Sterling S. Miller v. Vincent Schoemehl

___________
No. 93-1811
___________
Sharon Tyus, *
*
Plaintiff, *
*
Sterling S. Miller, *
*
Appellant, *
* Appeal from the United States
Irving Clay, Jr.; Bertha * District Court for the
Mitchell, * Eastern District of Missouri.
*
Plaintiffs, *
*
Clarence Woodruff, *
*
Appellant, *
*
Claude Taylor, *
*
Plaintiff, *
*
Paula J. Carter, *
*
Appellant, *
*
Freeman Bosley, Sr., *
*
Plaintiff, *
*
William L. Clay, Jr.; Kenneth *
Jones, *
*
Appellants, *
*
v. *
*
Vincent C. Schoemehl; Thomas A. *
Villa; Board of Aldermen, of *
the City of St. Louis; Board of *
Election Commissioners, of St. *
Louis City; City of St. Louis, *
a municipal corporation, *
*
Appellees. *
__________
Submitted: April 9, 1996
Filed: August 16, 1996
__________
Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
MAGILL, Circuit Judge.
___________
MAGILL, Circuit Judge.
At issue in this § 2 Voting Rights Act case is whether issue
preclusion bars certain plaintiffs-appellants1 from bringing a
second suit challenging the St. Louis aldermanic district
boundaries, which are drawn based on the 1990 federal decennial
census. Although these appellants were not parties to the original
lawsuit challenging the aldermanic boundaries, see African American
Voting Rights Legal Defense Fund v. Villa, 54 F.3d 1345 (8th Cir.
1995) (the Aldermen-AAVR suit), cert. denied, 116 S. Ct. 913
(1996), they were "virtually represented" by those plaintiffs to
the Aldermen-AAVR suit, and therefore issue preclusion does apply.
The district court2 held that claim preclusion, rather than issue
preclusion, applies, so we affirm on alternate grounds.
I.
The city of St. Louis is governed by a Board of Aldermen
consisting of twenty-eight aldermen elected from twenty-eight
1
Plaintiffs in this suit included Sharon Tyus, Irving Clay,
Jr., Bertha Mitchell, Claude Taylor, Freeman Bosley, Sr.,
Sterling Miller, Clarence Woodruff, and Paula Carter. In
addition, William Clay, Jr. and Kenneth Jones sought to
intervene, but their motion was denied as moot. Only Miller,
Woodruff, Carter, Clay, Jr., and Jones have appealed the district
court's decision.
2
The Honorable Edward L. Filippine, United States District
Judge for the Eastern District of Missouri.
-2-
single-member wards. In 1991, St. Louis began to redraw the
aldermanic boundaries in accordance with the 1990 census. Although
the census revealed that African-Americans comprised a majority in
thirteen of the twenty-eight wards, and were a plurality in one
additional ward, the majority of aldermen voted to adopt an
aldermanic map that provided for sixteen wards in which whites have
a voting age majority and twelve wards in which African-Americans
have a voting age majority.
A. AAVR Lawsuit
On January 16, 1992, a group of African-Americans filed the
AAVR lawsuit, challenging the validity of the new ward boundaries.
See African American Voting Rights Legal Defense Fund v. Villa, No.
4:92 CV 00044 (E.D. Mo. 1992). Among the named plaintiffs were
five African-American St. Louis aldermen--Freeman Bosley, Sr.,
Sharon Tyus, Bertha Mitchell, Claude Taylor, and Irving Clay, Jr.
(the Aldermen plaintiffs)--and the African American Voting Rights
Legal Defense Fund. Initially, several different counsel
represented the plaintiffs. Eventually, these attorneys were
replaced with attorney Judson Miner.
In this suit, plaintiffs contended that (1) the boundary lines
were drawn in such a way as to fragment concentrations of black
population, diluting black voting strength in violation of § 2 of
the Voting Rights Act, 42 U.S.C.A. § 1973 (West 1994 & Supp. 1996),
and the First, Thirteenth, Fourteenth, and Fifteenth Amendments to
the United States Constitution; (2) the boundary lines were drawn
in such a way as to pack concentrations of black population into
specific wards, diluting overall black voting strength in violation
of the above provisions; and (3) the ward boundaries violate the
Fourteenth Amendment, because they have populations with a variance
in excess of ten percent.
