Falk v. State Bar of Michigan

• Decision Date: 10 April 1986
• Docket Number: No. G 84-1405 CA.,G 84-1405 CA.
• Parties: Allan FALK, Plaintiff, v. STATE BAR OF MICHIGAN, Defendant.
• Court: U.S. District Court — Western District of Michigan

631 F. Supp. 1515

Allan FALK, Plaintiff, v. STATE BAR OF MICHIGAN, Defendant.

No. G 84-1405 CA.

United States District Court, W.D. Michigan, S.D.

April 10, 1986.

Allan Falk, in pro. per.

Bushnell, Gage, Doctoroff & Reizen by John K. Parker, Southfield, Mich., for defendant.

OPINION RE MOTION TO DISMISS OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

HILLMAN, District Judge.

This matter is before the court on defendant's motion to dismiss, or in the alternative, for summary judgment. Plaintiff is Allan Falk, a licensed Michigan attorney. Defendant is the State Bar of Michigan. Plaintiff brings suit under 42 U.S.C. § 1983¹ for deprivation of his rights under the First Amendment to the United States Constitution. Specifically, plaintiff alleges that the State Bar of Michigan uses mandatory bar dues received pursuant to Michigan law in violation of plaintiff's rights under the First Amendment.²

Defendant's motion to dismiss or, in the alternative, for summary judgment presents a compendium of the law of federal civil procedure and jurisdiction. First, defendant moves to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). Specifically, defendant maintains that: (1) no "case or controversy" within the meaning of Article III of the Constitution exists; (2) the Eleventh Amendment to the Constitution bars plaintiff's suit; or (3) plaintiff seeks review of a judgment rendered by the Michigan Supreme Court. Second, defendant moves to dismiss under Fed.R.Civ.P. 19(b) or, in the alternative, to join the individual Justices of the Michigan Supreme Court under Fed. R.Civ.P. 19(a). Third, defendant moves to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Specifically, defendant asserts that: (1) the State Bar of Michigan is not a "person" within the meaning of 42 U.S.C. § 1983; and (2) the State Bar of Michigan enjoys absolute immunity from suit. Fourth, defendant moves to dismiss on the basis of the doctrines of res judicata, collateral estoppel, and laches. Fifth, defendant moves for summary judgment, pursuant to Fed.R.Civ.P. 56(b).

After carefully considering all of defendant's contentions, reviewing the parties' briefs, and hearing oral argument from the parties, I conclude that the prior judgment by the Michigan Supreme Court in a lawsuit between these same parties bars this action. Accordingly, the following discussion only concerns defendant's motion to dismiss on the basis of res judicata or claim preclusion.³

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's current action arises from a long-standing challenge by plaintiff to particular uses of mandatory fees by the State Bar of Michigan. Plaintiff originally challenged the practices of the State Bar through a "Petition for Special Relief" filed in the Michigan Supreme Court on November 30, 1977. In that petition, plaintiff complained that the State Bar of Michigan used his mandatory bar dues in violation of the First Amendment to the United States Constitution. The Michigan Supreme Court treated plaintiff's petition as a complaint for a writ of superintending control over the State Bar of Michigan, within the original jurisdiction of the Court. Falk v. State Bar of Michigan, 411 Mich. 63, 85-86, 305 N.W.2d 201, 202-03 (1981) (Ryan, J., concurring) hereinafter cited as Falk I. Subsequently, the Michigan court issued two per curiam opinions along with a collection of concurring opinions. Falk I; Falk v. State Bar of Michigan, 418 Mich. 270, 342 N.W.2d 504 (1983) (per curiam) hereinafter cited as Falk II.

