Morris v. Gressette

Citation425 F. Supp. 331
Decision Date12 March 1976
Docket NumberNo. CA/75-1998.,CA/75-1998.
PartiesFrances MORRIS and Maxine Woods, Plaintiffs, v. L. Marion GRESSETTE, President Pro Tem of the South Carolina Senate, et al., Defendants.
CourtU.S. District Court — District of South Carolina

Armand G. Derfner, Charleston, S.C., Paul R. Dimond, Lawyers Committee for Civil Rights Under Law, Washington, D.C., for plaintiffs.

Kenneth L. Childs, Treva G. Ashworth, Asst. Atty. Gen., Randall T. Bell, Columbia, S.C., for defendants.

Before HAYNSWORTH, Chief Circuit Judge, RUSSELL, Circuit Judge, and HEMPHILL, District Judge.

DONALD RUSSELL, Circuit Judge:

The plaintiffs seek by this action to enjoin the enforcement of the South Carolina State Senate Reapportionment Act of 1972 (described as Act 1205 in the complaint)1 on the ground that such Act has never been validated as required by § 5 of the Voting Rights Act of 1965, § 1973c, 42 U.S.C.2 The background of the legislation under review and the litigation surrounding it is fully set forth in Harper v. Levi (1975) 171 U.S.App. D.C. 321, 520 F.2d 53. It is unnecessary to repeat it in any detail since the issues involved here are fairly narrow and the factual basis for them largely uncontroverted.

It is conceded by all parties that the challenged legislation is within the coverage of the Voting Rights Act of 1965 and that compliance with § 5 of that Act was a condition to the enforcement of such legislation. Compliance, giving the State either interim or permanent clearance for enforcement of the legislation, however, could have been effected by the State under § 5 in two ways. It could have filed an action for a declaratory judgment in the District Court for the District of Columbia or it could, through the State Attorney General, have submitted the legislation to the Attorney General of the United States for such clearance. If, in the declaratory judgment action, the legislation had been found not to offend the Voting Rights Act, or, if the Attorney General of the United States, within sixty days after submission to him, failed to interpose an objection to the legislation, the State could enforce the revised election procedure, unless and until there has been a successful proceeding to invalidate the state law on constitutional grounds.

In this case, the State chose, in line with the practice generally adopted by complying States under the Act, to follow the procedure of submitting the reapportionment legislation to the Attorney General of the United States.3 It is conceded the Attorney General did not interpose an objection to the legislation within sixty days after it was properly submitted to him. Actually, he advised the State formally within the sixty day period that he interposed no objection to the enforcement of the legislation. The plaintiffs herein, however, filed, about thirty days after the expiration of the sixty day period allowed the Attorney General to interpose objection, "a class action in the District Court of the District of Columbia seeking review, pursuant to Section 10 of the Administrative Procedure Act, or the decision of the then Attorney General to forego objection under Section 5 of the proposed reapportionment of the South Carolina Senate."4 The District Court held in that case that the action of the Attorney General was reviewable under the Administrative Procedure Act5 and, on review, concluded "that the Attorney General had not fulfilled his statutory obligation and ordered him to reconsider without regard to the prior court decision."6 On appeal, the jurisdiction to review was upheld and the finding that the prior failure to interpose an objection by the Attorney General was ineffectual to make the enforcement of the Act effective was sustained.7

At this point, the plaintiffs, armed with the decision in Harper returned to this Court. They contended that, on principles of collateral estoppel, Harper is conclusive on the issues of (1) the reviewability under the Administrative Procedure Act of the Attorney General's initial decision not to interpose an objection, (2) the invalidity of that initial action of the Attorney General, and (3) the effectiveness of the objection to the legislation, entered by the Attorney General, in obedience to the decision of the District Court in that case some year and a half after the submission to the Attorney General under the Act, as an absolute bar to enforceability of the state legislation, absent successful prosecution of a suit for a declaratory judgment of the constitutional validity of such legislation. Under this argument, if sustained, we would be limited in the action we could take to enjoining the enforcement of the Act itself for failure to comply with the requirements of § 5 and to ordering the State to submit in a reasonable time an acceptable substitute reapportionment plan or, in default of such submission, to promulgating an interim plan of reapportionment of our own. The defendants assert, on the other hand, that collateral estoppel is not applicable and that this Court is free to exercise its own independent judgment on the question whether the failure of the Attorney General to interpose within sixty days an objection automatically authorized the State to enforce the Act.

