was building

commissioner), and they were well aware of the state

proceedings. Indeed, Lemonds himself sponsored the bill to

hire an attorney for the city in the state court litigation and

~7 We note that this is not the same as creating a blanket exception for

procedural due process claims, a step we have expressly declined to take in

the past. See Goetzman, 91 F.3d at 1178; Postma v. First Fed. Sav. & Loan

of Sioux City, 74 F.3d 160, 162 n. 3 (8th Cir. 1996).

13a

received regular reports on the progress of the case. Yet, rather

than pursuing their claims before the state court, appellants

awaited that court’s adverse ruling before attempting to bring

their substantively identical challenges in federal district court.

This the Rooker-Feldman doctrine does not allow. See Long,

182 F.3d at 558.

Finally, we find no abuse of discretion in the district

court’s denial of leave to file a third amended complaint, as

appellees’ motion to dismiss based on the second amended

complaint was already fully briefed and under submission, and

granting further leave to amend would thus have imposed an

undue burden on appellees. See In re Milk Products Antitrust

Litigation, 195 F.3d 430, 438 (8th Cir. 1999), cert. denied sub

nom. Rainy Lake One Stop, Inc. v. Marigold Foods, Inc., 120

S. Ct. 1534 (U. S. Mar. 27, 2000); Fuller v. Secretary of

Defense, 30 F.3d 86, 89 (8th Cir. 1994) (standard of review).

The judgment is affirmed.

€

ry:

14a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

RICH LEMONDS, et al.,

)

Plaintiffs, )

vs. ) FILED

) OCT 15 1999

ST. LOUIS COUNTY, )

et al., ) Case No.

) 4:99CV00691 ERW

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court upon the Motions to

Dismiss plaintiffs’ Second Amended Complaint filed by

defendants and intervening defendants. [Documents #87 and

#93]. Plaintiffs claim in this action that the defendants, actions

in regards to the disincorporation of the city of Peerless Park

deprived them of due process, violated their equal protection

rights, and violated their rights under the First Amendment.

Defendants and intervening defendants claim that plaintiffs’

complaint fails to state a cause of action for which relief can be

granted for the following reasons: (1) the complaint is barred

by the doctrines of res judicata and collateral estoppel, because

plaintiffs’ complaint represents a collateral attack on a full and

final judgment in an action brought in the Missouri court

system and affirmed by the Missouri Court of Appeals; (2) this

Court lacks jurisdiction over this cause of action, because this

Court may not reverse the final judgment reached in the state

court system under the principles set forth by the Supreme

Court in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and

15a

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983); (3) the plaintiffs’ second amended complaint fails

to state a cause of action for which relief can be granted; and

(4) plaintiffs lack standing to assert the claims in their second

amended complaint. Considering all these arguments under the

facts of this case, the Court concludes that the Motions to

Dismiss should be granted.

I. STATEMENT OF GENERAL

AND RELEVANT FACTS.

Plaintiffs Rich Halbman and Rich Lemonds were residents

of the city of Peerless Park. On or about December 11, 1997,

eighteen registered voters of what was at that time the city of

Peerless Park signed a petition to disincorporate Peerless Park.

On March 19, 1998, the St. Louis County Council issued an

Order to disincorporate Peerless Park pursuant to Mo. Rev.

Stat. § 79.495, which provides as follows:

“Disincorporation without election allowed, when

— The county governing body of any county in which

a city of the fourth class is located shall have the

power to disincorporate such city upon petition of

two-thirds of the voters of such city, without an

election in such city, provided that the petition

requests disincorporation without an election, and

provided that the population of such city is less than

one hundred.”