On February 19, 1992, defendants in the Aldermen-AAVR suit
-3-
(collectively, the City) moved for summary judgment, contending
that the map had been drawn in such a way as to provide substantial
proportionality. Four affidavits supporting this claim, including
a statistical analysis performed by Donald L. Davidson, the City's
expert, were attached. On April 27, 1992, counsel for plaintiffs
opposed this motion with an affidavit from expert witness Dr.
Charlene Jones. The affidavit discussed the appropriate means of
measuring proportional representation and other issues surrounding
both the dilution claim and the Fourteenth Amendment claim.
Meanwhile, a dispute over trial strategy had arisen between
the Aldermen plaintiffs and original counsel. On April 24, 1992,
the Aldermen plaintiffs hired their current attorney, Judson Miner
(although, for reasons unexplained by the parties, original counsel
continued to file papers, such as the Jones affidavit, on behalf of
the plaintiffs for another month). On May 5, the Aldermen
plaintiffs moved to voluntarily withdraw from the Aldermen-AAVR
suit and have their claims dismissed without prejudice.
After having sought leave to withdraw from the Aldermen-AAVR
suit, the Aldermen plaintiffs learned that the original counsel had
responded to the City's summary judgment motion with only the Jones
affidavit. On May 26, 1992, dissatisfied with this submission, the
Aldermen plaintiffs sought leave to file out of time a twelve-page
memorandum of law and two supporting affidavits in an attempt to
bolster the Jones affidavit. This motion, made more than three
months after the City's summary judgment motion, was denied by the
district court without explanation.
B. Miller Lawsuit
On April 27, 1992, with the City's summary judgment motion
pending in the Aldermen-AAVR suit, the Aldermen plaintiffs filed a
second lawsuit against the City challenging the St. Louis map. See
Sharon Tyus, et al. v. Schoemehl, No. 4:92 CV 0000801 (E.D. Mo.
-4-
1992) (the Miller suit). In this suit, the plaintiffs raised the
same claims as those raised in the Aldermen-AAVR suit: (1) the
boundary lines as drawn fragment the black population, diluting
black voting strength in violation of § 2 of the Voting Rights Act;
and (2) the map was drawn with the discriminatory purpose of
diluting black voting strength, in violation of the Fourteenth and
Fifteenth Amendments and 42 U.S.C. § 1983. At this time, attorney
Miner represented the plaintiffs in both suits. The Aldermen
plaintiffs were joined in the Miller suit by Sterling Miller,
Clarence Woodruff, and Paula Carter (an African-American Missouri
state representative).
C. Subsequent Orders in the Two Suits
On June 17, 1992, the district court in the Aldermen-AAVR suit
granted the City's motion for summary judgment. The court
determined both that expert Jones's memorandum failed to refute the
City's assertion that the 1991 ward map provides African-American
voters with proportional representation and that the Jones
memorandum raised no triable issue with respect to the one person-
one vote claim. Second, the court denied as moot the Aldermen
plaintiffs' motion to withdraw from the Aldermen-AAVR suit.
Meanwhile, on June 6, 1992, the City moved to dismiss the
Miller suit on the grounds that the Aldermen-AAVR suit was still
pending before the district court and the Aldermen plaintiffs were
plaintiffs in both suits. On June 20, the City renewed this
motion, contending now that, given the grant of summary judgment to
the City in the Aldermen-AAVR suit, the Miller suit was barred by
res judicata and stare decisis.
On June 29, 1992, in the Aldermen-AAVR suit, the Aldermen
plaintiffs, as well as the African American Voting Rights Legal
Defense Fund, filed a Rule 59(e) motion to alter or amend the June
17 summary judgment and mootness orders. The parties in the Miller
-5-
suit agreed to stay briefing in that suit until the Rule 59(e)
motion in the Aldermen-AAVR suit was ruled upon. The Rule 59(e)
motion was denied on November 2, 1992. Upon the denial of the Rule
59(e) motion, the plaintiffs in the Miller suit moved for leave to
file an amended complaint, dropping the Aldermen plaintiffs from
the suit; adding two new plaintiffs, William L. Clay, Jr., an
African-American Missouri state senator, and Kenneth Jones, an
African-American St. Louis alderman; and expanding their factual
allegations.
The district court converted the City's June 20 motion to
dismiss the Miller suit into a summary judgment motion, and on
March 2, 1993, the court granted this motion on claim preclusion
grounds. The court first noted that the Aldermen plaintiffs, who
were never allowed to withdraw from the Aldermen-AAVR suit, were
clearly barred from raising their claims by claim preclusion.