It is obvious from this statement of positions that the first problem to be addressed is whether the defendants are precluded by collateral estoppel from asserting, contrary to the conclusions reached in Harper v. Levi, that the conditions of § 5 were satisfied when the Attorney General failed to interpose an objection within sixty days after submission to him of the Act. We conclude they are not so precluded. Our reasons for this conclusion follow.

There is no dispute with the proposition that, contrary to the earlier view based on a mechanical application of the principle of mutuality, the modern rule is that a valid judgment in a prior suit, involving the same issues may, by way of collateral estoppel be asserted in a subsequent action by a stranger to the first suit against one who was a party or, in privity with a party, in that earlier action. And this is the rule of our Circuit, as stated in a number of decisions. State of North Carolina v. Chas. Pfizer & Co., Inc. (4th Cir. 1976) 537 F.2d 67; Thomas v. Consolidation Coal Company (4th Cir. 1967) 380 F.2d 69, cert. denied 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967) reh. denied 389 U.S. 1059, 88 S.Ct. 768, 19 L.Ed.2d 862 (1968); Graves v. Associated Transport, Inc. (4th Cir. 1965) 344 F.2d 894; and see, generally, 31 A.L.R.3d 1044, et seq.8 But this plea, it must be observed, is only available against persons who were either parties to the prior judgment or, in privity with such parties.9 The Supreme Court so declared recently in Blonder-Tongue v. University Foundation, supra, 402 U.S. at 329, 91 S.Ct. at 1443:

"Some litigants — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position. See Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940); Bernhard Bernhard v. Bank of America 19 Cal.2d 807 at 811, 122 P.2d 892 at 894."

The courts have, it is true, developed some exceptions to this rule by broadening the definition of privies under the rule to include persons not expressly named as defendants but whose conduct and intimate participation in the action justify their being so classified. But, "in order for a person not formally made a party to a suit to be estopped by the decision therein, he must either be in privity with a party thereto in the strict sense of the term or he must not only aid in the prosecution or defense of a suit, but have the right to participate and control such prosecution or defense." HyLo Unit & Metal Products Co. v. Remote C. Mfg. Co. (9th Cir. 1936) 83 F.2d 345, 350. And this is the rule as it has been applied consistently in this Circuit. Thus, in E. I. Du Pont de Nemours & Co. v. Sylvania I. Corporation (4th Cir. 1941) 122 F.2d 400, 405, it was held that "mere assistance in the defense of a case is insufficient to bind a person not joined as a party;" it is only "participation in the trial and control of the litigation," which will "bind the participant" who is not "a party to the record." The same rule was restated in the later case of Thaxton v. Vaughan (4th Cir. 1963) 321 F.2d 474, 479, wherein the Court stated that the "mere appearance as a witness, or the supplying of an attorney,"10 is insufficient to bind a non-party by the judgment;11 and that it is only "where a nonparty, * * * effectively controls the action" that "he may be bound by the result."12 Other courts used a somewhat different formula in phrasing the exception, declaring that where one though not a formal party to the litigation, "had the initiative in a recognizably substantial litigation," he may be bound under the doctrine of collateral estoppel by the judgment entered therein. Poster Exchange, Inc. v. National Screen Serv. Corp. (5th Cir. 1975) 517 F.2d 117, 123. And they have defined "initiative" in this sense as "choice of forum."13 Assuredly, if the criteria as stated in these cases are applied here, the defendants cannot be considered as either parties or privy to parties to the judgment in Harper v. Levi or bound by the decision in that case. They did not choose the "forum;" they did not assist in the defense; they did not participate in the trial; they were not consulted by the defendants on defense strategy; they did not appear as a witness or supply an attorney; and they unquestionably did not control the litigation in Harper. They were accordingly not within the exceptions to the rule as stated in Blonder-Tongue.

The plaintiffs argue, though, that the present defendan...

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