Any resident who is registered to vote, but does not sign

the petition for disincorporation, is considered to be against the

Plaintiffs claim that Susan McCole and Mary Corbett,

alderpersons of Peerless Park, circulated the petition to at least

some of the residents of Peerless Park, but failed to present the

petition to all of the Peerless Park residents. Plaintiffs claim

that they presented the petition to the residents of only six of

16a

the ten homes in Peerless Park. Plaintiffs also claim that

McCole and Corbett did not notify opponents of the petition or

provide a voting registration cutoff date. Plaintiffs claim that

these actions prevented opponents of the petition from

registering and voting against, or being counted as votes

against, the petition to disincorporate Peerless Park. Plaintiffs

claim that they would have voted against the petition if they

had been registered voters, but the actions taken by the

individuals circulating the petition prevented them from

registering and voting against disincorporation. Plaintiffs claim

their -votes would have prevented the disincorporation of the

City.

Prior to entering the Order disincorporating Peerless Park,

the St. Louis County Council referred the petition to Hon. John

E. Bardgett, Jr. for a recommendation and report. Following an

evidentiary hearing held on January 29, 1998, Bardgett found

that the petition satisfied section 79.495. He submitted this

report to the County Council on or about March 3, 1998. The

Council based its March 19, 1998 Order to disincorporate

Peerless Park on Bardgett’s report.

Following the Council’s Order, Peerless Park, through its

mayor and two of its aldermen, filed a lawsuit in the Circuit

Court of the state of Missouri contesting this action, arguing

that the disincorporation was a “boundary change,” reviewable _

by the Boundary Commission, which would allow for an open

public election. The members of the County Council were

named as Respondents in- this action and the eighteen

intervening defendants in this matter intervened there as well.

The court upheld the jurisdiction of St. Louis County and

disincorporated the City. The Missouri Court of Appeals

upheld that decision on April 13, 1999. Its mandate issued May

5, 1999. Peerless Park has now been disincorporated and is a

part of St. Louis County.

17a

Il. STANDARDS GOVERNING MOTIONS TO DISMISS

A complaint shall not be dismissed for its failure to state

a claim upon which relief can be granted unless it appears

beyond a reasonable doubt that the plaintiff can prove no set of

facts in support of a claim entitling him or her to relief.

Breedlove v. Earthgrains Baking, 140 F.3d 797, 799 (8th Cir.

1998) (citing, inter alia, Conley v. Gibson, 355 U.S. 41, 45-46

(1957)). In addition, this Court must view the facts alleged in

the light most favorable to the plaintiff. Schuer_v. Rhode, 416

U.S. 232, 236 (1976). The issue is not whether the plaintiff will

ultimately prevail, but whether the plaintiff is entitled to present

evidence in support of his or her claim. Jd. Analyzing

plaintiffs’ claims under these standards, the Court concludes

that plaintiffs’ complaint fails to state a cause of action for

which relief can be granted for the reasons that follow.

III. PLAINTIFFS’ EQUAL PROTECTION

CLAIM FAILS AS A MATTER OF LAW

First, the Court finds that plaintiffs’ Equal Protection claim

fails as a matter of law, because a rational relationship exists

between the requirement that only registered voters, as opposed

to unregistered voters, are counted in determining whether a

city should be disincorporated and the Governmental interest in

efficiency and prevention of fraud. Courts have made clear that

“*TR]estrictions affecting the right to vote must cause a

discrimination of some substance before the compelling state

_ interest test is triggered.’” Coalition for Sensible and Humane

Solutions v. Wamser, 590 F. Supp. 217, 222 (E.D. Mo. 1984)

(quoting United States v. State of South Dakota, 636 F.2d 241,

244 (8th Cir. 1990)). As defendant St. Louis County notes,

plaintiffs have not been deprived of the right to vote in this

case, because section 79.495 allows for disincorporation

without an election. As the Supreme Court has noted, states

have ““broad powers to determine the conditions under which

A LR LORE TT

a tae ee ee ee

18a

the right to suffrage may be exercised.’”” Evans v. Cornman,

398 U.S. 419, 422 (1970) (quoting Lassiter v. Northhampton

Election Board, 360 U.S. 45, 50 (1959)). The Equal Protection

Clause comes into play “‘once the franchise is granted to the

electorate.” Jd. (citing Harper v. Virginia Board of Elections,

383 U.S. 663, 665 (1966)) (emphasis added). Under section

79.495, no election is required if two-thirds of the voters of a

city petition for disincorporation. Thus, the state did not grant

the franchise to the electorate in this case. Therefore, because

this case does not involve an election or voting rights, the Court

does not find that the “compelling interest” test applies to this

case.