Further, although plaintiffs Miller, Woodruff, and Carter were not
parties to the Aldermen-AAVR suit, they were nevertheless in
privity with the plaintiffs in the Aldermen-AAVR suit under a
theory of "virtual representation." According to the district
court, these plaintiffs had been adequately represented by the
plaintiffs in the Aldermen-AAVR suit and thus were bound by the
ruling in that suit. Mem. & Order at 4 (Mar. 2, 1993). The court
further denied as moot the motion to amend the complaint and add
Jones and Clay, Jr. as plaintiffs. Id. at 8.
Miller, Woodruff, and Carter, as well as Jones, Jr. and Clay
(the Miller plaintiffs), appealed the March 2, 1993 ruling. They
sought to have the appeal consolidated with the AAVR appeal that
was then currently pending before this Court. The consolidation
motion was denied and this Court stayed proceedings in the Miller
suit pending resolution of the AAVR appeal.
This Court summarily affirmed the granting of the summary
judgment motion in the Aldermen-AAVR suit, see African American
-6-
Voting Rights Legal Defense Fund, Inc. v. Villa, 999 F.2d 1301 (8th
Cir. 1993). The Supreme Court vacated this decision and remanded
for reconsideration of other issues not pertinent here in light of
Johnson v. DeGrandy, 114 S. Ct. 2776 (1994). See Tyus v. Bosley,
114 S. Ct. 2776 (1994). Upon remand, this Court again upheld the
grant of summary judgment to the City. See African American Voting
Rights Legal Defense Fund, Inc. v. Villa, 54 F.3d 1345 (8th Cir.
1995), cert. denied, 116 S. Ct. 913 (1996). Following this
decision, this Court vacated the stay of proceedings in the Miller
suit and directed the parties to brief the issues involving the
grant of summary judgment in this case.3
II.
A.
Both suits raise identical dilution claims. Each contends the
map boundaries violate § 2 of the Voting Rights Act by fragmenting
black voters, thereby diluting black voting strength. Each also
contends that the dilution of black voting strength violates the
Fourteenth and Fifteenth Amendments.4 At issue, then, is whether
the Miller suit is barred by issue preclusion5 because the claims
3
We grant the appellants' motion to supplement the record to
include the decision in Shaw v. Reno, 509 U.S. 630 (1993).
4
The Miller suit also contends that the vote dilution
violates 42 U.S.C. § 1983. In substance, however, this is not a
separate claim. Rather, it is subsumed under the Voting Rights
Act and Fourteenth and Fifteenth Amendment claims; this claim
appears to us to be no more than "a cosmetic change" in pleading
designed to "perpetuate litigation on the same basic issues."
Simmons v. O'Brien, 77 F.3d 1093, 1097 (8th Cir. 1996).
5
Regarding the interplay between issue preclusion and claim
preclusion, the Supreme Court has noted:
The preclusive effects of former adjudication are
discussed in varying and, at times, seemingly
conflicting terminology, attributable to the evolution
-7-
raised in that suit were litigated and necessarily decided by the
Aldermen-AAVR suit. We hold that it is.6
Under issue preclusion, once a court has decided an issue of
fact or law necessary to its judgment, "the determination is
conclusive in a subsequent action between the parties, whether on
the same or a different claim." Restatement (Second) of Judgments
§ 27 (1982); see also Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th
Cir. 1996). Issue preclusion will also bar relitigation of an
issue by one who, although not a party to the original suit, is in
privity with a party to that suit. See Oldham v. Pritchett, 599
F.2d 274, 276 n.1 (8th Cir. 1979).
In addition to the requirement that the party in the second
suit sought to be precluded was a party, or in privity with a
party, to the original lawsuit, see id., there are four other
prerequisites to the application of issue preclusion: (1) the issue
of preclusion concepts over the years. These effects
are referred to collectively by most commentators as
the doctrine of "res judicata." Res judicata is often
analyzed further to consist of two preclusion concepts:
"issue preclusion" and "claim preclusion." Issue
preclusion refers to the effect of a judgment in
foreclosing relitigation of a matter that has been
litigated and decided. Claim preclusion refers to the
effect of a judgment in foreclosing litigation of a
matter that never has been litigated, because of a
determination that it should have been advanced in an
earlier suit. Claim preclusion therefore encompasses
the law of merger and bar.
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1
(1984) (citations omitted).
