Sterling S. Miller v. Vincent Schoemehl

having do with opinion, of the portion ac were state employees KSDK’s whether I of 42 U.S.C. purposes tors view, the news my respectfully dissent. police in en in concert with acted crew “ They ‘will home.

tering the Parkers’ activity joint participants[s]

ful v. Adickes S.H. agents....’” or its State Go., &

Kress (1970), quoting United L.Ed.2d Price, States (1966). The 1152, 1156-57, L.Ed.2d the location came to

news crew if the entered not have and could

police They did not so first. had not done

police the time along street at happen

simply being a search was conducted. Plaintiff, TYUS,

Sharon Miller, Appellant,

Sterling S. Jr.; Clay,

Irving Bertha Plaintiffs,

Mitchell, Woodruff, Appellant,

Clarence Plaintiff, Taylor,

Claude Carter, Appellant,

Paula J. Plaintiff, Bosley, Sr.,

Freeman Jr.; Clay, Kenneth L.

William Jones, Appellants, SCHOEMEHL; A. Thomas Vil- C.

Vincent Aldermen, la; of St. Board of

Louis; Commission- Board of Election Louis, City; City

ers, of St. of St. Louis Appellees. municipal corporation,

No. 93-1811. Appeals, States Court

United

Eighth Circuit. April

Submitted Aug.

Decided Rehearing Suggestion for

Rehearing and 28, 1996.

En Banc Denied Oct. Miner, IL,

Judson H. Chicago, argued, for appellants. Hanlon, Louis, MO,

Edward James St. ar- gued (Tyrone Taborn, City Counselor, A. on brief), for appellees. BOWMAN, Before Judge, Circuit HENLEY, Judge, Senior Circuit MAGILL, Judge. Circuit MAGILL, Judge. Circuit At issue in 2 Voting Rights Act case is whether preclusion issue bars certain plaintiffs-appellants1 bringing from a second suit сhallenging the St. Louis aldermanic dis boundaries, trict which are drawn based the 1990 federal decennial Although census. appellants these origi to the nal lawsuit challenging the aldermanic boundaries, see Voting American African Rights Legal Villa, Fund v. Defense (8th Cir.1995) (the Aldermen-AAVR suit), U.S.-, (1996), 133 L.Ed.2d they were “vir tually represented” by those Aldermen-AAVR and therefore issue apply. does The district court2 preclusion, held that claim rather than issue preclusion, applies, so we affirm on alternate grounds. Miller, Tyus, Woodruff, Plaintiffs in Carter, this suit included Jr., Sharon Clay, and Jones Jr., Irving Mitchell, Clay, Bertha Taylor, appealed Claude the district court's decision. Sr., Miller, Bosley, Sterling Freeman Clarence Woodruff, аddition, and Paula Carter. Wil- 2. The Filippine, Honorable Edward L. United Clay, liam Jr. sought Jones Kenneth to inter- Judge States District for the Eastern District vene, but their motion denied Only as moot. Missouri. way drawn in such map had been