Moreover, plaintiffs have not established that any alleged

voting restriction in this case causes discrimination of “some

substance.” Plaintiffs appear to argue that the procedure

utilized by those supporting the disincorporation of Peerless

Park discriminated against those opposing such disincorpora-

tion. In reality, however, the only residents not counted in the

determination of whether to disincorporate Peerless Park were

those residents who were not registered to vote. The Court does

not find any case law supporting the view that a restriction

limiting the right to be counted in a petition to disincorporate

solely to registered voters causes a discrimination of “some

substance.” Murrah v. State of Arkansas, 532 F.2d 105, 106

(8th Cir. 1976) (noting and citing several cases for the

proposition that it “has been uniformly held that persons not

registered to vote do not constitute a distinct and identifiable

group such that there has been an intentional, systematic

exclusion of a distinct class”); cf. Morgan v. City of Florissant,

147 F.3d 772, 773-74 (8th Cir. 1998) (noting difference in

voting jurisprudence between election laws providing for the

drawing and redrawing of state political subdivisions, which is

reviewed under a rational relationship test, and laws involving

the choice of legislative representatives or imposing restrictions

on voters based on characteristics such as wealth or race, which

is reviewed under the strict scrutiny test); Taxpayers United

19a

For Assessment Cuts v. Austin, 994 F.2d 291, 296 (6th Cir.

1993) (noting that while it is well settled that the right to vote

is a fundamental right, research does not “identify any decision

of the Supreme Court or a lower federal court holding that

signing a petition to initiate legislation is entitled to the same

protection as exercising the right to vote”).

This absence of such case law is not surprising, because if

such a “voting” restriction did amount to discrimination of

“some substance,” the Court believes that every election would

be open to challenge from unregistered voters who are

dissatisfied with the result. Plaintiffs have not demonstrated

that the voting restriction at issue here causes discrimination of

“some substance.” The right to vote in any election or other

procedure is only a “‘right to participate in elections on an

equal basis with other citizens in the jurisdiction. St. Louis

County, Mo. v. City of Town and Country, 590 F. Supp. 731,

737 (E.D. Mo. 1984). All unregistered voters, including

plaintiffs and any unregistered individuals who would have

favored disincorporation, were excluded from the calculation

of whether Peerless Park should be disincorporated. Thus, no

form of discrimination requiring strict scrutiny is present under

the facts of this case. Therefore, the rational basis test applies.

Because a rational basis exists between the consideration of

only registered voters and the Governmental interest in

efficiency and prevention of fraud, plaintiffs’ equal protection

claim fails as a matter of law.

IV. PLAINTIFFS’ DUE PROCESS CLAIM

FAILS AS A MATTER OF LAW.

For the same reasons set forth supra in Section III, the

Court concludes that plaintiffs, due process claim fails as a

matter of law. In addition, plaintiffs, due process claim fails as

a matter of law, because plaintiffs have not demonstrated that

Missouri law has created an interest sufficient to constitute a

“legitimate claim of entitlement” subject to protection under

20a

the due process clause under the facts of this case. See

Dobrovolny v., Moore, 126 F.3d 1111, 1113 (8th Cir. 1997)

(noting that right to state initiative process is a “right created by

state law,” which means that if certain procedures for

exercising such a right are not provided under the state law

creating the right, the parties arguing that a denial of such

procedures deprives them of due process “have no right or

interest which would entitle them to due process protection”).

