Sean J. O'Reilly v. County Board of Appeals for Montgomery County, Maryland
900 F.2d 789
4th Cir.
1990
Check Treatment

*2 requested that the court invalidate the WILKINS, Before MURNAGHAN and using Board’s decision a strict standard of HARVEY, Judges, Circuit Chief scrutiny. constitutional He also filed a civ- Judge United States District for the rights il action in alleg- state circuit court Maryland, sitting District of ing that the denial of a license and the designation. provide that he trаnscript hearings before the Board in order to WILKINS, Judge: Circuit file an administrative violated his O’Reilly appeals Sean J. from the deci- rights. The state circuit sion of the dismissing district court rights dismissed the civil action on brought claim pursuant ground U.S.C.A. had not exhausted (West 1981) his administrative remedies. The II. af- ultimately Special firmed. correctly not given preclu- judgments are ed, state court rights the civil dismissal of After ac subsequent section 1983 effect sive *3 of by the Court the decision before but in federal court. See Univ brought tions court de- circuit state Appeals, the Special 788, Elliott, 478 U.S. ersity Tennessee of and af- appeal administrative the cided 3225, 3220, 635 796, 92 L.Ed.2d 106 S.Ct. It found the Board. of decision firmed the Dist. City (1986); School Migra Warren only insofar “considered was residence that 75, 80-85, Educ., 104 S.Ct. 465 U.S. Bd. of prefer- no familiarity, with as it related (1984). A 895-98, feder 892, 79 L.Ed.2d se, Montgomery ence, given to per preclusive “give same the al court must It applicants.” non-rеsident over residents that those judgments court effect to state the Board of decision that “the found also of in the courts judgments would evidence, and ... by the supported is well judgments the from which the State arbitrary, unreasonable was its action 81, 104 S.Ct. 465 U.S. emerged.” Migra, this O’Reilly did not illegal.” or v. Chemical (quoting Kremer at 896 circuit moved the state but instead decision Constr. Thus, (1982)). 1889, further to schedule court of controlling on the issue However, Maryland state law the rights action. the civil from precluded assert O’Reilly is whether the of the granted motion court circuit unconstitution that the Board ing his claim the on O’Reilly’s motion to strike Board denying his nonresidence ally relied on been had rights action the civil ground him a license. now been dismissal had and the dismissed es- appeal. on Under affirmed if it applies only preclusion, or issue toppel, in federal action an O’Reilly then filed (1) issue decided the is established claim- to 42 U.S.C.A. pursuant § сourt the identical to prior adjudication is the familiarity with the determining ing that action, (2) there was present in the an area, Board considered the geographical merits, (3) and on judgment the prior final criteri- primary residency as the applicant’s the decision whom party the priv- this violatеd contends that He on. prior action. was a being used Const, clause, U.S. immunities ileges and 29, 35, 367 Md. MPC, Kenny, Inc. v. clause, IV, the commerce cl. art. § (1977). It is undisputed A.2d 490-91 Const, I, privi- cl. art. U.S. § prior in the awas immunities, process and due leges and a decision court circuit in the state the fourteenth clauses equal protection Thus, merits. on rendered Const, XIV, amendment, amend. U.S. issue raised is whether the is identical court O’Reilly also claimed state circuit in the filing an action. present transcript before the issue provide that he pro- due his appeal violated administrative prevail that to noted court The district found rights. district cess must show claim, O’Reilly his section the state circuit the final is a he because a license he was denied asserting the fac- O’Reilly from Find- precluded County. nonresident impermissi- Board held argument that court had tual state circuit ing that the is a O’Reilly’s he claim because him a license no basis for bly denied that there was County. It because a license denied he was nonresident held that transcript requirement residency, also found 1983 action O’Reilly’s section process O’Reilly’s due violate did not issue in to the rights.1 script. challenge the O’Reilly does not appeal, 1. On regarding tran- of the district

