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October 19, 1981


The opinion of the court was delivered by: Marshall, District Judge.


Plaintiffs have brought these consolidated actions under 42 U.S.C. § 1983 (1976) alleging that defendants deprived plaintiffs of their constitutional rights when defendants dismissed plaintiffs as employees of the State's Attorney for Cook County, Illinois. Defendants are State's Attorney Richard M. Daley and his First Assistant, Richard Devine, and the County of Cook. This court has jurisdiction under 28 U.S.C. § 1343(3) (1976).

In 81 C 1512, plaintiff John Gannon alleges that he was first demoted from supervisor of clerical personnel in the State's Attorney's office to file clerk, and then dismissed, solely because of his political affiliation. Mr. Gannon alleges that he is a registered Republican, and that his dismissal was the result of a patronage system implemented by State's Attorney Daley, who is a Democrat, subsequent to Daley's election as State's Attorney, in violation of the first amendment.

In 81 C 2127, plaintiff Victoria Sierra alleges that she supported the re-election of the Republican State's Attorney, Bernard Carey, who was defeated by defendant Daley. She alleges that she was dismissed by defendants from her position as an administrative assistant in the State's Attorney's office solely because she had supported Mr. Carey, in violation of her first amendment rights.

In 81 C 2128 and 81 C 3519, plaintiffs Wesley Spraggins and Oscar Nieves make allegations similar to those made by Ms. Sierra with respect to their dismissal as an administrative assistant in the State's Attorney's office.

Defendants have moved to dismiss the complaints on the ground that the claims plaintiffs assert are precluded by a final consent judgment entered on April 3, 1978, and amended on January 20, 1981, in Shakman v. Democratic Organization of Cook County, No. 69 C 2145 (N.D.Ill.). The Shakman case involved allegations that the constitutional rights of voters and candidates in Cook County had been violated by a systematic use of patronage to discourage political opposition to the Regular Democratic Organization in Cook County.*fn1 In that case, Judge Nicholas Bua of this court held that the challenged practices violated the first and fourteenth amendment rights of the plaintiff class of candidates and voters. See Shakman v. Democratic Organization of Cook County, 481 F. Supp. 1315 (N.D.Ill. 1979). A consent judgment was entered on April 3, 1978, which enjoined the firing of employees on political grounds from portions of the State's Attorney's office. On January 20, 1981, a further consent judgment was entered which enjoined political hiring and established which positions in the office were exempt from the court's holding.

The 1981 judgment permits political firings from the exempt positions. Plaintiffs occupied exempt positions, and therefore their dismissal, even if done on purely political grounds as retaliation for the exercise of first amendment rights, is permitted under the 1981 judgment.

Defendants argue that the 1981 judgment precludes plaintiffs from pursuing their claims in this action. They point out that plaintiffs are concededly members of the plaintiff class of voters in Shakman, and therefore are bound by the court's judgment in that case.

In order to assess defendants' position, it is necessary to analyze the preclusive effects of the Shakman judgment under the doctrines of res judicata and collateral estoppel. The parties have not always indicated upon which doctrine they rely. The difference between res judicata and collateral estoppel is essentially the difference between preclusion of claims and issues. A given judgment will have two kinds of preclusive effects. Res judicata precludes the same claim or cause of action from being asserted in subsequent litigation between the parties, while collateral estoppel precludes relitigation of those issues which were adjudicated in the earlier judgment when raised in a different cause of action between the parties. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955).

Under res judicata or claim preclusion, a prior judgment will bar the identical cause of action from being relitigated. Harper Plastics, Inc. v. Amoco Chemical Corp., 657 F.2d 939, 945 (7th Cir. 1981). Under res judicata "the judgment operates as a bar, prevents relitigation of all grounds for, or defenses to, recovery that were then available to the parties before the particular court rendering the judgment, in relation to the same claim — regardless of whether all grounds for recovery or defenses were judicially determined." 1B J. Moore & T. Currier, Moore's Federal Practice § 0.405 at 622 (2d ed. 1980). Res judicata applies to more than simply those issues which were litigated and adjudicated in the prior case. It operates to bar all claims which might have been made by the parties in the earlier case. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1949); Morris v. Jones, 329 U.S. 545, 552, 67 S.Ct. 451, 456, 91 L.Ed. 488 (1947); Harper Plastics, Inc. v. Amoco Chemicals Corp., supra at 7-8; Murphy v. Landsburg, 490 F.2d 319, 322 (3d Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1941, 40 L.Ed.2d 289 (1974). However, res judicata does not preclude separate or different claims from being brought. FSLIC v. Szarabajka, 330 F. Supp. 1202, 1207 (N.D.Ill. 1971).

The pivotal question in this case is whether the claim plaintiffs present is part of the same cause of action that was asserted in Shakman. If plaintiffs' claim is one that could have been litigated in Shakman, then it is precluded by the 1981 judgment. Here plaintiffs assert a first amendment right not to be fired for political reasons. See generally Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). A careful examination of Shakman reveals that this claim was not, and could not have been presented there.

Shakman did not involve claims by governmental employees regarding unconstitutional hirings and firings. The Seventh Circuit observed, "[p]laintiffs are asserting that the practice causes injury to their interests as candidates and voters. . . ." Shakman v. Democratic Organization of Cook County, 435 F.2d 267, 269 (7th Cir. 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1383, 28 L.Ed.2d 650 (1971). Plaintiffs in Shakman asserted that the patronage system practiced by defendants interfered with the rights of Cook County candidates and voters to participate in fair and nondiscriminatory elections. See 481 F. Supp. at 1344-49. See also id. at 1355 ("The court holds that the plaintiffs have a right to an electoral process free from deliberate governmental discrimination against their views."). Liability in Shakman was predicated not on the rights of governmental employees not to be fired in retaliation for their political beliefs and activities, but rather on the rights of candidates and voters to be free of a patronage system which undermined the fairness of the electoral process in Cook County. The cause of action in Shakman involved the effect of the patronage system on elections in Cook County. Here a much different set of issues and facts must be litigated. To decide this case, this court need not allow relitigation of the effect of patronage on the electoral process. It need only determine whether plaintiffs were fired for impermissible reasons. A much different cause of action is presented than the claim made in Shakman.

Not only was this cause of action not presented in Shakman, but it could not have been presented by the plaintiffs in that case even had they wished to assert it. The Shakman plaintiffs, as voters and candidates, lacked standing to assert the rights of public employees which are at issue here. Shakman plaintiffs were not allowed to assert their own rights and not those claims held by public employees. See 481 F. Supp. at 1324 n. 3. Judge Bua clearly held that no claim could be presented on behalf of the public employees in Cook County to be free of unconstitutional hirings and firings:

  The plaintiff class in this case was not certified
  as a class of government employees or applicants
  for government jobs. There has been no showing
  that the plaintiffs represent such government
  employees and applicants, or that the employees
  and applicants are for some reason unable or
  unlikely to bring suit themselves. Accordingly,
  the court must conclude that the plaintiffs are
  not proper parties for a challenge of patronage
  hiring and promotion practices as they affect
  employees and applicants. Instead, the defendants'
  conduct must be analyzed solely under the Seventh

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