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November 10, 1982


The opinion of the court was delivered by: William T. Hart, District Judge.


On the eve of trial of this old, complex, and hard-fought case, all of the defendants filed a joint motion for summary judgment.*fn2 They have submitted legal memoranda in support of their motion, with no accompanying affidavits. The plaintiffs have opposed the motion with their own legal memorandum, also unsupported by affidavit.

The Court has considered the filings, and because of the inadequacy of the briefs has done extensive research on its own. For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part.

I. Background

The parties are at issue on plaintiffs' Third Amended Complaint, filed on April 10, 1979. The plaintiffs are ten individuals and a labor union, Local 1006 of the American Federation of State, County and Municipal Employees, AFL-CIO ("Local 1006"). The defendants include two groups: (1) seven individuals plus an international labor union, The American Federation of State, County, and Municipal Employees, AFL-CIO ("the International Union") (This first group is usually referred to as "the union defendants.")*fn3; and (2) seven individuals who were employees or agents of the State of Illinois at the time of the events complained of in this action ("the state defendants"). The focus of the plaintiffs' action concerns the relationships in 1975-1976 among these three groups.

This single count Third Amended Complaint has been brought pursuant to the following statutes: 42 U.S.C. § 501-504, 1981, 1983, 1985(3), and 2000d. The plaintiffs also claim to be suing under the First, Fifth, and Fourteenth Amendments to the United States Constitution. They allege numerous facts and legal theories as grounds for recovery. Fed.R.Civ.P. 10(b) states in relevant part: "Each claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matter set forth." Unfortunately, Rule 10(b) has not been followed here. It would have been an aid to counsel and to the Court had this rule been observed.

Nevertheless, the Court has studied the Third Amended Complaint and finds the gist to be as follows. Many of the members of Local 1006 were state employees working for the Illinois Bureau of Employment Security during the relevant period. The plaintiffs voiced numerous complaints to federal and state officials reflecting their beliefs that certain practices and procedures at the Bureau of Employment Security were in violation of federal law. Meanwhile, the relationships between and among the state, the International Union, and Local 1006 grew increasingly tense.

These growing tensions culminated in a strike by Local 1006 on July 7, 1976. On July 28, 1976, about 300 striking employees were suspended pending discharge by the State of Illinois. As part of a deal struck by the state and the International Union, most of those suspended were rehired a few months later, but some thirty-three employees, including the individual plaintiffs in this action, were discharged.[fn3a]

Sometime prior to the strike, the state had declined to recognize Local 1006 as the bargaining representative for the employees in the Bureau of Employment Security, and instead gave such recognition to the International Union. On July 28, 1976 — the same day the state began discharge proceedings against the striking employees — the International Union imposed an administratorship on Local 1006 and replaced the leaders of Local 1006 with persons of the International's choosing. The plaintiffs allege a complex conspiracy between the state defendants and the union defendants to abridge in various ways the plaintiffs' statutory and constitutional rights.

The Court believes that three basic grievances are alleged: (1) the individual plaintiffs were discharged from their employment due to the unlawful actions of the defendants; (2) the defendants, or at least some of them, were instrumental in the unlawful and improper refusal to recognize Local 1006 as the bargaining representative of its members; and (3) the union defendants, in concern with the state defendants, improperly imposed an administratorship on Local 1006, thereby stripping it of its power and its members of their political voices.

The defendants now argue that all these matters have been fully adjudicated to conclusion in other proceedings. First, the Illinois Civil Service Commission had hearings as to the propriety of the discharges of certain members of Local 1006, and the decisions were appealed to final judgments in the Circuit Court of Cook County and the Illinois Appellate Court. Second, the Illinois Office of Collective Bargaining held administrative hearings on the question of the certification of Local 1006 as the bargaining representative for numerous state employees. Finally, the propriety of the International Union's imposing an administratorship on Local 1006 was fully adjudicated before the Judicial Panel of the International Union itself.

The thrust of defendants' motion for summary judgment is that the principles of res judicata and collateral estoppel, as most recently articulated in Lee v. City of Peoria, 685 F.2d 196 (7th Cir. 1982), clearly entitle them to summary judgment on plaintiff's Third Amended Complaint.

II. Res Judicata

The defendants are correct that Lee v. City of Peoria and certain other recent cases hold that the principles of res judicata and collateral estoppel are to be applied to claims arising under the civil rights laws and the United States Constitution. Lee v. City of Peoria decided that these principles apply to actions brought under 42 U.S.C. § 1981, 1983, and 1985. Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), held that these principles are applicable to Title VII actions. In recent years the Supreme Court has shown its approval of the application of res judicata and collateral estoppel to nearly all claims. Kremer, supra; see also Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).