I. proportionality. substantial provide by a governed Louis is city of St. claim, includ- supporting this Four affidavits twenty- consisting of of Aldermen Board by Don- analysis performed ing a statistical twenty-eight from elected eight aldermen Davidson, at- City’s expert, were L. the ald 1991, Louis St. wards. single-member 1992, April counsel for tached. On boundaries aldermanic the to redraw began an affida- opposed this motion with plaintiffs Al- the 1990 census. with accordance in Dr. Charlene Jones. exрert vit witness from African- revealed though the census appropriate the The discussed affidavit majority in thirteen a comprised Americans represen- measuring proportional of means wards, plural- awere twenty-eight and the of surrounding the both other issues tation and ward, majority of the ity in one additional Fourteenth Amend- claim and the dilution map adopt an aldermanic voted aldermen claim. ment in which wards for sixteen provided majority and voting age twelve a have whites Meanwhile, strategy trial dispute a over have a African-Americans in which wards plaintiffs the Aldermen had arisen between majority. voting age April the original On and counsel. their current attor- plaintiffs hired Aldermen A. AAVRLawsuit (although, for reasons ney, Miner Judson 16, 1992, of African- group a January On original counsel parties, the unexplained lawsuit, challeng- filed the AAVR Americans as the Jones papers, to file such continued new ward boundaries. validity of the ing the affidavit, anoth- plaintiffs for behalf of Legal Voting ‍​‌‌‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​​​​‌​‌​‌‌​​‌​​‌​​​​‌‌‌‌​‌‍Rights American month). plain- May African On Aldermen er Villa, CV No. 4:92 Fund v. voluntarily from Defense withdraw tiffs moved (E.D.Mo.1992). Among the named have their claims suit and Aldermen-AAVK Louis St. aider- African-American five were prejudice. without dismissed Sr., Tyus, Bosley, Sharon men —Freeman having sought leave withdraw After Irving Mitchell, Taylor, and Claude Bertha suit, the Aider- the Aldermen-AáVR from (the plaintiffs) Aldermen Clay, Jr. —and оriginal coun- plaintiffs learned men Legal De- Voting Rights American African summary City’s responded sel had several different coun- Initially, Fund. fense affida- Jones judgment with motion Eventually, plaintiffs. represented sel with this May dissatisfied vit. On attorney replaced with attorneys were these sought submission, Aldermen Miner. Judson twelve-page memo- a out of time leave to file (1) suit, plaintiffs contended In this affidavits supporting two of and randum law way drawn such a boundary lines were affidavit. the Jones attempt to bolster in an popu- black of fragment as to concentrations motion, months than three made more This voting strength lation, diluting viola- black motion, summary City’s after the Act, 42 Voting Rights § 2 tion ex- court withоut by the district denied (West Supp.1996), § 1994 & U.S.C.A. planation. Fourteenth, Thirteenth, First, to the United States Amendments Fifteenth Miller Lawsuit B. Constitution; boundary lines were way pack as to concentra- in such drawn summary 27, 1992, City’s April On wards, specific into population of black tions Aldermen- pending judgment motion strength in voting viola- diluting overall black plaintiffs filed suit, the Aldermen AAVR (3) the provisions; the above tion challenging against the second lawsuit the Fourteenth boundaries violate ward Tyus, et al. map. See Sharon the St. Louis Amendment, they populations (E.D. Schoemehl, 4:92 No. CV 0000801 percent. in excess of ten a variance suit). Mo.1992) (the Miller as those claims the same plaintiffs raised February defendants in On (1) the suit: Aldermеn-AAVR City) raised in the (collectively, the suit Aldermen-AAVK fragment the black boundary as drawn contending lines judgment, summary moved population, diluting voting strength senator, black Jones, state and Kenneth an Afri- Act; § 2 Voting Rights alderman; violation of can-American St. Louis and ex- (2) map panding was drawn with the discrimi- allegations. their factual natory purpose diluting voting black City’s district court converted the strength, in violation the Fourteenth and June 20 motion to dismiss the Miller suit into Fifteenth Amendments and 42 U.S.C. summary judgment motion, and on March time, attorney repre- 1983. At this Miner granted the court this motion on sented the both suits. The Al- claim grounds. The court first joined dermen in the Miller noted that plaintiffs, the Aldermen who were Miller, Woodruff, by Sterling Clаrence never allowed to withdraw from the Alder- (an and Paula Carter African-American Mis- suit, clearly men-AAVR were barred from representative). souri state raising by preclusion. their claims claim Further, although Miller, Woodruff, plaintiffs Subsequent C. in the Orders Two Suits parties and Carter were not to the Alder- 17, 1992, On June the district court in the suit, they men-AAVñ were nevertheless in granted City’s suit Aldermen-AAVK the mo- privity plaintiffs in the Aldermen- summary judgment. tion for The court de- theory AAVR suit repre- under of “virtual expert termined both that Jones’s memoran- court, sentation.” According to the district City’s dum failed to the refute assertion that plaintiffs