6
Although the district court applied claim preclusion when
granting the City's motion for summary judgment, we believe that
issue preclusion is the appropriate preclusion doctrine in this
case. We nevertheless may affirm the district court, for "we may
affirm the district court's grant of summary judgment on any
ground supported by record." White v. Moulder, 30 F.3d 80, 82
(8th Cir. 1994), cert. denied, 115 S. Ct. 738 (1995).
-8-
sought to be precluded must be the same as that involved in a prior
action; (2) the issue must have been actually litigated in the
prior action; (3) the issue must have been determined by a valid
and final judgment; and (4) the determination must have been
essential to the prior judgment. See Farmland Indus. v. Morrison-
Quirk Grain Corp., 987 F.2d 1335, 1339 (8th Cir. 1993). The
parties do not contest that the last four requirements for
preclusion are met in this case. The sole issue, therefore, is
whether the Miller plaintiffs are in privity with the Aldermen
plaintiffs, so that the Miller plaintiffs should be bound by the
result in the Aldermen-AAVR suit.
B.
Preclusion is rooted in concerns of judicial economy. As we
have noted, "[i]n this era of overcrowded dockets the courts have
a positive duty to restrict needless relitigation of issues."
Gerrard v. Larsen, 517 F.2d 1127, 1134 (8th Cir. 1975); see also
Montana v. United States, 440 U.S. 147, 153 (1979) (preclusion
doctrines "conserve[] judicial resources"). Additionally, the
preclusion doctrines protect defendants, by relieving them of "the
expense and vexation attending multiple lawsuits." United States
v. Gurley, 43 F.3d 1188, 1197 (8th Cir. 1994) (quoting Montana, 440
U.S. at 153), cert. denied, 116 S. Ct. 73 (1995).
However, due process concerns are present when the party
sought to be precluded was not an actual party in the first
lawsuit. Because preclusion based on privity is an exception to
the "deep-rooted historic tradition that everyone should have his
own day in court," Richards v. Jefferson County, Ala., 116 S. Ct.
1761, 1766 (1996) (citation omitted), courts must ensure that the
relationship between the party to the original suit and the party
sought to be precluded in the later suit is sufficiently close to
justify preclusion. Thus, "the due process clauses prevent
preclusion when the relationship between the party and non-party
-9-
becomes too attenuated." Southwest Airlines Co. v. Texas Int'l
Airlines, 546 F.2d 84, 95 (5th Cir.), cert. denied, 434 U.S. 832
(1977).
There are three generally recognized categories of nonparties
who will be considered in privity with a party to the prior action
and who will be bound by a prior adjudication: (1) a nonparty who
controls the original action; (2) a successor-in-interest to a
prior party; and (3) a nonparty whose interests were adequately
represented by a party to the original action. See generally 18
Wright, Miller & Cooper, Federal Practice & Procedure:
Jurisdiction §§ 4451, 4454-57, and 4462 (1981 & Supp. 1990). This
case focuses on the third category.
Preclusion based on adequate representation, otherwise known
as "virtual representation," was given its clearest statement in
AeroJet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert.
denied, 423 U.S. 908 (1975). In that case, the court noted that
[u]nder the federal law of res judicata, a person may be
bound by a judgment even though not a party if one of the
parties to the suit is so closely aligned with his
interests as to be his virtual representative.
Id. at 719. Although this principle is generally accepted, courts
are sharply divided on how to implement this strand of issue
preclusion.
Some courts permit a wide use of virtual representation,
inquiring whether there exists a substantial relationship between
the party and nonparty, such that the party adequately represented
the interests of the nonparty. See, e.g., NAACP v. Hunt, 891 F.2d
1555 (11th Cir. 1990). Because of the fact-intensive nature of
these inquiries, there is no clear test that can be employed to
determine if virtual representation is appropriate. It is evident,
however, that because virtual representation rests on the notion
-10-
that it is fair to deprive a nonparty of his day in court, "virtual
representation has a pronounced equitable dimension." Gonzalez v.
Banco Cent. Corp., 27 F.3d 751, 761 (1st Cir. 1994). A nonparty
will be barred from bringing his claim only when "the balance of
the relevant equities tips in favor of preclusion." Id.
Other courts would permit a nonparty to be bound by a prior
judgment under a theory of virtual representation only in very
limited, technical situations. For example, in Pollard v.
