Lionel Gustafson v. The Honorable Adrian Johns , 213 F. App'x 872 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 9, 2007
No. 06-13508 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00352-CV-CG-C
LIONEL GUSTAFSON,
THOMAS M. BROWN, et al.,
Plaintiffs-Appellants,
versus
THE HONORABLE ADRIAN JOHNS,
THE HONORABLE ALFRED Q. BOOTH,
et al.,
Defendants-Appellees,
LOWELL BARRON,
HENRY (HANK) SANDERS,
et al.,
Intervenor-Defendants-
Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 9, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellants, nineteen Alabama voters, filed suit challenging Alabama’s 2001
legislative redistricting plans, Acts 2001-727 and 2001-729. (Ala. Code § 29-1-2.3(2001) and Ala. Code § 29-1-1.2 (2001), respectively). Appellants claim that the
redistricting plans: (1) violate the constitutional guarantee of one-person, one-vote;
(2) constitute illegal partisan gerrymandering; and (3) violate Appellants’ First
Amendment right to the freedom of association. After conducting a bench trial, the
three-judge district court1 held that all Plaintiffs’ claims were barred under the
doctrine of res judicata and dismissed Appellants’ claims with prejudice. This
appealed ensued.
1
Pursuant to 28 U.S.C. § 2284(a), a three-judge federal district court was empaneled to
hear this case. Section 2284(a) states that “[a] district court of three judges shall be convened
when otherwise required by Act of Congress, or when an action is filed challenging the
constitutionality of the apportionment of congressional districts or the apportionment of any
statewide legislative body.”
2
BACKGROUND
On June 16, 2005, Appellants brought this lawsuit against Alabama probate
judges to challenge the constitutionality of the 2001 Alabama redistricting plans.
The district court allowed Governor Bob Riley to intervene on behalf of the people
of Alabama, and Senator Lowell Barron, Senator Hank Sanders, and
Representative Seth Hammett also intervened in their individual capacities.
Defendants filed a motion for judgment on the pleadings and Senator Lowell
Barron, Senator Hank Sanders, and Representative Seth Hammett (“Appellees”)
filed motions to dismiss.
The district court ordered a bench trial on the issue of res judicata, since the
motions to dismiss and the motion for judgment on the pleadings argued that
Appellants’ claims were barred by previous litigation that challenged the
constitutionality of Alabama’s 2001 redistricting plans. After reviewing the
extensive record in this case, the district court issued an order dismissing
Appellants’ claims based on res judicata. Gustafson v. Johns, 434 F.Supp. 2d 1246(S.D. Ala. 2006). In the order, the district court set forth a detailed history of the
litigation surrounding Alabama’s 2001 redistricting plans, and the key players
involved in that litigation. Id. at 1248-53. The most pertinent of these facts are as
follows.
3
In June 2001, two separate lawsuits were filed in federal court, Barnett v.
Alabama and Montiel v. Davis. Both lawsuits alleged that Alabama’s legislature
had failed to redraw its districts. Barnett and Montiel were assigned to the same
district court judge. After these lawsuits were filed, Alabama’s legislature
convened a special session to redraw the legislative districts, and the redistricting
plans were passed by Alabama’s Legislature, signed by the Governor, and passed
into law. In light of these developments, Alabama’s Attorney General moved to
dismiss both the Barnett and Montiel lawsuits, and the district court ordered the
plaintiffs in both cases to respond to the Attorney General’s motions. The Montiel
plaintiffs responded by amending their complaint and directly challenging the
constitutionality of the redistricting plans. The Barnett plaintiffs did not amend
their complaint, and the district court dismissed the case as moot. The Montiel
plaintiffs alleged that the 2001 redistricting plans violated the constitutional
requirements of one-person, one-vote and constituted illegal racial gerrymandering
by overpopulating white majority districts and thereby diluting their vote. The
district court granted summary judgment in favor of the defendants on both claims.
Montiel v. Davis, 215 F.Supp. 2d 1279, 1288-89 (S.D. Ala. 2002).
In the case before this Court, the district court found that the lawsuit was
being managed by a Litigation Management Committee (“Committee”) composed
4
of Jerry Lathan, Senator Stephen French, and Marty Connors. All three had ties to
the Republican Party of Alabama. The Committee instigated the present lawsuit
after the Supreme Court summarily affirmed a three-judge federal court’s decision
that Georgia’s state legislative reapportionment plans violated the one person, one
vote principle. See Larios v. Cox, 542 U.S. 947, 124 S. Ct. 2806, 159 L. Ed. 2d
831 (2004). The district court found that the Committee recruited the plaintiffs,
hired the lawyers, raised funds, and made litigation decisions. The district court
also found that Lathan, French, and Connors were the driving forces behind both
the Montiel and Barnett lawsuits.2 After conducting thorough analysis, the district
court concluded Appellants’ claims were barred based on the doctrine of res
judicata given the Montiel suit.