For these reasons, plaintiffs’ due process claim fails as a matter

of law.

V. PLAINTIFFS’ FIRST AMENDMENT

CLAIM FAILS AS A MATTER OF LAW.

Plaintiffs have based their First Amendment claim on the

Supreme Court’s recent decision in Buckley v. American

Constitutional Law Foundation, 119 S. Ct, 636 (1999).

Plaintiffs argued that their First Amendment rights were

violated under the principles set forth in cases like Buckley,

because the individuals circulating the petition to

disincorporate Peerless Park secretly circulated the petition

only to those individuals who, like the circulators, were in favor

of disincorporation.

Under the facts of this case, however, it is clear that

plaintiffs’ First Amendment rights have not been impinged by

any governmental action in this matter. As the Court noted

supra in Section III, the consideration of the signatures of only

those individuals who are registered to vote is reasonably

related to the goals of efficiency and fairness in determining

whether a fourth-class city should or should not be

disincorporated. The principles set forth in Buckley do not lead

the Court to a contrary finding and plaintiffs have not directed

the Court to any other law supporting their claims. Buckley

involved Colorado statutes placing restrictions on petition

circulators. In the present case, however, no restrictions were

placed on any petition circulators by any Missouri law.

2la

Plaintiffs have not directed the Court to any governmental

action in this case that limited their First Amendment rights.

Plaintiffs could have distributed their own petitions or other

anti-disincorporation propaganda to opponents or proponents

of the disincorporation of Peerless Park, regardless of their

status as unregistered voters. Therefore, Buckley and Meyer v.

Grant, 486 U.S. 414 (1988), another case discussing state

restrictions on petition circulators, do not apply to the facts of

this case. 7

While plaintiffs argue that the petition was only circulated

to individuals who wished to disincorporate Peerless Park,

which prevented unregistered opponents of the disincorporation

from registering and being counted against disincorporation,

such selective circulation of a petition is acceptable under the

First Amendment. In fact, in arguing against such selective

circulation, it is plaintiffs, not defendants, who argue in favor

of a restriction on the First Amendment rights of petition

circulators. A requirement that all petition circulators present

the petition to their opponents would inhibit the freedom of the

circulators to engage in one-on-one association with those who

share their same goals and ideals. In addition, the additional

time and resources required to present petitions to all potential

opponents of disincorporation would limit the number of

individuals capable of circulating petitions in the manner

desired by plaintiff. Therefore, such a restriction would, like the

restrictions at issue in Buckley and Meyer, reduce the-number

of voices who could convey the messages of the proponents

and opponents of disincorporation. For these reasons, the Court

finds that plaintiffs’ First Amendment claims fail as a matter of

law and should be dismissed.

22a

VI. CONCLUSION.

For the reasons set forth in this Memorandum and Order,

the Court finds that plaintiffs’ claims fail as a matter of law and

shall be dismissed.’

Accordingly,

IT is HEREBY ORDERED that the Motions to Dismiss

filed by both defendant and the intervenor defendants

[Documents #87 and #93] are GRANTED; and

IT IS FURTHER ORDERED that all other pending

motions are DENIED as moot.

An appropriate judgment shall accompany this

memorandum and order.

Dated this 15th day of October, 1999.

E. Richard Webber

United States District Judge

! Because the Court has concluded that plaintiffs’ claims fail as a matter

of law for the reasons set forth in this memorandum and order, no further

discussion of defendants’ other claims supporting dismissal is indicated.

However, the Court believes that if plaintiffs’ claims did not fail as a matter

of law for the reasons set forth supra., this Court would lack jurisdiction

over plaintiffs’ claims under the principles set forth by the Supreme Court

in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), because

granting the relief requested by plaintiffs would require this Court to

“effectively reverse the state court decision” and “void its holding.” Snider

v. City of Excelsior Springs, Missouri, 154 F.3d 809, 811 (8th Cir. 1998).