Cockrell, 578 F.2d 1002 (5th Cir. 1978), the court noted that
"[v]irtual representation demands the existence of an express or
implied legal relationship in which parties to the first suit are
accountable to non-parties who file a subsequent suit raising
identical issues." Id. at 1008; see also Klugh v. United States,
818 F.2d 294, 300 (4th Cir. 1987) (same). Examples of such a
relationship would be "'estate beneficiaries bound by
administrators, presidents and sole stockholders by their
companies, parent corporations by their subsidiaries, and a trust
beneficiary by the trustee.'" Pollard, 578 F.2d at 1008-09
(quoting Southwest Airlines Co., 546 F.2d at 97). Under this view,
virtual representation is little more than the doctrine of
preclusion based on representation that has historically been
accepted by courts.
We agree with those courts that give wider use to virtual
representation. This liberal use better accommodates the competing
considerations of judicial economy and due process. Although we
are cognizant of the concerns underlying the Pollard decision--that
broad use of this doctrine will completely eviscerate the notion
that a party is entitled to his day in court--we believe that these
concerns are better addressed through a careful application of the
doctrine to the facts in a given case than by artificially limiting
the scope of the doctrine.
This conclusion is not altered by the recent Supreme Court
-11-
decision in Richards, supra. In Richards, the Court permitted a
group of taxpayers to challenge a municipal tax as an
unconstitutional deprivation of property, even though an earlier
group of taxpayers had already litigated this issue and lost. The
Court began by reaffirming the general rule that "'one is not bound
by a judgment in personam in a litigation in which he is not
designated as a party . . . .'" Richards, 116 S. Ct. at 1765-66
(quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)). Because the
two sets of plaintiffs were "mere 'strangers' to one another," id.
at 1768, the Court concluded that the plaintiffs to the earlier
suit did not provide "representation sufficient to make up for the
fact that [the second set of plaintiffs] neither participated in,
nor had the opportunity to participate in, the [earlier] action."
Id. (citations omitted).
However, the Court did note one important exception to the
general rule: a party to the second case will be bound by the
result of an earlier case to which it was not a party "when it can
be said that there is 'privity' between a party to the second case
and a party who is bound by an earlier judgment." Id. at 1766.
Although the Court provided some examples of what could constitute
privity, it did not offer a general definition of that term.
Rather, the Court acknowledged that "the term 'privity' is now used
to describe various relationships between litigants that would not
have come within the traditional definition of that term." Id.
Virtual representation falls squarely within this exception.
A court will apply virtual representation only when it finds the
existence of some special relationship between the parties
justifying preclusion. In essence, this is a finding that the two
parties are in privity. See Gerrard, 517 F.2d at 1134 ("Privity
. . . is merely a word used to say that the relationship between
the one who is a party on the record and another is close enough to
include that other within the res judicata.") (quoting Bruszewski
v. United States, 181 F.2d 419, 423 (3d Cir.) (Goodrich, J.,
-12-
concurring), cert. denied, 340 U.S. 865 (1950)). When, as in
Richards, the two parties are strangers to each other, then virtual
representation would not be appropriate. However, where there is
a special relationship between the parties, determined after
analyzing the factors listed below, then the parties are in
privity, and Richards is simply inapposite.
C.
Due to the equitable and fact-intensive nature of virtual
representation, there is no clear test for determining the
applicability of the doctrine. There are, however, several guiding
principles. First, identity of interests between the two parties
is necessary, though not alone sufficient. See Mann v. City of
Albany, Ga., 883 F.2d 999, 1003 (11th Cir. 1989). Other factors to
be considered "include a close relationship between the prior and
present parties; participation in the prior litigation; apparent
acquiescence; and whether the present party deliberately maneuvered
to avoid the effects of the first action." Petit v. City of
Chicago, 766 F. Supp. 607, 612 (N.D. Ill. 1991) (citing 18 Wright,
Miller & Cooper, Federal Practice & Procedure: Jurisdiction
§ 4457).
Another factor to consider is adequacy of representation,
Gonzalez, 27 F.3d at 762, which is best viewed in terms of
incentive to litigate.7 That is, one party "adequately represents"
7
In concluding that adequacy of representation refers to
incentive to litigate rather than to actual trial strategy and
possible trial errors, as some commentators have argued, see,
e.g., 18 Wright, Miller & Cooper, Federal Practice & Procedure:
Jurisdiction § 4457, we are influenced by two observations.
