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