In the proceedings that took place in the Missouri court system, the Missouri

courts upheld the disincorporation of Peerless Park, noted that there was “no

constitutional right to vote on disincorporation of a fourth class city,” and

even found that plaintiff Rich Lemonds was “not a voter” under Missouri

law. The Court believes that granting plaintiffs the relief they seek would

reverse these decisions made by the Missouri state courts. The Court

believes the Rooker-Feldman doctrine cautions the Court against granting

such relief.

23a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

RICH LEMONDS, et al.,

Plaintiffs,

)

) FILED

) OCT 15 1999

)

Vs.

ST. LOUIS COUNTY,

et al., Case No.

4:99CV00691 ERW

Defendants.

JUDGMENT

In accordance with the Memorandum and Order of this

Court, which was filed on this date and incorporated herein,

IT IS HEREBY ORDERED, ADJUDGED and

DECREED that all of plaintiffs’ claims against defendants are

dismissed with prejudice.

Dated this 15th day of October, 1999.

_ls/_

E. Richard Webber

United States District Judge

24a

APPENDIX C

IN THE CIRCUIT COURT

OF THE COUNTY OF ST. LOUIS

STATE OF MISSOURI

STATE ex rel. CITY OF )

PEERLESS PARK, )

MISSOURI, et al., )

)

Relators, )

VS. ) Cause No. 98CC 1146

)

ROBERT D. YOUNG, ) Division No. 39

et al., )

)

Respondents. )

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Findings of Fact

1. All of the records and proceedings of the St. Louis

County Council (“County Council”) In the Matter of

Disincorporation of the City of Peerless Park, as fully and

entirely as they remain among the records, papers and files of

said County Council, have been filed with this court by

Respondents in obedience to the Writ of Certiorari.

2. The City of Peerless Park is a fourth class city located

in St. Louis County, Missouri.

A. On June 11, 1990 the Board of Trustees of the Village

of Peerless Park duly enacted Ordinance 9-1990 providing for

the holding of an election to be held in the Village of Peerless

Park at the time of the holding of the primary election on

25a

August 7, 1990 for the purpose of submitting to the qualified

electors of said village a proposal to change the classification

of the village of Peerless Park from that of a village to that of

a fourth class city.

B. A Special Election was held on August 7, 1990 in

which a majority of the voters of the Village of Peerless Park

voted in favor of the proposition to become a fourth class city.

C. Relators admitted in the Petition for Writ of Certiorari

filed with this court on April 7, 1998 that Peerless Park is a

fourth class city.

D. At the proceedings before County Council, Peerless

Park admitted that it was a fourth class city.

3. Respondent St. Louis County is a charter county of the

first class and the individual respondents are councilmen of St.

Louis County, acting in their representative capacity.

Intervenors are residents and qualified voters of Peerless Park

who signed the Petition to Disincorporate Peerless Park.

4. On the 19th day of March, 1998 the County Council

adopted an order disincorporating the City of Peerless Park,

pursuant to Section 79.495 R.S.Mo. effective May 1, 1998, and

provided the Council shall appoint a trustee, pursuant to

Section 79.510 R.S.Mo. prior to May 1, 1998. A copy of the

order is attached to the Petition as Plaintiff s Exhibit 1.

5. The City of Peerless Park has, and at all relevant times

herein has had, a population of less than 100.

6. On December 10, 1997, Intervenors Mary Corbett and

Susan McCole prepared a Petition for Disincorporation of

Peerless Park.

7. On December 10, 1997, the Petition that had been

prepared by Corbett and McCole was signed by them and

sixteen other persons.

26a

8. On December 10, 1997, McCole witnessed each and

every person executing the Petition.

9. All eighteen persons who signed the petition on

December 10, 1997, did so voluntarily and in the presence of

McCole, and knew that they were asking the County Council to

disincorporate the City of Peerless Park without an election.