First, in applying virtual representation, courts must perform a
preliminary relationship inquiry: whether one party's interests
are so aligned with those of another that one party can be
considered a proxy for the other party. While incentive to
litigate may have some bearing on whether the two parties'
interests are aligned, considerations of trial strategy and
-13-
the interests of another when the interests of the two parties are
very closely aligned and the first party had a strong incentive to
protect the interests of the second party.
Finally, the nature of the issue raised--whether a public law
issue or private law issue--is important. Although virtual
representation may be used in the private law context, its use is
particularly appropriate for public law issues. As the Supreme
Court recently noted, when a case challenges a "public action that
has only an indirect impact on [a party's] interests," Richards,
116 S. Ct. at 1768, due process concerns are lessened. In this
situation, courts have "wide latitude to establish procedures . . .
to limit the number of judicial proceedings . . . ." Id.
Further, we note that in public law cases, the number of
plaintiffs with standing is potentially limitless. If parties were
allowed to continually raise issues already decided, public law
possible trial errors, because they have little bearing on the
relationship between the parties, are external to this inquiry.
Second, we note that "in civil litigation, the sins of the
lawyer routinely are visited upon the client." Gonzalez, 27 F.3d
at 762 n.12. As such,
[w]e do not understand why a nonparty who comes within
the doctrinal framework for virtual representation--a
framework in which party and nonparty share identical
interests, and that provides for notice and a weighing
of equitable considerations--should be treated
differently from a party in this regard.
Id. If party A is a proxy for party B, then we should hold party
B to the same standards as we would hold party A. To not apply
virtual representation when counsel is deficient would encourage
fence-sitting: the nonparty will benefit if the party plaintiff
wins, but if the party plaintiff loses due to counsel's deficient
performance, the nonparty could refile suit, thereby tactically
maneuvering around counsel's deficient performance. Thus,
applying preclusion in this situation not only reinforces the
goal of judicial economy, but it also prevents an end-run around
the rule that parties are responsible for the acts of their
counsel.
-14-
claims "would assume immortality." Los Angeles Branch NAACP v. Los
Angeles Unified Sch. Dist., 750 F.2d 731, 741 (9th Cir. 1984)
(applying virtual representation to preclude plaintiff from raising
school desegregation claim), cert. denied, 474 U.S. 919 (1985).
Concerns of judicial economy and cost to defendants, while present
in every suit, are particularly important in this context. There
is another important consideration: in the public law context, if
the plaintiff wins, by definition everyone benefits. Holding
preclusion inapplicable in this context would encourage fence-
sitting, because nonparties would benefit if the plaintiffs were
successful but would not be penalized if the plaintiffs lost.
D.
We conclude that issue preclusion based on virtual
representation is appropriate in this case. In reaching this
conclusion, we are persuaded by the reasoning of Petit, supra. In
Petit, the city of Chicago, in response to a suit brought by the
United States Department of Justice alleging discrimination in
hiring and promoting blacks, Hispanics, and women within the
Chicago Police Department, developed a new sergeant's exam,
consisting of a written test, oral examination, and performance
evaluation. See Petit, 766 F. Supp. at 609. Many white applicants
for sergeant sought to intervene in the continuing suit, alleging
that the city manipulated the test scores in favor of minority
applicants. Intervention was permitted, and subsequently many of
the intervenors' claims were dismissed with prejudice. Id. at 610.
Having failed to obtain redress, many of the intervenors,
along with additional white police officers, filed the action in
Petit, raising the same claims previously dismissed. The court
held that res judicata barred all claims, including those of
plaintiffs who had not intervened in the earlier suit. Id. at 612-
13.
-15-
In applying the virtual representation doctrine, the court
relied on several factors. The court first mentioned that the
claims raised in the two suits were identical, and that the same
counsel argued both cases. More significantly, the court took
notice of the tactical maneuvering taking place:
The intervenors cannot avoid an express federal
court order that dismissed their claims with prejudice by
adding the non-intervenors and refiling this claim. A
finding of privity comports with the policy behind res
judicata. If the intervenors succeeded originally, all
of the white police officers would have benefitted--even
the non-intervenors. On the other hand, if the
intervenors lost, which they did, the non-intervenors
cannot obtain a second determination by bringing this
separate action. Such an action would encourage "fence-
sitting" and discourage the principles and policies the
doctrine of res judicata was designed to promote.
