118 F.3d 122 (2nd Cir. 1997), 1465, Ferris v. Cuevas

Docket Nº:1465, Docket 96-9406.
Citation:118 F.3d 122
Party Name:Joseph FERRIS and Mildred Morrison, individually and on behalf of all signers of the initiative petitions filed pursuant to Section 40 of the New York City Charter, Plaintiffs-Appellants, v. Carlos CUEVAS, as City Clerk of the City of New York, and the Board of Elections of the City of New York, Defendants-Appellees.
Case Date:July 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 122

118 F.3d 122 (2nd Cir. 1997)

Joseph FERRIS and Mildred Morrison, individually and on

behalf of all signers of the initiative petitions

filed pursuant to Section 40 of the New

York City Charter, Plaintiffs-Appellants,


Carlos CUEVAS, as City Clerk of the City of New York, and

the Board of Elections of the City of New York,


No. 1465, Docket 96-9406.

United States Court of Appeals, Second Circuit

July 3, 1997

        Argued March 31, 1997.

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[Copyrighted Material Omitted]

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        Charles W. Juntikka, New York City (Charles Juntikka & Assoc., P.C., of counsel), for Plaintiffs-Appellants.

        Alan Beckoff, Office of Corporation Counsel of the City of New York, New York City (Paul A. Crotty, Corporation Counsel of the City of New York, Stephen J. McGrath and Masako C. Shiono, of counsel), for Defendants-Appellees.

        Before OAKES, KEARSE, and McLAUGHLIN, Circuit Judges.

        OAKES, Senior Circuit Judge:

        Joseph Ferris and Mildred Morrison appeal the judgment entered October 30, 1996, in the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., Judge, denying their request for a preliminary injunction and dismissing their complaint. Appellants had requested that the court issue an injunction ordering the City Clerk and the Board of Elections for the City of New York to place their proposed initiative petitions on the November 5, 1996, ballot. The court summarily denied the petition for injunction, and dismissed the claim.

        We affirm.



        In April of 1996, three New York attorneys, Charles Juntikka, Dan Wolf, and Craig Heller, began organizing a referendum campaign to reform the New York City Charter's campaign finance reform system. They formed a non-profit corporation, Citizens for Debates & Limits on Campaign Contributions, Inc. ("CDLCC"), of which Juntikka was President. CDLCC employed college freshmen and high school seniors to gather signatures for the referendum. On September 6, 1996, CDLCC submitted 139,460 signatures on two different initiatives to the City Clerk. One petition provided for the reduction of limits on campaign contributions and increased the public financing for all candidates voluntarily participating in the City Charter's campaign finance reform system. The other required all city council candidates to participate in debates if they received public campaign financing under the Charter's reform system; all other elected city officials, including the borough presidents and the mayor, would also be required to debate if they received public funds.

        On September 16, 1996, the City Clerk notified Juntikka that he refused to certify the initiative petitions on the grounds that there were insufficient valid signatures, and that the topics of the petitions were not the proper subject matter for initiative petitions under § 40 of the City Charter. On September 19, Juntikka, Charles Monaghan, and CDLCC filed a proceeding in New York County Supreme Court pursuant to Article 16 of the Election Law and § 40 of the Charter, seeking to have the initiative petitions declared valid and certified for the ballot. The state plaintiffs, acting individually and purporting to act on behalf of all signers of the petitions, claimed that the petitions complied with all provisions of applicable law, contained a sufficient number of valid signatures, and presented appropriate subjects for a referendum. They were granted an order to show cause by the Supreme Court for New York County for the requested relief. The state court matter was not a class action. No constitutional issues were raised, briefed, or argued before the state courts.

        On October 22, 1996, the Supreme Court, Shainswit, J., dismissed the petition. The court ruled that all of the signatures on the petitions were "presumptively valid" because the Board of Elections had failed to submit a mandatory detailed report to support its conclusion

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that the number of signatures was inadequate, and therefore held that there were a sufficient number of signatures to place the initiatives on the ballot. The court nevertheless refused to certify the petitions, holding that they were legally invalid on other grounds, including the ground that campaign finance reform was not the proper subject of initiative petitions. Juntikka v. Cuevas, No. 116778/96 (N.Y.Sup.Ct. Oct. 22, 1996). 1

        The state plaintiffs appealed. On October 24, 1996, after oral argument, the Appellate Division, First Department, affirmed the Supreme Court's decision solely on the ground of improper subject matter, stating only that "[t]he County Clerk correctly rejected the initiative petitions inasmuch as the proposed amendments are not the proper subject of a referendum." Juntikka v. Cuevas, 232 A.D.2d 301, 648 N.Y.S.2d 558 (1st Dep't 1996). Juntikka requested leave to appeal, which was denied on October 29, 1996. Juntikka v. Cuevas, 88 N.Y.2d 817, 651 N.Y.S.2d 406, 674 N.E.2d 336 (1996).