аction and argues es- that the decision of the Board topped arguing that the Board denied protectionist, and asks the Court to him nonresidency. a license because of it, utilizing invalidate a strict standard of constitutional scrutiny. III. According to the dissent language indi- Although court is cor cates thаt the state actually circuit ‍​‌​​‌​​‌‌​​​‌‌‌​​‌​​‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‍court rect in its assertion that the state circuit O’Reilly’s considered constitutional claims court found residence was not determina and resolved them. While we would like to tive of whether an individual received a say that this issue was addressed and de- license, O’Reilly doеs not base his section cided in the state forum where the action *4 ground. 1983 claim on this Had he done so initiated, we cannot bar the doors of he would collaterally estopped from rais the federal courthouse to those pressing a ing the issue because the state circuit court basic by constitutional claim seizing upon se, found preference, per that “no [was] this language speculating that the con- Montgomery County residents stitutional issue actually addressed over applicants.” non-resident Our inter the state circuit O’Reilly it, court. raised pretation of the opinion state circuit court's but the state court did not address it.2 suggests that the Board did not automati What the court did cally deny find was that a license to resi- O’Reilly because he dence was However, only “considered was a nonresident. insofar as it rather than contending familiarity_” related to residency that disрosi was the This is O’Reil- ly’s point. tive factor in determining The state whether an indi court found that resi- license, vidual received a O’Reilly dence was a contends factor in considered determin- residency that key was the ing familiarity, factor in deter but the court did not deter- mining familiarity with Montgomery Coun mine whether this consideration was consti- ty which was in turn a key factor in deter tutional. Although the Board indicated mining whether an individual received a that only residence was aspect one of de- Thus, O’Reilly license. contends that the termining familiarity and the state circuit consideration residency in determining court found that the Board considered cri- familiarity with County vio teria familiarity, other than lates the privileges and immunities and did not indicate whether it found that resi- commerce clauses and that this issue has dence was or was controlling not the factor not been addressed. determining in familiarity or whether the cоnsideration of determining residence in O’Reilly

It is true that attempted to raise familiarity was this issue in his unconstitutional. to the state Because circuit However, language of the state record does circuit court’s sup- port finding opinion ambiguous, is this issue we cannot say was ad- with dressed. The any degree state court certainty made one it decided the reference to the constitutional issue in its issue raised in O’Reilly’s section opinion: 1983 action. Absent a identity clear issues,