10. All eighteen persons who signed the petition on

December 10, 1997 resided in Peerless Park at the addresses

listed on the Petition and were registered voters of Peerless

Park. 5B

11. On the morning of December 11, 1997, Susan McCole

went to the St. Louis County Board of Election Commissioners,

where she executed an affidavit attesting that she witnessed and

collected the signatures, and had the affidavit notarized.

12. On December 11, 1997, Susan McCole and others filed

the Petition (with eighteen signatures) with the St. Louis

County Council.

13. The Petition was signed by two-thirds of the legal

voters of the City of Peerless Park.

A. On December 11, 1997, there were 30 persons shown

on the Board of Election Commissioners list of “Active

Registered Voters”; ‘ :

B. Three of the thirty persons shown on the Board of

Election Commissioners list did not reside in the City of

Peerless Park on December 11, 1997, or any time thereafter:

Paula C. Benz, Kenneth J. Otzenberger, and Bernard J.

Otzenberger;

C. On December 11, 1997, there were 7 persons shown on

the Board of Election Commissioners list of “Inactive Prior

Registrants.” Those inactive prior registrants were not residents

of Peerless Park on December 11, 1997 and thus did not have

27a

a right to vote in Peerless Park on December 1, 1997;

D. Richard Lemmonds was not registered as a voter of

Peerless Park on December 11, 1997 and thus did not have a

right to vote in Peerless Park on December 11, 1997.

E. On December 11, 1997, there were 27 legal voters of the

City of Peerless Park (i.e., 30 less three).

F. The Petition was signed by eighteen registered voters

and residents of Peerless Park, all of whom had a right to vote

in Peerless Park on December 11, 1997.

14. Eighteen of twenty-seven voters constitute two-thirds

of the voters of Peerless Park as of December 11, 1997.

15. The disincorporation of Peerless Park would result in

a transfer of jurisdiction between what is now the City of

Peerless Park, a municipality, and St. Louis County, but would

not result in a municipality.

16. County Council provided Relators with actual notice

of the Petition to Disincorporate and allowed Relators to fully

participate in the proceedings before it.

Conclusions of Law

1. The disincorporation of Peerless Park is not a

“boundary change” as that term is used in Section 72.400(1)

R.S.Mo. Therefore, the Boundary Commission Law, sections

72.400 et seg. R.S.Mo. does not apply.

2. County Council has jurisdiction to disincorporate

Peerless Park pursuant to Section 79.495 R.S.Mo. The power

of the legislature to disincorporate cities is practically

unlimited. Jn re the City of Kinloch, 242 S.W. 2d 59 (Mo. 195

1) The County Council has been given authority by Section

79.495 R.S.Mo. to act as the legislative agent to abolish fourth

class cities with a population less than 100 upon petition of

28a

two-thirds of the voters of such city, without an election. Jd.

3. Because relators have no “life, liberty or property”

interest in the continued existence of Peerless Park, Hunter v.

City of Pittsburgh, 207 U.S. 161, 52 L. Ed. 151, 28 S. Ct. 40

(1907), there is no constitutional right to notice or a hearing.

State law provides, and Relators received, more process than

Relators were due. There is no constitutional right to vote on

disincorporation of a fourth class city.

4. Peerless Park is a fourth class city. The Special Election

of August 7, 1990 complied with the notice requirements of

Chapter 115 R.S.Mo. and was thus valid. Chapter 115 governs

all public elections in the state, except elections for which

ownership of real property is required for voting. The

requirement of Section 72.070 R.S.Mo. that the election to

become a fourth class city be held not more than 30 days after

the Ordinance for holding the election is passed is in direct

conflict with Section 115.125 R.S.Mo. Statutes are to be

construed together and harmonized if possible. O'Flaherty v.