adequately these had repre- been map provides the 1991 ward African-Amеri- by plaintiffs sented the in the Aldermen- proportional representation can voters with AAVR suit and thus were bound the and that the Jones memorandum raised no (Mar. ruling in that suit. Mem. & Order at 4 respect person- triable issue with to the 1993). one The court further denied as moot Second, one vote claim. the court denied as complaint motion to amend the and add plaintiffs’ moot the Aldermen motion to with- Clay, plaintiffs. Jones and Jr. as Id. at 8. draw from the Aldermen-AAVK suit. Miller, Woodruff, Carter, as well as Meanwhile, 6, 1992, City on June Jones, (the Clay Jr. and plaintiffs), Miller moved to dismiss the Miller suit on the appealed the March ruling. They grounds that the Aldermen-AAVK suit was sought to appeal have the consolidated with pending still before the district court and the appeal the AAVR that was currently then Aldermen in both pending before this Court. The consolida- City suits. On June renewed this tion motion was stayed denied and this Court motion, that, contending given grant now proceedings in the Miller pending suit reso- summary judgment to the in the appeal. lution of the AAVR suit, Aldermen-AAVK the Miller suit was summarily This Court grant affirmed the judicata barred res and stare decisis. ing summary judgment motion in the On June in the suit, Aldermen-AAVK Aldermen-AAVñ see American African plaintiffs, the Aldermen Voting Rights Fund, well as the Legal Inc. v. Defense Voting Rights Villa, (8th African American Legal Cir.1993). De- 999 F.2d 1301 The 59(e) Fund, fense filed a Rule Supreme motion to alter Court vacated this decision and re or summаry judgment amend the June 17 manded for reconsideration of other issues parties mootness orders. The pertinent light here in of Johnson v. — agreed stay Miller suit briefing DeGrandy, U.S.-, 2647,129 — 59(e) suit (1994). until the Rule motion the Alder- L.Ed.2d Tyus Bosley, See upon. -, mexi-AAVR suit was ruled The Rule U.S. 129 L.Ed.2d 888 59(e) (1994). motion remand, was denied on November Upon again up this Court 59(e) Upon the denial of the Rule grant summary held the to the motion, City. Miller suit Voting Rights American African moved for Fund, leave to file an com- Legal Villa, amended Inc. v. Defense plaint, (8th dropping Cir.1995), Aldermen from 1345 suit; adding plaintiffs, -, two new William Jr., Clay, L. an African-American Following decision, Missouri this Court vacated Pritchett, F.2d that suit. See Oldham in the Miller suit stay proceedings Cir.1979). 276 n. involv- the issues partiеs to brief directed summary judgment grant of ing the requirement to the addition case.3 sought to the second party, privity or in with a precluded was a II. id., lawsuit, party, original to the see applica prerequisites other are four A. (1) sought preclusion; of issue the issue tion identical dilution raise Both suits precluded must be the same as to be map boundaries Each contends claims. (2) action; prior in a the issue must involved by frag Rights Act Voting § 2 of the violate actually litigated ac have been voters, thereby diluting black menting black (3) tion; must have deter the issue been strength. Each also contends voting judgment; and by a valid and final mined strength violates the voting of black dilution essential must have been the determination At Fifteenth Amendments.4 Fourteenth Farmland In prior judgment. See issue, then, the Miller suit is is whether Morrison-Quirk Corp., 987 Grain dus. v. because the preclusion5 issue barred (8th Cir.1993). F.2d litigated and in that suit claims raised require the last four not contest do by Aldermen-AAVK necessarily the decided are met in this case. preclusion ments it is.6 We hold that suit. issue, therefore, the Mil is whether The sole Aldermen privity ler a preclusion, once issue Under plaintiffs should so that the Miller plaintiffs, law of fact or decided an issue court has Aldermen by result the bound be judgment, “the determina necessary to its AAVR suit. subsequent action be in a is conclusive tion a the same or parties, whether on tween B. (Second) of claim.” Restatement different judicial in concerns of is rooted (1982); v. Preclusion also Judgments 27 see Simmons Cir.1996). noted, (8th this era of economy. “[i]n As we have O’Brien, 1093, 1095 77 F.3d posi- a the courts have dockets relitigation of overcrowded also bar preclusion will Issue relitigation of duty needless to restrict who, although party a to tive by one an issue 1127, Larsen, F.2d 517 Gerrard v. party a to issues.” privity original is preclusion concepts: of two supplement ther to consist appellants’ to grant motion 3. We preclusion.” preclusion” and "claim Shaw v. "issue include the decision in the record to 2816, judg- Reno, 630, preclusion to the effect of a L.Ed.2d refers 113 S.Ct. 125 Issue 509 U.S. (1993). rеlitigation foreclosing a matter that ment in 511 preclu- litigated Claim and decided. has been the vote also contends that Miller suit The judgment in fore- effect of a refers to the sion substance, § 1983. In violates 42 U.S.C. dilution closing litigation that never has of a matter Rather, however, separate claim. it this is not a litigated, of a determination been Rights Voting Act and subsumed under is