Chicago Sheraton Corp. v. Zaban

SWYGERT, Circuit Judge.

The underlying issue presented in this appeal is whether the district court erred in dismissing the complaint for failure to state a claim. The immediate and dispositive issue, however, is whether the district court was correct in holding that the action was barred.

The facts alleged in the complaint are essentially undisputed and are recited in the opinion of the Supreme Court of Illinois in the prior state court litigation. Chicago Sheraton Corp. v. Zaban, 71 Ill.2d 85, 15 Ill.Dec. 634, 373 N.E.2d 1318 (1978). We see no reason why these facts should be repeated.

The important point for decisional purposes, as Judge Grady determined in his order of February 27, 1978, is that the plaintiff “raised and litigated its federal claim of denial of due process before the Illinois Supreme Court without any attempt to reserve these questions for federal court decision and that the Illinois Supreme Court decided the federal due process claim.” Judge Grady went on to hold that under such circumstances, the plaintiff was barred “from attacking the court’s decision by res judicata,” and that the only avenue left open for plaintiff was to seek review in the United States Supreme Court.

Subsequent to the district court’s order of dismissal the plaintiff did appeal to the Supreme Court from the judgment of the Supreme Court of Illinois which had affirmed the dismissal by the state trial court of plaintiff’s claim. On October 10, 1978 the United States Supreme Court dismissed the appeal “for want of a substantial question,” and on November 27, 1978 the Court denied a petition for rehearing.

This appeal is controlled by Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1974), and Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). Cf. Hogge v. Johnson City Manager, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1221 (1976); Colorado Springs Amusements v. Rizzo, 428 U.S. 913, 913-23, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976) (Brennan, J., dissenting from denial of cert.). We have examined the jurisdictional statement in the appeal to the Supreme Court, the opinion of the Illinois Supreme Court, and the briefs filed by the parties before that court and conclude that the precise constitutional claim of deprivation of due process as presented here was presented and decided by the Illinois Supreme Court and by summary dismissal of the appeal in the United States Supreme Court.

We do not base our decision on the res judicata effect of the Illinois Supreme Court decision. The United States Supreme Court never has held that res judicata applies to bar relitigation under section 1983 of actions originally adjudicated in state court, see Preiser v. Rodriguez, 411 U.S. 475, 509 n. 14, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (Brennan, J., dissenting), and we do not so hold now. Our decision is based on the principle of Hicks v. Miranda, supra, 422 U.S. at 343-46, 95 S.Ct. at 2288-2290, that a summary disposition for want of a substantial federal question is controlling precedent. Given that the issues presented to us are essentially identical to those disposed by the Supreme Court, we are compelled to affirm the dismissal of plaintiff’s complaint.

Although plaintiff makes a conclusory allegation of a denial of rights protected by the Equal Protection Clause of the Constitution, that claim was neither briefed nor argued in this appeal. In these circumstances, we do not regard the allegation as affecting our conclusion that the district court’s dismissal of plaintiff’s complaint must be affirmed.