The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff, Bradford Lyttle ("Lyttle"), moves to reconsider this Court's November 20, 2007 Order dismissing Counts I and IV of Lyttle's Complaint on the basis of res judicata and collateral estoppel. Lyttle filed this action pursuant to 42 U.S.C. § 1983 and the First, Fourth, and Fourteenth Amendments to the Constitution against John Killackey ("Killackey"), Officer (F.N.U.) Jones ("Jones"), Officer E. Shields ("Shields"), Unknown Police Officers ("Officers"), and the City of Chicago ("the City") (collectively "Defendants"). For the reasons stated herein, Lyttle's Motion to Reconsider is granted, but Counts I and IV are dismissed on other grounds-- namely, as a matter of law because the City's disorderly conduct ordinance is constitutional as written.*fn1
On March 20, 2003, the night after the United States' invasion of Iraq, Lyttle was part of an anti-war demonstration in Chicago that led to the mass detention of approximately 800 citizens, and the arrest of 500 of those citizens by the Chicago Police Department.Officers Jones and Shields detained and arrested Lyttle under Chicago Municipal Code, MCC8-4-010(d) ("Subsection (d)") which is the disorderly conduct ordinance in Chicago. Lyttle was imprisoned for eight hours and the State prosecuted him for violating the ordinance. During the criminal trial, Lyttle moved to dismiss the charges on the basis that Subsection (d) was unconstitutional, facially vague, and over broad. The judge denied Lyttle's motion. In making its decision, the judge reviewed Illinois Supreme Court cases involving Subsection (d) and challenges to its constitutionality finding that the Illinois Supreme Court had consistently held that Subsection (d) was neither unconstitutional, vague, nor over broad. Id. at Ex. F, 4-6 (citing City of Chicago v. Fort, 46 Ill. 2d 12 (Ill. 1970); People v. Raby, 40 Ill. 2d 392 (Ill. 1968); City of Chicago v. Greene, 47 Ill. 2d 30 (Ill. 1970)). On December 12, 2006, the City prosecuted Lyttle on the disorderly conduct charge for which he was arrested in the Circuit Court of Cook County. Cplt. ¶ 17. The court issued a directed finding of not guilty. Cplt. ¶ 17.
Following his acquittal, Lyttle filed this action against Defendants. Lyttle's Complaint alleged that the City's disorderly conduct ordinance is unconstitutional and that his arrest violated his civil rights under color of state law because the ordinance violates the First and Fourteenth Amendments of the United States Constitution, and Sections 2, 4, and 5 of the Illinois Constitution. Cplt. ¶ 18-21. In his Complaint, Lyttle seeks preliminary and permanent injunctions against the City barring the City from enforcing Subsection (d) because the ordinance is unconstitutional. Cplt. ¶ 22. Lyttle also alleged that the City violated his due process rights under 42 U.S.C. § 1983 and brought State law claims against the City for malicious prosecution, respondent superior, and indemnification.
The City moved to dismiss Lyttle's Complaint arguing that Counts I and IV should be dismissed as a matter of law pursuant to the doctrine of res judicata and collateral estoppel, and alternatively, because Subsection (d) is constitutional as written. On November 20, 2007, this Court dismissed Counts I and IV on the basis that Lyttle's facial attacks to the City's ordinance were barred by the doctrines of res judicata and collateral estoppel. Lyttle moved to reconsider the Court's ruling.*fn2
In order for Lyttle to prevail on such a motion, he must allege the discovery of new evidence, an intervening change in the controlling law, or a manifest error of law. See LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). Lyttle further argues that the circumstances of his case require this Court to apply an exception to the bar of collateral estoppel because "peculiar circumstances" exist-- an argument he failed to develop in his filings. Namely, Lyttle argues that he did not have the opportunity to appeal the State Court's decision denying his motion to dismiss because he was later acquitted of the criminal charges. Although Lyttle failed to raise the "peculiar circumstance" exception in his Response brief to Defendants' Motion to Dismiss, Lyttle cited case law supporting his assertion, and therefore, this Court will consider this argument to determine whether the Court's ruling was clearly erroneous and would work an manifest injustice. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988); quoting Arizona v. California, 460 U.S. 605, 618 (1983) ("A court has the power to revisit prior decisions of its own . . . in any circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice.'" Lyttle moved to reconsider the Court's decision under both the collateral estoppel and the res judicata doctrines.
Under Illinois law for the doctrine of collateral estoppel a defendant must show that: "(1) the issue decided in the prior adjudication is identical with the one presented in the suit in question; (2) there was a final judgment on the merits in the prior adjudication; and (3) the party against whom the estoppel is asserted was a party or in privity with a party to the prior adjudication." Bajwa v. Metropolitan Life Ins. Co., 804 N.E.2d 519, 532 (Ill. 2004). Since the doctrine of collateral estoppel is an equitable doctrine, "collateral estoppel must not be applied to preclude parties from presenting their claims or defenses unless it is clear that no unfairness results to the party being estopped." Id. Here, the parties agree that the issues and the parties are identical and that the State Court judge issued a written opinion following a fully briefed motion to dismiss Lyttle's facial attacks to the City's disorderly conduct ordinance. The parties also agree that the State Judge's order was interlocutory, and thus, unappealable, and that the defendant was later acquitted precluding a post-conviction appeal.
