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