This does not merely reflect a general philosophy of comity or even just plain good sense. Congress has embodied the principles of res judicata and collateral estoppel in 28 U.S.C. § 1738, which states in relevant part:

  The . . . judicial proceedings of any court of any
  such State . . . shall have the same full faith
  and credit in every court within the United
  States . . .  as they have by law or usage in the
  courts of such States . . .

The Supreme Court recently said that "though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so." Allen v. McCurry, 449 U.S. at 96, 101 S.Ct. at 415. This Court is bound by statute to apply these principles where appropriate.

The applicable standards have been clearly set forth in Lee v. City of Peoria, supra at 199:

  The doctrine of res judicata is that a final judgment
  on the merits in a court of competent jurisdiction
  bars the same parties or their privies from
  relitigating not only the issues which were in fact
  raised and decided but also all other issues which
  could have been raised in the prior action. Cromwell
  v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877);
  Morris v. Union Oil Co. of California, 96 Ill. App.3d 148,
  51 Ill.Dec. 770, 421 N.E.2d 278 (1981). The
  essential elements of the doctrine are generally
  stated to be: (1) a final judgment on the merits in
  an earlier action; (2) an identity of the cause of
  action in both the earlier and the later suit; and
  (3) an identity of parties or their privies in the
  two suits.

As stated above, the defendants argue that three prior adjudications correspond to the three causes of action which they find in the Third Amended Complaint, and that under the principles of res judicata and collateral estoppel the instant action is barred. The Court will address each argument in turn.

A. The Discharges

Defendants argue that the propriety of these plaintiffs' discharges has been adjudicated through the administrative process and brought to final judgment in the courts. See Strobeck v. Illinois Civil Service Commission, 70 Ill.App.3d 772, 26 Ill.Dec. 911, 388 N.E.2d 912 (1st Dist. 1979); and Battle v. Illinois Civil Service Commission, 78 Ill.App.3d 828, 33 Ill.Dec. 597, 396 N.E.2d 1321 (1st Dist. 1979). If these adjudications are to bar even part of the Third Amended Complaint, the essential elements as set forth in Lee v. City of Peoria must be satisfied.

1. Identity of Parties or Their Privies in the Two Suits

a. The Defendants

The Court first looks to whether the defendants in the prior action and the instant action are the same. The Illinois Department of Labor, through Donald Johnson,*fn4 an employee of the Department, was the petitioner in both actions before the Illinois Civil Service Commission. The defendants before the circuit court and the appellate court in both Battle and Strobeck included the Illinois Civil Service Commission and the Illinois Department of Labor, both state entities. All of the state defendants in the instant action have been sued in their representative capacities as employees and/or agents of the state government. Therefore, the state defendants here may properly claim to be in privity with the state defendants in the earlier actions. Sunshine Anthracite Coal v. Adkins, 310 U.S. 381, 402-3, 60 S.Ct. 907, 916, 84 L.Ed. 1263 (1940) ("There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the same government."); Church of New Song v. Establishment of Religion on Taxpayers' Money, 620 F.2d 648, 654 (7th Cir. 1980), cert. denied sub nom. Theriault v. Establishment of Religion on Taxpayers' Money, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981) (first and second suits brought against different employees of the federal bureau of prisons; defendants in both suits are in privity and therefore second defendants are able to assert res judicata as a bar); Lee v. City of Peoria, supra, at 199 n. 4; Lambert v. Conrad, 536 F.2d 1183, 1186 (7th Cir. 1976).*fn5

b. The Plaintiffs

Five of the twenty-three named plaintiffs in Battle, supra, are named plaintiffs in the instant action. Therefore, the defense of res judicata clearly may be asserted against these five plaintiffs (Byrnes, Hershberger, Rothman, Widlic, and Calliouet), since they are the identical parties as those in the previous action. Furthermore, the single plaintiff in Strobeck is also a plaintiff in the instant action and res judicata may be asserted against him as well.

The defendants also argue that the four plaintiffs in this action who were not plaintiffs in either Battle or Strobeck (Jenkins, Doliber, Peters, and Kish) are privies of the Battle and Strobeck plaintiffs, and therefore the claims of these four plaintiffs also may be barred by the principles of res judicata. This argument is devoid of merit and has absolutely no support whatsoever in the law.

