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Studio Art Theatre of Evansville, Incorporated v. City of Evansville

January 31, 1996

STUDIO ART THEATRE OF EVANSVILLE, INCORPORATED, AND WILLIAM MONTROSE,

PLAINTIFFS-APPELLANTS,

v.

CITY OF EVANSVILLE, INDIANA, ART GANN, CHIEF OF POLICE OF THE EVANSVILLE POLICE DEPARTMENT, STANLEY LEVCO, PROSECUTOR OF THE COUNTY OF VANDERBURGH, INDIANA, ET AL.,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Indiana, Evansville Division.

No. 90 C 192--Gene E. Brooks, Judge.

Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.

CUMMINGS, Circuit Judge.

ARGUED DECEMBER 1, 1995

DECIDED JANUARY 31, 1996

This appeal involves application of issue preclusion (collateral estoppel) and claim preclusion (res judicata) under Indiana law. Studio Art Theatre of Evansville, Indiana, and its president William Montrose filed this suit pursuant to 42 U.S.C. sec. 1983 and 28 U.S.C. sec. 2201 alleging that an Indiana statute violated various provisions of the federal Constitution. Studio Art was previously convicted in the Circuit Court of Vanderburgh County, Indiana, of violating the state RICO statute, Ind. Code sec. 35F6-2(a)(3), with a predicate offense of unlawfully selling pornographic materials within 500 feet of a church and school in violation of Ind. Code sec. 35I3-3(3). The conviction was affirmed by the Indiana Court of Appeals. Studio Art Theatre of Evansville, Inc. v. State, 530 N.E.2d 750 (Ind. Ct. App. 1989). Studio Art's petition to transfer was denied by the Supreme Court of Indiana (App. I) and certiorari was also denied, 494 U.S. 1056. Studio Art has now raised the same constitutional arguments in the district court as it raised in the state courts. Thus the district court properly dismissed the action on the ground that Studio Art was precluded from relitigating the statute's constitutionality.

In December 1987, the Indiana trial court convicted Studio Art. Studio Art challenged the constitutionality of the obscenity statute and its use as a predicate offense. In his opinion holding that Studio Art violated the Indiana RICO statute, Circuit Judge Miller responded to defendant's constitutional argument as follows:

Indiana's Racketeer Influenced and Corrupt Organization Act, as it pertains to predicate offenses of obscenity, does not violate the First and Fourteenth Amendments to the United States Constitution. 4447 Corp. v. Goldsmith (1987), __, IN __, 504 N.E.2d 559, 564. (App. H at 7.)

Although the trial court did not expressly address the constitutionality of the underlying obscenity statute, it implicitly found the statute constitutional by holding that it was a valid RICO predicate offense and by upholding the conviction.

On appeal to the Indiana Court of Appeals, Studio Art again argued that the statutory provisions involved here were unconstitutional, but the argument was rejected on the ground that the same statutory provisions had already been held constitutional in 4447 Corp. v. Goldsmith, 504 N.E.2d 559 (Ind. Ct. App. 1987), and Estate of Sappenfield, 505 N.E.2d 504 (Ind. Ct. App. 1987). Although the court did not specifically address the underlying obscenity statute, it added that "other remote constitutional arguments are presented which hinge on first and fourteenth amendment rights," and stated "[b]ecause these matters have been presented to and ruled upon by our supreme court, we do not deem it necessary to discuss them further." 530 N.E.2d at 752.

Since the trial court's judgment regarding the constitutionality of the predicate offense was there expressly affirmed, while the constitutionality of the underlying obscenity statute was implicitly affirmed, plaintiff's argument in this civil case that the issue had not been finally decided in the state criminal proceeding is unpersuasive.

Studio Art also argues that the two cases relied upon by the Indiana Court of Appeals are inapposite. That argument is similarly unpersuasive since it goes to whether the court was correct in its conclusion rather than to whether the issue had been finally decided.

In November 1993, plaintiffs filed a motion for partial summary judgment in the district court civil case based on the same First and Fourteenth Amendment arguments that had been raised and rejected in challenging Studio Art's criminal conviction. In September 1994, the court ordered plaintiffs to show cause why their actions were not barred by the doctrines of res judicata and collateral estoppel or by the principles announced in Heck v. Humphrey, 114 S. Ct. 2364. Studio Art argues that defendants had waived the preclusion issue based on a comprehensive settlement agreement. Regardless, the district court retained the power to raise the issue sua sponte, which it did. See, e.g., Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993), certiorari denied, 114 S. Ct. 278. The benefits of precluding relitigation of issues finally decided run not only to the litigants, but also to the judicial system.

In May 1995, Judge Brooks filed a memorandum opinion denying plaintiffs' motion for partial summary judgment and dismissing the complaint. As the court noted, both the Indiana trial court and Court of Appeals had held that the Indiana statute was constitutional, so that "the doctrines of res judicata and collateral estoppel apply to an attempt to relitigate issues previously decided by those courts." (App. A at 13.) The court concluded that Studio Art was barred by the doctrine of issue preclusion. The court added that since plaintiff Montrose was and is the president of Studio Art and had an opportunity to participate in Studio Art's defense and assertion of its constitutional rights in the criminal suit against it, he must be considered a privy to the prior Studio Art lawsuit and therefore precluded from bringing his current constitutional claims. See Tofany v. NBS Imaging Sys., Inc., 597 N.E.2d 23, 28-29 (Ind. Ct. App. 1992). The district ...


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