462 F.Supp. 518 (N.D.Ill. 1978), 78 C 1105, Brown v. Scott

Docket Nº:78 C 1105.
Citation:462 F.Supp. 518
Party Name:Roy BROWN et al., Plaintiffs, v. William J. SCOTT et al., Defendants.
Case Date:September 27, 1978
Court:United States District Courts, 7th Circuit, Northern District of Illinois

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462 F.Supp. 518 (N.D.Ill. 1978)

Roy BROWN et al., Plaintiffs,


William J. SCOTT et al., Defendants.

No. 78 C 1105.

United States District Court, N.D. Illinois, Eastern Division.

Sept. 27, 1978.

Ellyn A. Hershman, Harvey, Ill., Michael P. Seng, Edward Burke Arnolds, Chicago, Ill., for plaintiffs.

David N. Barkhausen, Chicago, Ill., for William J. Scott.

William R. Quinlan, Robert T. Karmgard, Chicago, Ill., for Bernard Carey and William Craven and Michael Spiocto.

Ellen G. Robinson, Asst. State's Atty., Cook County Ill., Chicago, Ill., for Bernard Carey.


GRADY, District Judge.

Plaintiffs are various members of the Committee Against Racism ("CAR"). On

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September 6, 1977, at approximately 6:15 p. m., several of the plaintiffs peacefully demonstrated on the sidewalk in front of Mayor Bilandic's home in order to protest his failure to support busing as a means of achieving racial integration. (Complaint, par. 6). These plaintiffs were arrested for disorderly conduct and for violating the Illinois Residential Picketing Statute. Ill.Rev.Stat. ch. 38, s 21.1-1 et seq. In exchange for dismissal of the disorderly conduct charge, the plaintiffs pled guilty to the charge of unlawful residential picketing. (Complaint, par. 11). Some of these plaintiffs were sentenced to six months supervision, and some were sentenced to one year of supervision. Those subject to the six month supervision have already served their sentences while those subject to the one year of supervision will have completed their sentences on October 18, 1978. (Complaint, par. 12). In addition to the plaintiffs who have been arrested and pled guilty, there are several other members of the Committee Against Racism who have joined as parties plaintiff. One of these, David Smith, participated in the picketing on September 6, 1977, but was not arrested. (Complaint, par. 3(d)). Another member, Joan Raisner, did not participate in the September 6 picketing. (Complaint, par. 3(e)). All of the plaintiffs allege that they wish to picket various Chicago residences and to express their views on racial integration but that the threat of future prosecution under the residential picketing statute has inhibited them. (Complaint, par. 14). More specifically, plaintiffs Buckhoy, Campbell, Brown, Smith and Raisner state in affidavits that the issue of busing to achieve integration has again become topical and that, but for the threat of arrest under the residential picketing statute, they would again picket Mayor Bilandic's home in the same manner and for the same purpose as their September 6 picketing. Plaintiffs seek a judgment declaring that the Illinois Residential Picketing Statute is unconstitutional on its face and as applied, and an injunction against state, county, and city officers prohibiting their enforcement of the statute. Defendants have moved to dismiss the complaint and to deny the injunctive relief. After the preliminary hearing, the parties filed cross motions for summary judgment.

Preliminary Matters

At the outset, we believe it advisable to express our understanding of the nature of this case. In our view, plaintiffs are not attempting to collaterally attack or in any way impeach their pleas of guilty before the state court. Although their former arrest and prosecution may be evidence of a likelihood of future arrest for similar conduct, their request for relief is solely prospective in nature, I. e., a declaration that their intended future picketing is protected by the First Amendment against arrest under the Illinois Residential Picketing Statute. With this appreciation of the case, we must quickly reject several of defendants' arguments.

Defendant City of Chicago argues that plaintiffs should be collaterally estopped from raising the unconstitutionality of the Illinois Residential Picketing Statute because of their failure to raise that issue in their earlier state criminal proceeding. According to Moore, the doctrine of collateral estoppel applies in the following situation:

Where there is a second action between parties, . . . who are bound by a judgment rendered in a prior suit, but the second action involves a different claim, cause, or demand, the judgment in the first suit operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended.