earlier suit. advanced in an should have been it claims; Fifteenth Amendment Fourteenth and encompasses the preclusion therefore Claim "a appears to be no more than to us this claim merger bar. law "per- pleading designed to change" in cosmetic Educ., 465 Bd. Migra v. Sch. Dist. Warren issues.” рetuate litigation the same basic 1, 892, n. 79 894 77 n. 104 U.S. (8th O’Brien, 1097 v. 77 F.3d Simmons omitted). (1984) (citations L.Ed.2d 56 Cir.1996). pre applied claim 6.Although court the district preclu- Regarding interplay issue between Cily's granting for sum motion clusion when Supreme preclusion, Court sion and claim preclusion mary judgment, believe that issue we has noted: preclusion appropriate doctrine is the adjudication preclusive effects of former may affirm the district case. We nevertheless court, times, and, varying seem- are discussed in may court’s affirm the district for "we terminology, to conflicting attributable ingly sup any ground summary judgment on grant of concepts preclusion over evolution of Moulder, 30 F.3d White v. ported record.” collectively years. are referred to These effects denied,-U.S.-, 1994), Cir. 82 "res the doctrine of commentators as most (1995). 641 130 L.Ed.2d analyzed 115 S.Ct. judicata fur- judicata.” is often Res (8th Cir.1975); [ujnder see also judicata, Montana the federal of res law a States, 147, 153, person may United bound even (preclusion though party not a if one of the resources”). judicial doctrines closely the suit is so aligned with “conserven his inter- Additionally, preclusion protect doctrines as to be representative. ests his virtual defendants, by relieving them of “the ex Although Id. at 719. principle gener- this is pense attending multiple and vexation law ally accepted, sharply courts are divided on Gurley, suits.” United States 43 F.3d implement how to preclu- strand of issue (8th Cir.1994) Montana, (quoting sion. 973), 99 S.Ct. at cert. de —nied, -, permit Some courts a wide use of virtual L.Ed.2d 33 representation, inquiring whether there ex- ists relationship a substantial between However, process due concerns are party nonparty, such party ade- present party sought preclud when the to be quately represented the interests of the non- party ed was not an actual in the first law See, party. e.g., Hunt, NAACP v. suit. privity Because based on (11th Cir.1990). Because of the fact- an exception “deep-rooted historic tra intensive nature inquiries, of these there is everyone dition that day should havе his own no clear test that employed can be to deter- court,” Ala., County, Richards v. Jefferson representation mine if virtual is appropriate. — U.S.-,-, 1761, 1766, 135 evident, however, It is that because virtual (1996) (citation omitted), L.Ed.2d 76 courts representation rests on the notion that it is must relationship ensure that between deprive fair nonparty day court, of his original suit and the “virtual pronounced eq- has sought precluded to be suit later is uitable dimension.” Gonzalez v. Banco Cent. sufficiently justify Thus, preclusion. close to (1st Corp., 751, Cir.1994). 27 F.3d 761 A process “the prevent due preclusion clauses nonparty will be bringing barred from his relationship when the party between the only claim when “the of balance the relevant non-party becomes too attenuated.” South equities tips preclusion.” in favor of Id. Airlines, west Airlines Co. v. Texas Int’l 546 (5th 84, Cir.), denied, F.2d 95 cert. 434 U.S. Other permit courts would nonparty a to 832, 117, (1977). 54 L.Ed.2d 93 by prior judgment bound a theory under a of representation virtual very limited, in generally recognized There are three ‍​‌‌‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​​​​‌​‌​‌‌​​‌​​‌​​​​‌‌‌‌​‌‍technical situations. For example, in Pollard categories nonparties of who will be consid Cockrell, (5th v. Cir.1978), 578 F.2d 1002 privity ered in party with a prior to the “[vjirtual court noted that representation de- action by and who will prior be bound a express mands existence of an implied or (1) adjudication: nonparty a who controls the legal relationship in parties which to the first (2) original action; a successor-in-interest suit are accountable non-parties who file a a party; nonparty a whose subsequent raising issues.” identical Id. adequately interests represented by were a 1008; States, see Klugh also v. United 818 original generally action. See 18 Cir.1987) (same). F.2d 300 Exam- Wright, Cooper, Miller & Federal Practice & “ ples such a of relationship would be ‘estate 4451, 4454-57, §§ Procedure: Jurisdiction by administrators, beneficiaries bound presi- (1981 and 4462 Supp.1990). & This case dents and by sole compa- stockholders their focuses on category. the third nies, parent corporations by their subsidiar- ” Preclusion adequate representa ies, on based a trust beneficiary the trustee.’ tion, representa Pollard, otherwise known as “virtual 578 F.2d at (quoting 1008-09 South- tion,” given its Co., clearest in 97). statement west Airlines 546 F.2d at Under Aerojet-General Askew, Corp. view, 511 F.2d this representation virtual is little more (5th Cir.), 710 denied, 423 96 U.S. than the doctrine of rep- based on S.Ct. In that resentation that historically has accept- been case, the court noted that ed courts.