Mr. claims should not be consider- estopped ation geo- asserting Board’s decision residence was graphicаl familiarity with Montgomery impermissibly considered in determining fa- County, and that the Board illegally miliarity. Without indicating opinion an re- linked ‍​‌​​‌​​‌‌​​​‌‌‌​​‌​​‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‍this to residence in county. garding claim, the merits of O’Reilly’s we 2. The dissent cites Inc. v. General Motors dispute state court had in fact resolved the (Fed.Cir.1987), denied, Thus, 827 F.2d presented by partiеs. cert. Id. the issue here, 484 U.S. (1988), 98 L.Ed.2d 656 unlike the issue was not whether the However, support. as the dissent state court had decided the identical issue as out, points court, MGA involved a collateral attack on that raised in federal but whether the a state appellant where the chal state court decision was correct and whether the lenged analysis the state court’s correctly applied Michigan claimed law on arbitrary capricious. the decision was preclusion. support MGA offers little Id. at 733. The position. Federal Circuit noted that the the dissent’s Moreover, opiniоn his which af issue. of the the decision reverse remand firmed the precluded and judge Appeals, the state County Board of to reinstate. instructions with appellant’s he had considered indicated that WITH REMANDED AND REVERSED rejected them. claims and INSTRUCTIONS. support of his memorandum II, HARVEY, Chief ALEXANDER for Mont- Circuit Court appeal filеd dissenting: Judge, District 23, 1986, ap- September County on gomery judge (1) the district I believe Because two issues: presented pellant had Maryland law applied the Board of whether dis- case, respectfully I in this Mary- mere residence in relying erred sent. regulation’s to fulfill land familiarity demonstrate applicant an correctly deter- majority served, area to be geographical with is determinative. mined, Maryland law correctly if (2) regulation, whether and whether presented Board, repugnant court is interpreted raised and *5 by decided and to raised and clause issue and immunities privileges to the the identical undis- It is this case. judge in That memorandum clause. the the commerce O’Reilly was a appellant the puted that in detail constitu- some then discussed court and state the prior action in in the of the many cited raised and tional issues was rendered an adverse upon be- relied which сounsel same cases held, how- majority has The the merits. brought to the has appellant low and which the language of the ever, that because appeal. In- in this Court of this attention it can- ambiguous, opinion court’s state in filed deed, memorandum appellant’s certainty degree any of with not be said pre- the parallels brief closely court state the decided state court the be- and filed counsel by appellant’s pared appellant’s by in federal court raised issue to dismiss motion to the opposition in low ruled majority The action. 1983 judge. by the district granted which issues, ap- identity of that, a clear absent in state Moreover, cited same cases the estopped not be pellant should filed in the brief been included court have im- his residence asserting that appeal. with this in connection by appellant famil- determining his used in permissibly Coun- proceеdings, the In the court state County. Montgomery iarity with herein, filed appellee ty Board of the record before the my review of From in 3, 1986, a memorandum on November below, I believe and the record court state appellant’s memorandum to opposition exists and issues identity of a clear privileges argued the fully which likewise is same the is- clause and commerce and immunities appellant in the action sues raised then filed counsel Appellant’s sues. Ma Under O’Reilly filed federal 10, reply 1986, a on November court state for the requirements one of the ryland the constitutional in which mеmorandum preclusion issue of application A discussed. were further arguments been must have that such party is in the Circuit hearing held particular on the day in court afforded 1987, 5, February County on oppor and fair a full and before judge had the state which time Perusse litigate issue. Pat tunity to support and mеmoranda him these 33, 45, A.2d 238 Md. Lingo, Realty claims. the constitutional opposition Prod (1968); Gerber see also Welsh Opinion and Order In his Memorandum A.2d 486 Inc., ucts, 315 Md. judge state March pro state court (1989). record Board decision of affirmed appellant ceedings discloses that decision, the reaching his In Apрeals. privileges both raised in following: judge said clause the commerce issue and immunities Mr. claims attacking consider- judgment, a state court the ap- ation in the Board’s geo- decision was pellant argued had there the state graphical familiarity with proceedings arbitrary were and that County, illegally and that the Board appellate the state court “had puz- made a linked this to residence in the county. zling, transparent, attempt and strained argues that the decision of the Board clothe the court decision with a [lower] protectionist, asks Court to legal reasonаble basis.” 827 F.2d at it, utilizing invalidate a strict standard 731. The Court of for the Federal scrutiny. Circuit nevertheless held that the collateral added.) (Emphasis attack was by principles barred using “protectionist” preclusion. words holding so the Federal Cir- scrutiny,” judge “constitutional the state cuit in MGA stated that a may indicatеd that he had privi- considered the employ preclusion its own rules of issue leges and immunities and commerce clause determining the judg- effects of state court parties issues discussed in the mem- ments. 827 F.2d at 732. A federal Nevertheless, oranda before him. the ma- accept court must the rules chosen jority apply has declined to principle state from which the judgment is taken. in this case because the Kremer v. Chemical Construction majority has opinion concluded that the U.S. ‍​‌​​‌​​‌‌​​​‌‌‌​​‌​​‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‍ambiguous. Concededly, opinion does State need any not discuss in detail the constitutional merely satisfy applicable requirements claims which by appellant were asserted process of the due clause in order to have state court. But the claims clearly were *6 Kremer, effect. 456 U.S. at before the resolution. Even if 481, 102 S.Ct. at 1897. principles These the state court’s discussion of the constitu- apply though even proceed- ideal, tional issues was less than the dis- ings may not complete be a analy- or clear pute as to those issues was finally re- sis of the law. 827 F.2d at 731. principles solved. Insofar as of collateral As previously held, this Court has estoppel concerned, finality are judg- proper forum in challenge which to a state ment and not correctness ‍​‌​​‌​​‌‌​​​‌‌‌​​‌​​‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‍of the decision is judgment judicial system is the consideration. See Restatement that state rather than federal district court. (Second) (1982). Judgments § Robart Wood & Wire Products Namaco I believe that law does not Industries, Inc., (4th 797 F.2d rеquire findings that detailed and conclu- Cir.1986). If a state court has misinter sions must have been made a court in preted misapplied or proper principles first action before of issue avenue legal to correct such er preclusion may applied in the second rors appеal is to judgment, from the not to required action. What is is that the seek collateral review. Underwriters Na day had a in court question, on the issue in tional Assurance v.Co. North Carolina such a full and fair & Accident & Health Ins. Guar. Life opportunity litigate the issue and that an Assn., adverse decision was rendered. As I read 71 L.Ed.2d partic here, the record requirements all of these case, appellant ular did not the state were met in this In applying princi- case. rejecting court’s decision his constitutional ples of estoppel, a federal court Rather, claim. he filed a suit does not review a state court federal raising the same claims. error, but rather finality. looks Dwyer, (5th Rollins v. 666 F.2d here, Under the circumstances I believe Cir.1983). determined principles Inc. preclusion prohibit- v. General Motors (Fed.Cir.1987), 827 F.2d 729 ed re-litigating court was in federal faced with a similar issue. In collaterally ‍​‌​​‌​​‌‌​​​‌‌‌​​‌​​‌​‌‌​‌‌​​‌​​‌​‌‌‌​‌‌​​​​‌‌​​‍previously claims which had been re- there- would I by the jected affirm.

fore BANK, A NATIONAL

SEATTLE-FIRST Association, Banking National

Plaintiff-Appellee, Manges, MANGES, Helen Ruth

Clinton Company and County Ranch Duval Company, De Transmission

Man-Gas

fendants-Appellants.

No. 89-5631

Summary Calendar. States

United

Fifth Circuit.

April