Pre-trial rulings in criminal trials can have a preclusive effect on later cases. See e.g. People v. Owens, 464 N.E.2d 252, 255 (Ill. 1984) (estopping inmate from relitigating suppressing his confession because the matter was decided in a motion to suppress hearing before the trial court); People v. Miller, 464 N.E.2d 1197, 1199 (Ill. App. Ct. 1984)(barring defendant from relitigating a pretrial motion to suppress unless there is additional evidence or peculiar circumstances warranting reconsideration not merely discovering a new argument). However, Illinois Courts have identified a limited exception to the application of collateral estoppel in "peculiar circumstances," specifically, when a criminal defendant did not have an opportunity to obtain a review of the correctness of a ruling made in his earlier trial because of his acquittal. See People v. Mordican, 356 N.E.2d 71, 73-74 (Ill. 1976); see also People v. Hopkins, 284 N.E.2d 283, 285 (Ill. 1972) (peculiar circumstances include a "variety of reasons [the criminal defendant] might not wish to appeal" or additional evidence). Lyttle's Motion to Dismiss was denied in an interlocutory order issued by the State Court trial judge, and as such, Lyttle could not appeal the pre-trial order. See e.g. People v. Farmer, 650 N.E.2d 1006, 1009 (Ill. 1995) (Under Illinois law, a criminal defendant cannot appeal prior to trial the denial of a pre-trial motion). Nor could Lyttle appeal the decision post-acquittal. See e.g. People v. Cunningham, 766 N.E.2d 323 (2d Dist. 2002) (A criminal defendant who is acquitted cannot appeal pre-trial rulings). Accordingly, Lyttle's circumstances constitute a "peculiar circumstance" permitting him to raise the issue and not be collaterally estopped under exception to the collateral estoppel doctrine under Illinois law.*fn3
Defendants argue that the "peculiar circumstances" exception to the collateral estoppel doctrine is limited to criminal prosecutions citing to the Hopkins and Mordican cases-- both criminal cases-- and to Justice Burger's dissent in Ashe v. Swenson. 397 U.S. 436 (1970) in which he distinguished the policy rationales for applying collateral estoppel in civil cases as being of less importance in criminal trials. Id. at 464. Yet, language in the Sutherland opinion suggests against limiting the exception to subsequent criminal prosecutions. See People v. Sutherland, 223 Ill.2d 187, 207 (Ill. 2006) (emphasis added) ("[W]here a defendant is acquitted and thereby denied the opportunity to appeal the trial court's ruling" that party will not be barred from relitigating the issue "in a subsequent proceeding.") Because Lyttle was not allowed to appeal the State Court Judge's ruling on his motion to dismiss in the criminal proceeding after he was acquitted, Lyttle's claim in this subsequent proceeding is not barred by the doctrine of collateral estoppel. Applying the doctrine of collateral estoppel to Counts I and IV would result in a manifest injustice, and therefore, Lyttle's Motion to Reconsider this Court's ruling dismissing Counts I and IV on the basis of collateral estoppel is granted.
Lyttle also moves to reconsider this Court's ruling dismissing Counts I and IV on the basis of res judicata. Federal courts must give a state-court judgment "full faith and credit," and give state-court judgments the res judicata effect an Illinois court would give it. Torres v. Rebarchak, 814 F.2d 1219, 1222 (7th Cir. 1987) (applying Illinois law); Long v. Shorebank Dev. Corp., 182 F.3d 548, 560 (7th Cir. 1999) ("Because an Illinois state court rendered the . . . order at issue, we must apply Illinois law to determine whether res judicata bars [the] claims."). Under Illinois law, the essential elements of the res judicata doctrine are (1) identity of parties or their privies in the two suits; (2) identity of causes of action in the prior and current suit; and (3) a final judgment on the merits in the prior suit. Rockford Mut. Ins. Co. v. Amerisure Ins. Co. and Michigan Mut. Ins. Co., 925 F.2d 193, 195 (7th Cir. 1991); Torres, 814 F.2d at 1222. The parties agree that the first two prongs are met, but disagree as to whether Lyttle received a final judgment on the merits. Specifically, Lyttle contends that the "peculiar circumstance" exception recognized by the Illinois Courts in Mordican, Sutherland, and Hopkins should also be applied to the doctrine of res judicata. Put another way, Lyttle argues that he did not receive a final judgment on the merits because he was prevented from appealing the State Court's interlocutory order denying his motion to dismiss.
The Illinois Supreme Court has yet to address whether the "peculiar circumstance" exception applies to the doctrine of res judicata. Since the Illinois Supreme Court has not directly addressed this issue, decisions of the Illinois Appellate Courts control, unless there are persuasive indications that the Illinois Supreme Court would decide the issue differently." Allen v. Transamerica Insurance Co., 128 F.3d 462, 466 (7th Cir. 1997). At least one Appellate Court has limited the applications of both doctrines in "exceptional circumstances." People v. Savory, 435 N.E.2d 226, 229-30 (Ill. App. Ct. 1982) (Defendant was not barred from relitigating his motion to suppress during the second trial by the doctrines of res judicata and collateral estoppel because the statements that the defendant sought to suppress could not have contributed to his first conviction and would have been considered moot on appeal.); see also People v. Smith, 390 N.E.2d 1356 (Ill. 1979) (defendant was not precluded from relitigating issues on remand concerning the validity of a search warrant where issues were presented to, but not decided by, the appellate court).
Moreover, Illinois Courts refrain from applying res judicata and collateral estoppel "if the plaintiff did not have a full and fair opportunity to litigate his claim in state court." Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir. 2007) (res judicata); see also Sutherland, 223 Ill.2d at 207 (collateral estoppel); citing People v. Pawlaczyk, 724 N.E.2d 901 (Ill. 2000), quoting Vroegh v. J&M Forklift, 651 N.E.2d 121 (Ill. 1995). Under Illinois law, "the denial of [a] defendant's motion to dismiss the indictment [is] not a final and appealable order" but is, in fact, an interlocutory order. See People v. Taylor, 286 N.E.2d 122, 123 (Ill. App.Ct. 1972). And, Illinois courts have held ...