455 of that traditional definition term.” within the give that wider courts agree those We This liberal Id. representation. to virtual use competing con- accommodates

use better squarely representation falls Virtual pro- economy and due judicial siderations exception. apply will this A court within con- cognizant of the are Although we cess. it representation only when finds virtual Pollard decision—that underlying the cerns relationship special be some existence completely will of this doctrine use broad justifying preclusion. parties tween party is entitled that a the notion eviscerate essence, finding parties two is a that these day in court—'we believe to his Gerrard, 517 F.2d at privity. are through a better addressed are concerns say (“Privity merely a word used to ... is to the facts application of doctrine careful relationship the one who is between limiting by artificially than given case in a close the record and another is a scope of the doctrine. the res within enough to include other by the recent not is altered This conclusion (quoting v. United judicata.”) Bruszewski Richards, supra. Supreme Court decision (3d Cir.) (Goodrich, States, 419, 423 Richards, group permitted the Court J., concurring), cert. municipal tax as an challenge a taxpayers (1950)). When, 95 L.Ed. 632 S.Ct. property, deprivation unconstitutional Richards, strangers to parties are the two taxpayers group of though an earlier even other, virtual would then each and lost. The already litigated this issue had However, where there is appropriate. not be general rule reaffirming the began by Court parties, relationship special between “ ‘one is not bound analyzing the factors listed after determined in which he is litigation in a personam below, privity, then the party-Richards, designated as a inapposite. simply is Richards at-, at 1765-66 Lee, Hansberry (quoting C. (1940)). Be- L.Ed. “mere the two sets cause equitable and fact-inten Due to the at-, another,” ‘strangers’ to one id. representation, virtual nature of sive concluded that the the Court determining applicability no clear test provide not did plaintiffs to the earlier suit are, however, several There of the doctrine. up for the to “representation sufficient make First, identity of inter principles. guiding neither plаintiffs] set of [the fact second necessary, parties the two is between ests in, to opportunity nor had the participated Mann v. though not alone sufficient. (cita- in, Id. participate [earlier] action.” (11th 999, 1003 Ga., Albany, 883 F.2d City of omitted). tions Cir.1989). be considered to Other factors However, impor- did note one the Court pri- relationship between the a close “include party to general rule: a exception to the tant parties; present participation or of the result ease will be bound the second acquiescence; and apparent litigation; not a to which it was an case earlier deliberately ma present party whether the ‘privity’ there is it can be said that “when of the first avoid the to effects neuvered case and a party to the second between Chicago, 766 Petit action.” of judgment.” by an earlier party who is bound (N.D.Ill.1991) (citing F.Supp. at-, Although the 1766. Id. Practice & Cooper, Federal Wright, Miller & examples of what could provided some Court 4457). Jurisdiction Procedure: general privity, it did not offer constitute adequa is factor to consider Another Rather, the Court of that term. definition Gonzalez, 27 F.3d cy representation, of ‘privity’ is now “the term acknowledged that of incen terms is best viewed relationships which be- various used to describe is, party “ade- That one litigate.7 to come not have tivе litigants that would tween errors, strategy possible as some trial representation concluding adequacy trial In see, 'Wright, e.g., argued, litigate rather than actual commentators to incentive to refers quately represents” the inapplicable interests of another in this context would encourage parties when the interests of the two fence-sitting, are nonparties would bene- very closely aligned and the first had a fit if were successful but would strong protect incentive to penalized interests of not if the lost. party. the second D. Finally, the nature of the issue We conclude that issue based on public private raised —whether a law issue or representation virtual appropriate is important. law issue —is Although virtual In reaching conclusion, ease. we are representation may private be used in the persuaded by Petit, reasoning supra. context, particularly law its use is appropri Petit, city Chicago, response to a public ate for law issues. Supreme As the brought by Depart- the United States noted, recently Court when a challenges case ment alleging of Justice discrimination ‍​‌‌‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​​​​‌​‌​‌‌​​‌​​‌​​​​‌‌‌‌​‌‍in “public action that has an indirect hiring blacks, promoting Hispanics, and impact interests,” Richards, party’s] on [a women within Chicago Depart- Police -, U.S. at 116 S.Ct. at due ment, developed еxam, sergeant’s a new con- process concerns are lessened. In this situa- sisting test, examination, of a written oral tion, courts have “wide latitude to establish performance Petit, evaluation. See procedures ... limit judi- the number of ” F.Supp. Many at 609. applicants white cial proceedings.... Id. sergeant sought to intervene in the continu- Further, public eases, we note that in law suit, ing alleging city manipulated standing po number the test scores in minority favor of appli- tentially If limitless. were allowed to cants. permitted, Intervention was and sub- continually already decided, pub raise issues sequently many of the intervenors’ claims lic law claims “would immortality.” аssume prejudice. dismissed with Id. at 610. Angeles Los Branch NAACP v. Angeles Los Having redress, failed many to obtain Dist., Sch. Unified intervenors, along with additional white Cir.1984) (applying representation virtual officers, police Petit, filed the action rais- preclude plaintiff raising from deseg school ing the previously same claims dismissed. claim), regation judicata The court held that res all barred Con claims, including those of who had judicial economy cerns of and cost to defen intervened the earlier suit. Id. at 612- dants, present every partic while