        Soon after, Joseph Ferris, a former state legislator, and Mildred Morrison ("Appellants") filed action in the Southern District of New York, requesting both a declaration that the actions of Cuevas and the Board violated their First Amendment rights and a preliminary injunction directing Cuevas and the Board to place the proposed initiatives on the November 5, 1996, ballot. Appellants, who were represented by Juntikka, filed the action individually and on behalf of all signers of the initiative petition. The court held a hearing on Appellants' Order to Show Cause on October 29, 1996, and summarily denied the application. In a judgment filed the following day, the court dismissed the complaint. Appellants filed Notice of Appeal on October 29, 1996. 2 Judge Jacobs of our court denied Appellants' motion for a stay and expedited appeal on October 29, 1996, as did a panel of this court, following oral argument, on November 1, 1996.



  1. Standard of Review

            We review the district court's denial of a preliminary injunction for an abuse of discretion. See Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997); International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70 (2d Cir.1996). "An abuse of discretion exists when the district court has made an error of law or of fact." Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir.1990). 3

  2. Res Judicata

            Cuevas and the Board contend that, having failed to argue a theory of federal constitutional law in the prior state action, Appellants are barred by the doctrine of res judicata from bringing this action to litigate the First Amendment claim. 4 Because we

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    give preclusive effect to a state court judgment whenever the courts of that state would do so, 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4469, we look to the law of New York regarding res judicata.

            "... Res judicata gives 'binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein.' " Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277, 317 N.Y.S.2d 315, 320, 265 N.E.2d 739, 743 (1970) (quoting In re Shea's Will, 309 N.Y. 605, 616, 132 N.E.2d 864, 868 (1956)). "[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy." O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688, 429 N.E.2d 1158, 1159 (1981). See Cornwall Warehousing, 656 N.Y.S.2d at 330; see also, Reilly v. Reid, 45 N.Y.2d 24, 407 N.Y.S.2d 645, 379 N.E.2d 172 (1978) (observing that the "policy bases for Res judicata, in the sense of claim preclusion, do not permit easy definition of the 'same cause of action,' " and concluding that different legal theories generally will not "permit relitigation of claims based on the same gravamen," id., 45 N.Y.2d at 28-29, 407 N.Y.S.2d at 647-48, 379 N.E.2d at 174-75); Restatement (Second) of Judgments [hereinafter Restatement] § 24(1). "[U]nder the 'transactional analysis' approach adopted by the Court of Appeals, the doctrine of res judicata also operates to preclude the litigation of matters that could have or should have been raised in a prior proceeding arising from the same 'factual grouping,' 'transaction,' or 'series of transactions.' " Board of Managers of Windridge Condominiums One v. Horn, 234 A.D.2d 249, ----, 651 N.Y.S.2d 326, 327 (2d Dep't 1996) (citing Smith v. Russell Sage College, 54 N.Y.2d 185, 192-93, 445 N.Y.S.2d 68, 429 N.E.2d 746 (1981)); see also, Reilly, 45 N.Y.2d at 29, 407 N.Y.S.2d at 648, 379 N.E.2d at 176; Koether, 213 A.D.2d at 380, 623 N.Y.S.2d at 329-30; Restatement § 24(2).

            Following a valid final judgment, therefore, res judicata bars future litigation between the same parties, or those in privity with them, on the same cause of action. Hodes v. Axelrod, 70 N.Y.2d 364, 372, 520 N.Y.S.2d 933, 937, 515 N.E.2d 612, 616 (1987); Triboro Fastener, 653 N.Y.S.2d at 961. We thus treat the claim at bar as being the "same" claim as the prior state action because it arises from the same set of facts and seeks the same remedy, despite the different legal theory advanced. The critical remaining question, then, is whether we ought to treat the prior state plaintiffs and these federal plaintiffs as though they are the "same" or in privity with each other. If they are, this action is precluded by res judicata.


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