State Tax Commission of Missouri, 680 S.W.2D 2d 153, 155

(Mo. Banc 1984). However, when one statute deals with a

subject in a particular way, and a second statute deals with the

same subject in a more detailed way, the more general yields to

the more specific. Id. at 154. The legislature, through the

“Comprehensive Election Act of 1977,” (“Chapter 115")

sought to “simplify, clarify and harmonize the laws governing

elections.” Section 115.003 R.S.Mo. Chapter 115 is the more

specific of the two statutes and governs when. all elections,

including an election to become a fourth class city, may be

held.

Finally, even if the notice for the election had been legally

defective, the election result cannot be collaterally attacked

eight years later. Defective notice of an election can only be

litigated by an election contest brought within the time allowed

by Chapter 115 R.S.Mo. “The wording of a proposition on a

29a

ballot and the propriety of the notice of election provided are

issues cognizable only in an election contest.” (Emphasis

added.) Beatty v. Metropolitan St. Louis Sewer Dist., 700

- §.W.2d 831, 838 (Mo. Banc 1985), followed in State v. County

Com'n of Johnson County, 918 SW.2d 252, 255 (Mo. Banc

1996) and McCollum v. Director of Revenue, 906 SW.2d 368,

369 (Mo. Banc 1995).

5. The Petition to Disincorporate was signed by two-thirds

of the legal voters of Peerless Park. A “voter” is defined by

Missouri law as “registered voter, or legal voter.” Section 1.035

R.S.Mo. A person who is otherwise qualified but not registered

is not a voter, State ex rel. Socialist Workers’ Party of Missouri

v. Kirkpatrick, 513 S.W.2d 346 (Mo. 1974). A person who is

registered but not eligible is not a voter, Art. VIII, §2, Mo.

Const., § 115.135 R.S.Mo., Marre v. Reed, 775 SW.2d 951

(Mo. banc 1989). A person who is not a “resident” of a city i is

not a legal voter in the city. Jd.

John Asberry’s signature on the Petition to Disincorporate

is valid. The sworn testimony at the proceedings before County

Council, which was uncontroverted, establishes that on

December 10, 1997 (the date he signed the Petition to

Disincorporate), John Asberry resided at 2 Thornhedge Drive

in Peerless Park, the address he listed on the Petition. The

Affidavit of Richard Ward does not raise an issue of material

fact as to where John Asberry resided on December 10. At

most, the Affidavit raises an issue as to where John Asberry

resided in November 1997, which is not a material fact. On the

date John Asberry signed the Petition, his residence was the

address he listed on the Petition and he was a legal voter of the

City of Peerless Park.

Richard Lemmonds is not a legal voter because he was not

registered to vote in Peerless Park on December 11, 1997. A

person who is otherwise qualified but not registered is not a

voter. Scott v. Kirkpatrick, $13 S.W.2d 442 (Mo.banc 1974). A

saionn whe does nat saghner to vate by clos of buslaees on thn

30a

fourth Wednesday prior to an election is not entitled to vote in

that election. Section 115.135 R.S.Mo. The essence of Scott is

that a person must be legally entitled to vote on the measure

proposed by a petition on the day that he signs it. Persons who

fail to register to vote before a petition is circulated are not

legal voters.

Kenneth Otzenberger is not a legal voter because he was

not a resident of Peerless Park on December 11, 1997. His

affidavit, which asks the County Board of Election

Commissioners to remove him from the rolls and recites that he

doesn’t live in Peerless Park and hasn’t for more than six

months and doesn’t intend to in the future, is sufficient to

establish that he abandoned his residence in Peerless Park with

the intent of establishing a new residence elsewhere before

December 11, 1997.

6. The form of the Petition to Disincorporate complies

with the requirements of Section 79.495 R.S.Mo. The

provisions of Sections 115.019 and 115.700 R.S.Mo. do-not

apply to petitions to disincorporate a fourth class city without

an election. By their terms, the above sections apply to petitions

for “local issues” as discussed elsewhere in Chapter 115, i.e.

elections. Even if the above sections apply, the failure to

include a column for “date signed” is merely a technical error

which does not effect the sufficiency of the Petition.