Id. at 613. Given the close alignment of interests between the
first suit intervenors and nonintervenors, and the tactical
maneuvering taking place, the district court held that the
nonintervenors had already taken their bite at the litigative
apple.
The facts in the present case are similar to those in Petit.
First, both the Aldermen-AAVR suit and the Miller suit raise
similar claims, and there was an overlap in plaintiffs between the
two suits. Further, attorney Miner was plaintiffs' counsel in the
Miller suit, and he was substituted as counsel in the Aldermen-AAVR
suit on April 24, 1992, well before the City's summary judgment
motion was granted. These factors suggest, at least partly, that
a close relationship exists between the prior and present parties.
See id. at 612.
We further note that plaintiff Carter, potential plaintiffs
Clay Jr. and Jones, and all of the Aldermen plaintiffs were elected
African-American officials. They all shared the same concern: the
-16-
dilution of the African-American vote in St. Louis. This
organizational commonality suggests a special commonality of
interests. See Hunt, 891 F.2d at 1561 (where plaintiff in first
suit and plaintiffs in second suit were state legislators and
members of the NAACP, this was factor demonstrating commonality of
interest).
More importantly, as in Petit, there is tactical maneuvering
taking place in Miller. In an effort to circumvent trial strategy
disagreements, the Aldermen plaintiffs filed the Miller suit,
simply adding new plaintiffs. This second lawsuit directly
contravenes the policies supporting the preclusion doctrines. A
victory by the Aldermen plaintiffs in the Aldermen-AAVR suit would
have directly benefited the Miller plaintiffs. On the other hand,
without virtual representation, a loss by the Aldermen plaintiffs
would cause no harm to the Miller plaintiffs. In such a situation,
there is no incentive to intervene. Quite the contrary: holding
preclusion inapplicable assures that a party would not intervene,
for it would allow various members of a coordinated group to bring
separate lawsuits in the hope that one member of the group would
eventually be successful, benefiting the entire group. This
entails a significant cost to the judicial system and
"discourage[s] the principles and polices the doctrine of res
judicata was designed to promote." Id. at 613.
Finally, that the Miller case raises an issue of public law is
another factor in favor of preclusion. The Miller plaintiffs do
not allege that they have been denied the individual right to vote.
Rather, they allege that the strength of the black vote in general
has been diluted. Because the plaintiffs do not allege that they
"have a different private right not shared in common with the
public," Stromberg v. Board of Educ. of Bratenahl, 413 N.E.2d 1184,
1186 (Ohio 1980) (cited approvingly by Richards, 116 S. Ct. at
1768), the plaintiffs raise an issue of public law, and thus the
due process concerns attendant with a broad application of
-17-
preclusion are lessened. See Richards, 116 S. Ct. at 1768.
Further, given the public nature of this case, if we held
preclusion inapplicable, this case could "assume immortality," Los
Angeles Branch NAACP, 750 F.2d at 741, and fence-sitting would be
encouraged. See supra, slip op. at 15.
The Miller plaintiffs contend that preclusion is inappropriate
because the Aldermen plaintiffs did not adequately represent their
interests at the first trial. They note that counsel in the
Aldermen-AAVR suit failed to file a formal motion in opposition to
the summary judgment motion. Plaintiffs argue that absent an
effective and diligent prosecution of the case at the first trial,
virtual representation is inapplicable. We disagree.
As noted above, adequate representation is best viewed in
terms of incentive to litigate. See supra note 7. The Aldermen
plaintiffs had every incentive and opportunity to fully litigate
the claims raised in the Aldermen-AAVR suit. No more is required.
See Simmons, 77 F.3d at 1097 n.4 (when assessing whether party had
full opportunity and incentive to litigate case, there is no
further requirement that plaintiff actually take advantage of that
opportunity).
Given the factors counseling in favor of preclusion, we
determine that the Aldermen plaintiffs adequately represented the
interests of the Miller plaintiffs, and thus the two sets of
plaintiffs are in privity. The Miller plaintiffs have vicariously
had their day in court and their "one bite at the apple." As such,
they are precluded from litigating those issues that were decided
by the Aldermen-AAVR suit.8
8
The Miller plaintiffs contend that preclusion is
inapplicable in this case given the changes in voting rights
jurisprudence occasioned by Shaw v. Reno, 509 U.S. 630 (1993),
and Miller v. Johnson, 115 S. Ct. 2475 (1995), both decided after
the filing of the complaint in the Aldermen-AAVR suit.