1B Moore's Federal Practice: P 0.441(2), at 3777 (2d ed. 1974). A critical requirement of the doctrine is that the issue sought to be precluded in the second suit must actually have been litigated in the first suit. According to the complaint, however, the plaintiffs who were prosecuted in the state criminal proceeding never raised the issue of the Illinois statute's constitutionality but rather entered a plea of guilty. In the

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former proceeding then, the constitutional issue was not actually litigated, and the doctrine of collateral estoppel therefore cannot be invoked to bar litigation of the constitutional issue in this court. 1

It is possible that defendant City of Chicago intends to invoke the doctrine of res judicata rather than that of collateral estoppel. Res judicata, however, is equally inapplicable. Under the doctrine of res judicata, a final judgment on the merits in a prior suit between the same parties or their privies bars a second suit based on the same cause of action. 1B Moore's Federal Practice: P 0.405(1), at 622 (2d ed. 1974). Critical to this doctrine is the requirement that the second suit be based on the same cause of action. Although courts have differed over what constitutes the same cause of action, it is clear that plaintiffs' present suit is not on the same cause of action as the prior criminal proceeding. In the prior suit, the cause of action was a criminal prosecution for violation of the Illinois Residential Picketing Statute occurring on September 6, 1977; in the present suit, the cause of action is for a declaratory judgment that a prosecution under the Illinois Residential Picketing Statute for future picketing would be unconstitutional. Although the same issue could be raised in each suit, these suits are clearly not based on the same cause of action. Therefore, res judicata does not bar this suit.

Defendant Carey has urged another argument based on the plea of guilty in the prior criminal proceedings. Carey asserts that by pleading guilty, plaintiffs have waived a challenge to the constitutionality of the proceedings in which they were convicted and to the constitutionality of the statute under which they were convicted. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). This is an accurate statement of the law, but defendant's argument seeks to apply the waiver doctrine beyond its established bounds. A guilty plea operates to waive a constitutional challenge to the statute only for the proceeding in which the plea is entered. Thus, a person who has pleaded guilty may not assert such constitutional infirmities on appeal or by way of collateral review. Pleading guilty and waiving constitutional infirmities in one suit, however, does not waive those same constitutional infirmities in a second, entirely distinct suit. If, for example, the plaintiffs were arrested a second time for violating the residential picketing statute, their plea of guilty in the previous prosecution would not waive their right to challenge the constitutionality of that statute in the second prosecution. The result is no different when the second suit is one for a judgment declaring future conduct protected by the Constitution rather than for prosecution of that future conduct. Thus, plaintiffs' plea of guilty to their criminal prosecution under the Residential Picketing Statute does not waive their right to challenge the constitutionality of this statute as applied to their future picketing.

In addition to the legal reasons outlined above, these defendants' arguments must be rejected for a purely factual reason. Each of the arguments applies only to those plaintiffs who were arrested for violating the picketing statute and who then pleaded guilty to the offense. There are two plaintiffs in this case, David Smith and Joan Raisner, who have never been prosecuted under the statute. As to them, the defendants' arguments clearly have no force.


In the landmark cases of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971),

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the Supreme Court held that a federal court should abstain from deciding a constitutional issue and granting either injunctive or declaratory relief whenever the constitutional claim may be raised in a pending State criminal proceeding. If, on the other hand, no state criminal proceeding is pending, the federal court need not abstain from issuing a declaratory judgment on the constitutional ground, even in the absence of the requirements for an injunction. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). According to the complaint, there is no state criminal proceeding pending against any of the plaintiffs. 2 Thus, under the rationale of Steffel, We need not abstain from issuing a declaratory judgment in this case.

Defendants argue that Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) has changed the law as enunciated in Steffel, Quoting the following passage: "Here it is abundantly clear that appellees had an Opportunity To present their federal claims in the state proceedings. No more is required to invoke Younger abstention." 430 U.S. at 337, 97 S.Ct. at 1218 (emphasis in original; footnote omitted). We believe that this passage, when read in context, does not support abstention in the present case. In Juidice, The appellees failed to satisfy judgments obtained against...

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