ularly important in this context. There is important another consideration: in pub applying virtual doc- context, wins, lic law plaintiff if the trine, defini the court relied on several factors. everyone tion Holding preclusion benefits. The court first mentioned that the claims Cooper, Miller & Federal Practice & Procedure: tual framework in which —a Jurisdiction we are influenced party two nonparty interests, and share identical First, applying observations. represen- virtual provides and that weighing for notice and a tation, perform preliminary courts must a rela- equitable considerations —should be treated tionship inquiry: party’s whether one interests differently party regard. from a aligned are so with those of another that one B, party Id. proxy party If A is a then we party proxy can be considered a for the other party should hold B to the same standards as we party. litigate may While incentive to have some would apply hold A. repre- To not virtual bearing parties’ on whether the two interests are sentation when counsel is deficient would en- aligned, strategy pos- considerations of trial and courage fence-sitting: nonparty the will benefit errors, they sible trial bearing have little wins, party plaintiff if the party plain- but if the relationship parties, on the between the are ex- loses performance, tiff due to counsel's deficient inquiry. ternal to this suit, nonparty the thereby could tactically refile Second, litigation, maneuvering we note that "in civil the around perfоr- counsel’s deficient lawyer routinely Thus, sins of the upon are visited applying preclusion the mance. in this situa- Gonzalez, client.” such, 27 F.3d at 762 n. 12. goal judicial As tion not reinforces the econ- omy, prevents but it also an end-run around the why [w]e do not nonparty understand a responsible who rule that for the acts of comes within the doctrinal framework for vir- their counsel. Petit, identical, as in there is importantly, More and suits were in the two raised taking place in maneuvering tactical Miller. cases. argued both counsel the same that strategy dis- to circumvent trial In an effort took notice the court significantly, More the agreements, Aldermen filed the taking place: maneuvering the tactical suit, simply adding plaintiffs. new Miller express an cannot avoid The intervenors directly the This second contravenes lawsuit their that order dismissed federal court preclusion doctrines. policies supporting the by adding non- prejudice the claims with the victory by Aldermen A the A refiling claim. find- and intervenors directly Aldermen-AdVH suit would policy the privity comports with ing of plaintiffs. On the other the benefited Miller judicata. If the intervenors res behind hand, representation, a loss without virtual police white originally, all of the succeeded plaintiffs would no the Aldermen cause the have benefited —even officers would plaintiffs. a harm to the Miller such hand, if the On the other non-intervenors. situation, no incentive to intervene. did, lost, they non- which intervenors Quite contrary: holding preclusion inap- deter- obtain second cannot intervenors not plicable assures that a would inter- separate action. by bringing this mination vene, for it allow various members of would encourage “fence- an action would Such bring separate group to lawsuits coordinated and discourage principles sitting” and group hope in the one member that judicata was of res policies doctrine successful, eventually benefiting the would designed promote. significant This cost group. entire entails alignment of the сlose at 613. Given Id. judicial system “diseourage[s] and the first suit intervenors between interests polices of res principles the doctrine nonintervenors, maneu- and the tactical designed promote.” judicata was Id. court held taking place, the district vering already taken had that the nonintervenors is Finally, the Miller case raises an that apple. litigative their bite at the in favor of public is another factor sue of law are similar to present in the case The facts plaintiffs do not al preclusion. Miller First, in Petit. both Aldermen- those lege they have been denied individu Miller suit similar and the raise AAVR suit Rather, they allege that the right to al vote. claims, overlap in plaintiffs was an and there general has strength of black vote Further, attorney two suits. between the do diluted. Because been Miller plaintiffs’ counsel Miner was private allege they “have a different as counsel and was substituted he public,” in common with right not shared well April Aldermen-AAFR suit Educ. of Bratenahl,64 Stromberg Board motion summary judgment City’s before the 18 O.O.3d N.E.2d Ohio St.2d suggest, at least factors granted. These (cited approvingly Rich — relationship exists be- a close partly, 1768), at-, ards, S.Ct. id. present parties. See law, tween public an issue of plaintiffs raise at 612. process concerns attendant thus the due preclusion are less application of a broad Carter, po- plaintiff note that We further Richards, at-, ened. Jones, Clay and all Jr. and tential Further, given public at 1768. Afri- plaintiffs were elected of the Aldermen case, preclusion if we held nature They all shared the officials. can-American could “assume immor inapplicable, this case African- of the concern: the dilution same NAACP, 750 tality,” Angeles Branch Los organiza- Louis. This in St. American vote fence-sitting would en F.2d at commonality suggests special com- tional Op. couraged. supra, at See Hunt, F.2d at monality See of interests. preclu- that (where plaintiffs contend plain- The Miller in suit and plaintiff first the Aldermen inappropriate is because legislators and sion state in suit were tiffs second represent their adequately NAACP, plaintiffs did factor this was of the members interest). They note that trial. first interests commonality of demonstrating HENLEY, counsel in the Aldermen-AAVR suit failed to Judge, Senior Circuit concurring in in opposition file a formal motion to the result. summary judgment argue motion. Plaintiffs panel’s very opinion is well written diligent prosecu-