These four plaintiffs are raising their individual statutory and constitutional claims which have never before even been presented to any tribunal, much less adjudicated on the merits to a conclusion. The basis for their claims here is that they were discharged in retaliation for their exercise of First Amendment rights, and/or for racially discriminatory reasons. It is inconceivable that they would be barred from raising their personal individual claims to freedom of speech and association, and the right to be free of discharge motivated by racial animus, because their present co-plaintiffs have received full adjudications on similar claims.

In support of their argument, which the Court believes to be frivolous,*fn6 the defendants cite Chasteen v. Trans World Airlines, 397 F. Supp. 269 (W.D.Mo. 1974), aff'd 520 F.2d 714 (8th Cir. 1975) (per curiam). Defendants have argued that Chasteen should be applied to the instant case because it stands for the proposition that "plaintiffs need not be identical provided only that the rights of the plaintiff in the second cause are derivative of the rights of the named plaintiffs in the original administrative or judicial proceeding" (Brief in Support of Motion for Summary Judgment, at 3).

A reading of Chasteen does show that the bar of res judicata may be asserted against a plaintiff whose rights are derivative of a plaintiff in an earlier action. In Chasteen, Mojet Corporation had been the defendant in a state court condemnation proceeding brought by the City of Kansas City, Missouri. Keith Chasteen, the transferee of Mojet Corporation, attempted to relitigate as plaintiff in the federal action the propriety of the condemnation proceeding. The district court, affirmed by the United States Court of Appeals for the Eighth Circuit, found that res judicata was a bar to Chasteen. Chasteen's rights truly were derivative of Mojet's since he was Mojet's transferee.

The defendants have failed to explain how Chasteen is even arguably applicable to the instant case. The six plaintiffs who were parties in Strobeck and Battle have not transferred their rights under the civil rights laws and the United States Constitution to the four plaintiffs in this action who did not participate in the other cases. And these four plaintiffs cannot be said to have derived their rights from their co-plaintiffs. Merely stating the argument shows its absurdity.

A number of cases from this circuit and others — none of which have been mentioned by defendants — have considered the circumstances under which privity exists among plaintiffs for purposes of res judicata. Without exception, these cases hold that privity exists when assets and property rights are transferred. See American Equipment Corp. v. Wikomi Manufacturing Co., 630 F.2d 544 (7th Cir. 1980) (assets of Wikomi I, a Delaware corporation, assigned to Wikomi II, a Missouri corporation; privity exists between the corporations); Schnitger v. Canoga Electronics Corp., 462 F.2d 628 (9th Cir. 1972) (per curiam) (purchase of property creates privity); Brunswick Corp. v. Chrysler Corp., 408 F.2d 335 (7th Cir. 1969) (sale of relevant business creates privity); J.R. Clark Co. v. Jones & Laughlin Steel Corp., 288 F.2d 279 (7th Cir.), cert. denied, 368 U.S. 828, 82 S.Ct. 49, 7 L.Ed.2d 32 (1961) (sale of relevant assets creates privity). Cf. Bloomer Shippers Association v. Illinois Central Gulf Railroad Company, 655 F.2d 772 (7th Cir. 1981).*fn7

Not a single case has held that plaintiffs who assert rights guaranteed by the Constitution or civil rights granted by federal statutes are barred by the assertion in an earlier action of similar rights by others. See Hampton v. City of Chicago, 484 F.2d 602, 606 n. 4 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1414, 39 L.Ed.2d 471 (1974) (Justice Stevens, then circuit judge) ("A finding in favor of defendants in [the previous state court] case is clearly no bar to this action [under §§ 1983 and 1985(3)] since none of these plaintiffs is a party to that judgment."); Jeffries v. Swank, 337 F. Supp. 1062, 1065 (N.D.Ill. 1971) (§ 1983 action not barred by previous state court judgment: "[D]espite the fact that there is a final judgment in Nelson involving the same cause of action, plaintiffs here were not parties, successors to, in privity with, or represented by the parties in the state action."). Cf. Roberts v. American Airlines, Inc., 526 F.2d 757, 761 (7th Cir. 1975), cert. denied sub nom. Williams v. American Airlines, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Defendants have presented not a shred of support for their position.*fn8

In sum, the state defendants may assert the defense of res judicata against the plaintiffs Byrnes, Calliouet, Hershberger, Rothman, Widlic, and Strobeck. They may not assert this defense against ...

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