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DWYER v. EVOY

July 23, 1998

OFFICER MICHAEL DWYER, et al., Plaintiffs,
v.
THOMAS J. EVOY, Chief of the Evergreen Park Police Department, in his individual and official capacities, et al., Defendants.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is defendants Thomas J. Evoy, Board of Fire and Police Commissioners of The Village of Evergreen Park, and The Village of Evergreen Park's motion for summary judgment. For the reasons that follow, the court (1) denies defendants' motion for summary judgment and (2) temporarily stays this case pursuant to the Colorado River doctrine.

 I. BACKGROUND1

 On June 4, 1997, the Combined Counties Police Association published an article which contained comments made by plaintiffs Officer Michael Dwyer and Sergeant Frederick Kreil. After the article was published, defendant Thomas Evoy, who is the Chief of the Evergreen Park Police Department, informed plaintiffs that he was unhappy with their comments. On July 14, 1997, Evoy disciplined plaintiffs by suspending them from work.

 Plaintiffs appealed the suspensions to defendant Board of Fire and Police Commissioners of The Village of Evergreen Park ("the Board"). The Board conducted a hearing and rendered a decision. Dissatisfied with the Board's decision, plaintiffs sought administrative review of the Board's decision in the Circuit Court of Cook County ("the circuit court"). The complaint for administrative review raised the issue of (1) whether plaintiffs' acts warranted discipline and (2) whether Evoy's motivation violated plaintiffs' constitutional right to free speech.

 On May 12, 1998, the circuit court entered final judgment in favor of plaintiffs, holding that the imposition of discipline on plaintiffs was in retaliation for plaintiffs' remarks in the newspaper article. Defendants immediately filed a notice of appeal of the circuit court's decision and a Motion to Stay Enforcement of Judgment Pending Appeal. On May 22, 1998, the circuit court granted defendants' motion and stayed its judgment pending defendants' appeal.

 While the suit for administrative review was pending in state court, plaintiffs filed a three-count complaint against Evoy, the Board, and The Village of Evergreen Park in this court. Count I is a claim under 42 U.S.C. § 1983 for violation of plaintiffs' First Amendment rights. Count II is a claim for violation of the Illinois Constitution. Count III is a claim for malicious prosecution. The court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

 This matter is currently before the court on defendants' motion for summary judgment. Defendants argue that they are entitled to judgment on plaintiffs' claims because those claims are barred by the doctrine of res judicata. *fn2"

 II. DISCUSSION

 Defendants have moved for summary judgment, arguing that plaintiffs' claims are barred by the doctrine of res judicata. Defendants argue that the circuit court's final judgment bars plaintiffs' claims against defendants in this court because the claims could have, and should have, been brought in state court along with plaintiffs' claim for administrative review.

 A federal court must give a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which it was rendered. 28 U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). According to Illinois' res judicata rules, "a final judgment rendered on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action." Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 626 N.E.2d 225, 228, 193 Ill. Dec. 192 (Ill. 1993). The party asserting res judicata must prove (1) an identity of the parties or their privies in the two suits; (2) an identity of causes of action; and (3) a final judgment on the merits in the first suit. Pelon v. Wall, 262 Ill. App. 3d 131, 634 N.E.2d 385, 388, 199 Ill. Dec. 546 (Ill. App. Ct. 1994).

 The parties agree that, for all practical purposes, this federal action and the parties' state-court action involve the same parties. The parties disagree as to whether defendants have shown that (1) there is an identity of causes of action and (2) there is a final judgment on the merits in the state-court action.

 The court first addresses the issue of whether defendants have shown that there is a final judgment in the state-court action. On May 12, 1998, the circuit court entered a final judgment in the parties' state-court action. On that same day, defendants filed a notice of appeal. On May 22, 1998, the circuit court stayed its judgment pending defendants' appeal.

 In Illinois, it is unclear whether a pending appeal destroys the preclusive effect of a judgment. Rogers v. Desiderio, 58 F.3d 299, 302 (7th Cir. 1995). The majority of states give a decision of the trial court preclusive effect whether or not the losing party has taken an appeal. Id. at 301. In the case of State Life Insurance, Co. v. Board of Education, 401 Ill. 252, 81 N.E.2d 877 (Ill. 1948), the Supreme Court of Illinois held that it followed this majority rule. Id. However, in Ballweg v. Springfield, 114 Ill. 2d 107, 499 N.E.2d 1373, 102 Ill. Dec. 360 (Ill. 1986), the Supreme Court of Illinois announced that the filing of an appeal suspends the collateral estoppel effect of a judgment. Id. Since Ballweg, some Illinois appellate courts have extended Ballweg to apply in the context of res judicata. Id. (citing Luckett v. Human Rights Comm'n, 210 Ill. App. 3d 169, 569 N.E.2d 6, 10, 155 Ill. Dec. 6 (Ill. App. Ct. 1989); Pelon, ...


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