that an absent effective and seems to arguments make the best of the trial, tion of the case the first virtual in finding preclusion And, favor of here. on inapplicable. disagree. is We balance, agree I panel’s result: present by previous case is barred above, adequate representation As noted is Nevertheless, litigation. the case is a close best in litigate. viewed terms of incentive to one and I am uncomfortable with some of the supra plaintiffs note 7. The Aldermen panel’s language. Accordingly, this brief every opportunity had incentive and fully to my statement of reasons for concurring litigate the claims raised the Aldermen- in the result is tendered. required. AAVR suit. No ismore See Sim- general, I have some concern about how mons, (when n. 4 assessing at 1097 far we should go extending preclusive opportunity whether had full and in- effect to cases of represen- so-called “virtual case, litigate centive to there is nо further panel out, tation.” As points process due requirement plaintiff actually take ad- provide considerations an outer limit on vantage opportunity). of that scope preclusion. thing It is one hold to that a in privity principles under Given the counseling factors in favor of property contract or by law should be bound preclusion, we determine that the Aldermen prior the results of litigation. quite It is plaintiffs adequately represented the inter- matter, however, another say strang- plaintiffs, ests of the Miller and thus the two prior ers to litigation should be bound plaintiffs privity. sets of are in The Miller solely they would raise the same plaintiffs vicariously day hаd their issue or favor legal position. the same court and their “one apple.” bite at the As specifically, ease, More in this I believe it such, they precluded from litigating those question is close fully whether our result is by issues that were decided the Aldermen- consistent with language spirit AAVR suit.8 Supreme Court’s decision this term in Rich- Alabama, ards v. County, Jefferson -, III. L.Ed.2d 76 Richards, by the Court held that a suit We conclude that the Aldermen persons employed in County Jefferson chal- adequately represented the interests of the lenging constitutionality of an occupation Miller and thus acted as their virtu- tax by was not principles judi- barred of res representatives during al the Aldermеn- though cata even (by such, AAVR suit. As the Miller are Birmingham and several individual taxpay- precluded from relitigating those ers) issues that upheld had the constitutionality litigated in the Aldermen-AAFñ suit. same tax. The Court said that taxpayers We affirm the grant district court’s of sum- in the second suit could not be bound mary judgment. decision on the merits in the first be- 8. The Miller (1978), contend that 57 L.Ed.2d 1160 case inapplicable given changes in this case intervening legal was no change, argued by voting rights jurisprudence occasioned Shaw plaintiffs. the Miller Shaw was decided June on Reno, appeal 1993. The AAVR first was not decid- (1993), - Johnson, L.Ed.2d 511 Miller v. August ed until and the appeal, second -, remand, following was not handed down until (1995), filing both dеcided after the of the com- later, nearly years Thus, May two plaint in the Aldermen-AAVRsuit. any change occasioned opin- law the Shaw Although fully ion was appellants some courts have declined available apply in AAVR. Johnson, preclusion principles given though As intervening an for even it was handed down change law, see, voting AAVR, rights e.g., appeal Parnell after the v. it is an extension Bd., Rapides Parish Sch. Shaw and thus does not constitute a sufficient Cir.1977), intervening U.S. change in the law. judg- though was a of, tricting plan even nor “notice neither they received cause in the first suit. litiga- ment on the merits prior in” the sufficient — at-, at 1769. tion. stated, I concur in the For the reasons result. directly ad- does not panel opinion and con- “notice” here the issue dress satisfy necessary to all that is