-18-
III.
We conclude that the Aldermen plaintiffs adequately
represented the interests of the Miller plaintiffs and thus acted
as their virtual representatives during the Aldermen-AAVR suit. As
such, the Miller plaintiffs are precluded from relitigating those
issues that were litigated in the Aldermen-AAVR suit. We affirm
the district court's grant of summary judgment.
HENLEY, Senior Circuit Judge, concurring in the result.
The panel's opinion is very well written and seems to make the
best of the arguments in favor of finding preclusion here. And, on
balance, I agree with the panel's result: that the present case is
barred by the previous litigation. Nevertheless, the case is a
close one and I am uncomfortable with some of the panel's language.
Accordingly, this brief statement of my reasons for concurring only
in the result is tendered.
In general, I have some concern about how far we should go in
extending preclusive effect to cases of so-called "virtual
representation." As the panel points out, due process
considerations provide an outer limit on the scope of preclusion.
It is one thing to hold that a party in privity under principles of
contract or property law should be bound by the results of prior
Although some courts have declined to apply preclusion
principles given an intervening change in voting rights law, see,
e.g., Parnell v. Rapides Parish Sch. Bd., 563 F.2d 180, 185 (5th
Cir. 1977), cert. denied, 438 U.S. 915 (1978), in this case there
was no intervening legal change, as argued by the Miller
plaintiffs. Shaw was decided on June 28, 1993. The first AAVR
appeal was not decided until August 4, 1993, and the second
appeal, following remand, was not handed down until nearly two
years later, on May 12, 1995. Thus, any change in law occasioned
by the Shaw opinion was fully available to the appellants in
AAVR. As for Johnson, even though it was handed down after the
appeal in AAVR, it is an extension of Shaw and thus does not
constitute a sufficient intervening change in the law.
-19-
litigation. It is quite another matter, however, to say that
strangers to the prior litigation should be bound solely because
they would raise the same issue or favor the same legal position.
More specifically, in this case, I believe it is a close
question whether our result is fully consistent with the language
and spirit of the Supreme Court's decision this term in Richards v.
Jefferson County, Alabama, 116 S. Ct. 1761 (1996). In Richards,
the Court held that a suit by persons employed in Jefferson County
challenging the constitutionality of an occupation tax was not
barred by principles of res judicata even though a prior suit (by
the City of Birmingham and several individual taxpayers) had upheld
the constitutionality of the same tax. The Court said that the
taxpayers in the second suit could not be bound by the decision on
the merits in the first suit, because they received neither "notice
of, nor sufficient representation in" the prior litigation. 116 S.
Ct. at 1769.
The panel opinion does not directly address the issue of
"notice" here and concludes that all that is necessary to satisfy
the "sufficient representation" prong of Richards is that the
plaintiffs in the first suit had the "incentive" to raise the same
issues the parties in the second suit would raise. However, the
Supreme Court's opinion appears to require something more than just
incentive: "a prior proceeding, to have binding effect on absent
parties, would at least have to be 'so devised and applied as to
insure . . . that the litigation is so conducted as to insure the
full and fair consideration of the common issue.'" Richards, 116
S. Ct. at 1767, quoting, Hansberry v. Lee, 311 U.S. 32, 43 (1940)
(emphasis added).
Despite these misgivings about the proposition of "virtual
representation" preclusion in general and some of the language of
the panel's opinion, I believe that on the facts here, the
requirements of "notice" and "sufficient representation" were
-20-
satisfied. In particular, the plaintiffs in the second suit
clearly were on notice of the first litigation, because some of
them had also been plaintiffs in the prior suit. Moreover, the
same counsel represented plaintiffs in both actions. I believe
that this identity of counsel and (at least some of the) plaintiffs
also suggests that the "sufficient representation" requirement of
due process was met. In addition, as the panel opinion points out,
it appears that the principal reason for filing the second suit was
to evade the judgment in the first suit.
It is noted, however, that the first suit was not filed as a
class action, that the litigation was disposed of on motion for
summary judgment, and that plaintiffs there filed only one
affidavit and no brief opposing summary judgment. On these facts,
it is not at all clear to me that under Richards a new plaintiff or
group of plaintiffs -- not on notice that their rights would be
litigated in the first suit nor adequately represented there --
would be barred from challenging the St. Louis districting plan
even though there was a judgment on the merits in the first suit.
For the reasons stated, I concur in the result.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-21-