STANDARD OF REVIEW
We review de novo a district court’s conclusion to apply res judicata. Equal
Employment Opportunity Comm’n v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285
(11th Cir. 2004). The factual determinations underlying this conclusion are
accepted on review unless clearly erroneous. Richardson v. Alabama State Bd. of
Educ., 935 F.2d 1240, 1244 (11th Cir. 1991).
2
While the Barnett case was not resolved on the merits, the district court found that the
persons driving the Barnett lawsuit were fully aware of Montiel suit and acquiesced to the final
judgment in Montiel.
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JURISDICTION
As an initial matter, Appellees argue that this Court lacks jurisdiction to hear
this appeal, because the United States Supreme Court has exclusive jurisdiction
pursuant to 28 U.S.C. § 1253 to hear appeals from three-judge federal courts.
Section 1253 states:
Direct appeals from decisions of three-judge courts. Except as otherwise
provided by law, any party may appeal to the Supreme Court from an order
granting or denying, after notice and hearing, an interlocutory or permanent
injunction in any civil action, suit or proceeding required by any Act of
Congress to be heard and determined by a district court of three judges.
28 U.S.C. § 1253. However, in MTM, Inc. v. Baxley, 420 U.S. 799, 804, 95 S. Ct.
1278, 1281, 43 L. Ed. 2d 636 (1975), the United States Supreme Court carved out
an exception to § 1253, holding “that a direct appeal will lie to this Court under §
1253 from the order of a three-judge federal court denying interlocutory or
permanent injunctive relief only where such order rests upon resolution of the
merits of the constitutional claim presented below.” Appellees argue that in 1976,
a year after MTM was decided, Congress repealed the three-judge federal court
statute and enacted a new three-judge federal court statute. However, MTM has not
been overruled, and we are therefore required to follow its holding. Since a finding
that a plaintiff’s claim is barred by res judicata is not a resolution on the merits of
the constitutional claim, we have jurisdiction to hear this appeal. See Cash v.
6
Barnhart, 327 F.3d 1252, 1256 (11th Cir. 2003) (stating that a decision based on
res judicata is not a decision on the merits).3
DISCUSSION
In order for res judicata to bar Appellants’ claims “four elements must be
present: (1) there must be a final judgment on the merits, (2) the decision must be
rendered by a court of competent jurisdiction, (3) the parties, or those in privity
with them, must be identical in both suits; and (4) the same cause of action must be
involved in both cases.” I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541,
1549 (11th Cir. 1986). The parties do not dispute that the first two elements have
been met. Appellants dispute the district court’s findings that the third and fourth
elements were met. The district court found that the Appellants were in privity
with the Montiel plaintiffs under the doctrine of virtual representation. The district
court also found that this case and the Montiel case had the same causes of action.
A. Virtual Representation
The Montiel plaintiffs and the plaintiffs in this case are not identical;
therefore, the plaintiffs in the two cases must be in privity for res judicata to apply.
3
Appellees also argue that this case is governed by St. John v. Wisconsin Employment
Relations Bd., 340 U.S. 411, 71 S. Ct. 375, 95 L. Ed. 386 (1951). In St. John, the Supreme Court
did hear a direct appeal after a three-judge federal court barred a claim based on res judicata, and
this case has not been explicitly overruled. However, MTM, which was decided twenty four
years after St. John, carved out an the exception to § 1253 and provides the Supreme Court’s
most current reasoning on this issue.
7
Privity applies when a person, though not a party to the suit, has his interests
adequately represented by a plaintiff in the suit. Pemco, 383 F.3d at 1286. We
have recognized that privity can exist under the doctrine of virtual representation,
and the district court found that the facts established that Appellants in this case
were virtually represented by the Montiel Plaintiffs.