7. County Council had authority under Section 79.495

R.S.Mo. to determine the number of “voters of such city.” The

list of registered voters from the Board of Election

Commissioners was evidence on this subject, but not

conclusive or unimpeachable as against the substantial

evidence showing that some persons on-the voter rolls were

not, in fact, residents of the city and thus not voters “of the

city.” Kinloch, supra, at 65.

3la

Because the determined facts meet with the requirements

of Section 79.495 R.S.Mo. the statute is mandatory in

effectuating the legislative will. Id. Therefore, the Order of

County Council disincorporating Peerless Park is hereby

affirmed.

SO ORDERED:

s/ Patrick Clifford, Jud

6/15/98

32a

IN THE CIRCUIT COURT

OF THE COUNTY OF ST. LOUIS

STATE OF MISSOURI

STATE ex rel. CITY OF

PEERLESS PARK,

MISSOURI, et al.,

)

Relators, )

vs. ) Cause No. 98CC 1146

)

ROBERT D. YOUNG,

et al.,

Division No. 39

Respondents.

JUDGMENT

In this action, relators seek a Writ of Certiorari and a

judgment reversing the order of the St. Louis County Council

(“County Council”) disincorporating the City of Peerless Park.

This matter is before the Court on Intervenors’ Motion for

Summary Judgment and Respondents’ Motion for Summary

Judgment. The Court has heard argument of counsel and has

reviewed the motions, responses and memoranda of law

submitted by the parties.

The court finds that Intervenors’ Motion for Summary —

Judgment and Respondents’ Motion for Summary Judgment

and Relators’ Responses thereto show that there is no genuine

issue as to any material fact and that Intervenors and

Respondents are entitled to judgment as a matter of law.

Pursuant to the Findings of Fact and Conclusions of Law

filed herewith, the Court hereby enters judgment in favor of

Intervenors and Respondents and against Relators. Costs taxed

against Relators.

33a

SO ORDERED:

s/ Patrick Clifford, Jud

6/15/98

34a

APPENDIX D

COURT OF APPEALS OF MISSOURI

EASTERN DISTRICT, DIVISION TWO

April 13, 1999, Filed

98 S.W.2d 142

STATE OF MISSOURI

EX REL. CITY OF

PEERLESS PARK, et al.,

Realtors/Appellants,

v. No. ED74704

ROBERT D. YOUNG, et al.,

Respondents,

and

DONNA ASBERRY, et al.,

ee a i a a a a a a ey A ee e_

—Intervenors.

Before: James R. Dowd, P.J., Lawrence G. Crahan, J.,

& Richard B. Teitelman, J.

ait 35a

OPINION

ORDER PER CURIAM.

The City of Peerless Park, the city’s mayor, and two of its

aldermen (collectively, “Appellants”) appeal from the summary

judgment entered by the Circuit Court of St. Louis County

affirming the action of the St. Louis County Council

disincorporating the City of Peerless Park pursuant to Section

79.495, RSMo 1994. Appellants argue that pursuant to Section

72.400(2), the disincorporation of a city is a boundary change

and is subject to the provisions of the Boundary Commission

Law and that disincorporation pursuant to Section 79.495

RSMo is therefore erroneous.

We have reviewed the briefs of the parties and the record

on appeal and find no error of law. No precedential or

jurisprudential purpose would be served by an extended

opinion. The judgment is affirmed pursuant to Rule 84.16(b).

-_—

36a

APPENDIX E

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_ No. 99-3007EMSL

Rich Lemonds, et al., ss e.

. ORDER

Appellants, ‘ DENYING

? PETITION FOR

v. ° REHEARING

° AND FOR

St. Louis County, et al., & REHEARING

PPS . EN BANC

Appellees.

The petition for rehearing en banc is denied. The petition

for rehearing by the panel is also denied.

(5128-010199)

September 18, 2000

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

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