cludes that Richards prong of representation”

“sufficient had the first suit that ‍​‌‌‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​​​​‌​‌​‌‌​​‌​​‌​​​​‌‌‌‌​‌‍the par- issues the raise the same

“incentive” to raise. Howev- suit would in the second

ties appears to

er, opinion Supreme Court’s just incentive: something more than

require binding effect on to have proceeding, prior “a America, Appellee, UNITED STATES ‘so at least have to be parties, would absent ... to insure applied devised Kerry JOHANSEN, Michael as to insure the is so conducted litigation full Johansen, Appellants. is- of the common consideration and fair ” at-, Richards, sue.’ No. 95-3996. Lee, Hansberry quoting, 115, 118, L.Ed. Appeals, Court of United States added). (emphasis Eighth Circuit. propo- misgivings about Dеspite these June Submitted representation” “virtual sition of Aug. Decided language of the general and some the facts I believe that on panel’s opinion,

here, and “suf- requirements of “notice” satisfied. representation” were

ficient second suit

particular, litigation, notice of the first

clearly were on plain- had also been some of them Moreover, the same suit.

tiffs plaintiffs in both ac- represented

counsel identity of counsel I that this

tions. believe the) (at plaintiffs also least some representation” “sufficient

suggests that the process was met. of due

requirement out,

addition, points it panel opinion as the filing principal reason

appears was to evade the second suit

in the first suit. however, noted, was that the first suit

It is action, litigation a class

not filed as summary judg- motion for disposed of on

ment, only one plaintiffs there filed ‍​‌‌‌​‌‌‌‌‌​‌‌​​‌‌​​‌​​​​​​‌​‌​‌‌​​‌​​‌​​​​‌‌‌‌​‌‍and that summary opposing and no brief

affidavit facts, at all it is not

judgment. On these plain- Richards a new

clear to me that under on notice group

tiff or —not litigated in the first suit rights their would be represented there —would be adequately

nor dis- challenging the St. Louis from

barred

Case Details

Case Name: Sterling S. Miller v. Vincent Schoemehl

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 16, 1996

Citation: 93 F.3d 449

Docket Number: 93-1811

Court Abbreviation: 8th Cir.