The doctrine of virtual representation “supports a finding of privity ‘when
the respective interests are closely aligned and the party to the prior litigation
adequately represented those interests.’” Jaffree v. Wallace, 837 F.2d 1461, 1467
(11th Cir. 1988)(citation omitted). We have employed the following factors to
determine if virtual representation exists between parties: (1) participation in the
first litigation, (2) apparent consent to be bound, (3) apparent tactical maneuvering,
and (4) close relationships between the parties and non-parties. Id. All of these
factors need not be found; “rather, we examine [the factors] in concert to determine
whether there is virtual representation.” Pemco, 383 F.3d at 1287. “Whether or
not a party is a virtual representative of another is a question of fact.” Id.Having reviewed both the district court’s order and the record, we cannot
say that the district court clearly erred in finding that Appellants were virtually
represented by the Montiel Plaintiffs. The district court engaged in an exceedingly
thorough analysis of the specific facts of this case and correctly applied them to the
8
virtual representation factors, and we find no clear error.4
However, we will further discuss Appellants’ argument that the district court
erred by rejecting this Court’s requirement that “legal accountability” exists
between parties and non-parties for virtual representation to apply. We have stated
that for virtual representation to apply, the party to the prior lawsuit has to be
“legally accountable” to the party in the subsequent lawsuit. Pemco, 383 F.3d at
1289. We described legal accountability applying to the following relationships:
“estate beneficiaries bound by administrators, presidents and sole stakeholders by
their companies, parent corporation by their subsidiaries, and a trust beneficiary by
the trustee.” Pollard v. Cocknell, 578 F.2d 1002, 1008-09 (5th Cir. 1978).5
The Montiel plaintiffs were not legally accountable to Appellants as
contemplated in Pollard. However, the district court made a distinction between
private law issues and public law issues. The district court concluded that
redistricting “is a public action that has only an indirect impact on a plaintiff’s
interest.” Gustafson, 434 F.Supp. 2d at 1257. The district court held that therefore
4
Appellants argue that the district court improperly applied the control theory in finding
privity between the parties. However, the district court did not use the control theory in
establishing privity; rather, it employed the theory of virtual representation.
5
In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981)(en
banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
9
a plaintiff need not have legal accountability to a plaintiff in a subsequent lawsuit
for virtual representation to apply. Gustafson, 434 F.Supp. 2d 1257 n.7. This
holding is consistent with United State Supreme Court and this Circuit’s case law.
In Richards v. Jefferson County, Alabama, 517 U.S. 793, 803, 116 S Ct.
1761, 1768, 135 L. Ed. 2d 76 (1996), the Supreme Court distinguished between
private causes of action and “other public action that has only an indirect impact on
[a plaintiffs] interests.” This Circuit, citing Richards, has also acknowledged the
difference between the two types of actions and stated that in public law actions the
Supreme Court has suggested “that there is less preclusion protection for a plaintiff
who complain[s] about . . . [a] public action that has only an indirect impact on his
interests.” Pemco, 383 F.3d at 1289. Since both this case and Montiel case
involve the public law issue of challenging Alabama’s redistricting plans, we find
that the district court did not err in holding that the plaintiffs in the two cases need
not have had a legally accountable relationship for res judicata to apply.
B. Same Causes of Action
Res judicata will only apply if the same causes of action were brought in
both cases. The same causes of action “extends not only to precise legal theory
presented in the previous litigation, but to all legal theories and claims arising out
of the same ‘operative nucleus of fact.’” Olmstead v. Amoco Oil Co., 725 F.2d 627,
10
632 (11th Cir. 1984). Claims filed in a second lawsuit are barred if they could
have been raised in the earlier proceeding. Davila v. Delta Air Lines, Inc., 326
F.3d 1183, 1187 (11th Cir. 2003). “The principal test for determining whether the
causes of action are the same is whether the primary right and duty are the same in
each case.” Durbin, 793 F.2d at 1549. In determining whether the causes of action
are the same, we look to the substance of the action, not their form. Id.Applying these principles to this case, we find that the district court did not
err in finding that the causes of action in the Montiel case involve the same causes
of action presented in this case. The causes of action in both cases arose out of the
same “operative nucleus of fact” - the 2001 redistricting plans. Furthermore, the
claims in both cases involve the same “primary right and duty” in that the causes of
action sought to invalidate the redistricting plans because the population deviations
within the plans created a situation where votes were given unequal weight. While
Appellants argue that their partisan gerrymandering claim could not have been
brought by the Montiel Plaintiffs since they resided in different districts, the district
court held, and we agree, that the partisan gerrymandering claim could have been
brought before. Appellants did not raise their partisan gerrymandering claim with
respect to specific districts; rather, their claim challenged the redistricting plan in
its entirety. In both cases, all the claims have the same substance in that they
11
challenge the redistricting plans based on population deviations. Therefore, the
application of res judicata is appropriate.6
Accordingly, we find that the district court did not err in finding that res
judicata barred Appellants’ claims and affirm.
AFFIRMED.
6
Appellants also argue that they should be allowed to challenge Alabama’s redistricting
plans on partisan gerrymandering grounds, because the law surrounding partisan gerrymandering
claims had become more clearly defined in light of the Supreme Court’s summary affirmance in
Larios v. Cox. While this Court has stated that res judicata is inappropriate when there has been a
substantial change in the facts or law, Jaffree, 837 F.2d at 1469, the decision in Larios does not
constitute a substantial change in the law. See Larios v. Cox, 300 F.Supp. 2d 1320, 1353 (N.D.
Ga. 2004).
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