In Falk I, the Michigan Supreme Court appointed the Honorable James H. Lincoln to conduct an evidentiary hearing.⁴ The Court ordered that at that hearing before Judge Lincoln "the parties shall further develop the record with regard to the following bar activities: the Young Lawyers Section and Lawyers Wives, the Lawyer Placement Service, the commercial sale of the bar's mailing list, and bar activities addressed to influencing legislation." Falk I, 411 Mich. at 83, 305 N.W.2d at 201. Judge Lincoln conducted hearings for 12 days between August 24, 1981, and December 18, 1981. After receiving Judge Lincoln's report, the Michigan Supreme Court, on December 29, 1983, issued its second per curiam opinion and dismissed plaintiff's petition. Falk II, 418 Mich. at 277, 342 N.W.2d at 504. Plaintiff then sought review by the United States Supreme Court under 28 U.S.C. § 1257(2). The United States Supreme Court dismissed the appeal for lack of jurisdiction under 28 U.S.C. § 1257(2) and, treating the appeal as a petition for writ of certiorari, denied certiorari.⁵ I refer anyone interested in further explanation of the factual and procedural circumstances of plaintiff's petition to Falk I, 411 Mich. at 84-90, 305 N.W.2d at 202-05 (Ryan, J., concurring), and Falk II, 418 Mich. at 277-80, 342 N.W.2d at 504-06 (Boyle, J., concurring).

In this court, plaintiff claims that the State Bar of Michigan used mandatory bar fees to finance political lobbying efforts, "ideological activity," "activities ... to promote the economic interests of a portion of its membership," and "private interest activities" in violation of the First Amendment to the Constitution. Plaintiff seeks monetary and injunctive relief under 42 U.S.C. § 1983. In addition, plaintiff seeks a declaratory judgment that defendant's conduct violates the First Amendment, pursuant to 28 U.S.C. § 2201.

DISCUSSION

Under the doctrine of claim preclusion,⁶ "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Kremer v. Chemical Construction Corp., 456 U.S. 461, 467 n. 6, 102 S.Ct. 1883, 1890 n. 6, 72 L.Ed.2d 262 (1982). Claim preclusion, therefore, operates to "relieve parties of the cost and vexation of multiple lawsuits, to conserve judicial resources, and, by preventing inconsistent decisions, to encourage reliance on adjudication." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Here, relying upon the doctrine of claim preclusion, defendant moves to dismiss this action on the basis of plaintiff's prior action against defendant in the Michigan Supreme Court.⁷

Section 1983 actions in federal court are not immune from the preclusive effect of prior state court judgments. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Furthermore, "it is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Id. at 81, 104 S.Ct. at 896. Consequently, this court must give the prior judgment of the Michigan Supreme Court in Falk II the same preclusive effect as Michigan courts would give that judgment.

A. Claim Preclusion Under Michigan Law.

Michigan courts follow the standard rule of claim preclusion. Specifically, under Michigan law, claim preclusion requires three prerequisites: (1) the prior action resulted in a decision "on the merits;" (2) the second action concerns the "same matter in issue" as the first action; and (3) both actions involve the same parties or their privies. E.g., Curry v. City of Detroit, 394 Mich. 327, 231 N.W.2d 57 (1975); Eliason Corp. v. Bureau of Safety and Regulation of the Michigan Department of Labor, 564 F.Supp. 1298 (W.D.Mich.1983).

(1) On the Merits. — After two evidentiary hearings, more than six years of consideration, and several lengthy opinions, did the Michigan Supreme Court adjudicate plaintiff's petition for special relief "on the merits"? Under Michigan law, an adjudication is clearly "on the merits" when "based upon findings of facts following an extensive bench trial." Fellowship of Christ Church v. Thorburn, 758 F.2d 1140, 1145 (6th Cir.1985) (applying Michigan law). When not undertaken merely as a housecleaning device, a dismissal for "no-progress" also constitutes a judgment on the merits. Eliason Corp., 564 F.Supp. at 1301-02. On the other hand, a dismissal based upon a motion for accelerated judgment is not a decision on the merits under Michigan law. County of San Joaquin, California v. Dewey, 105 Mich.App. 122, 306 N.W.2d 418, 421-22 (1981). These preceding statements of Michigan law, unfortunately, provide little direction in this case. In dismissing plaintiff's petition for special relief, the Michigan Supreme Court failed to specify the basis for its dismissal.

In its second per curiam opinion, the Michigan Supreme Court stated that plaintiff was not entitled to the relief he sought in his petition for special relief. Consequently, the Michigan court dismissed plaintiff's petition. In a judgment entered on the date of the issuance of the second per curiam opinion, the Michigan Supreme Court further explained its dismissal.

"This cause having been brought to this Court by petition for superintending control and having been argued by counsel and due deliberation had thereon by the Court, IT IS HEREBY ORDERED that the petition is DISMISSED."

Although the question is certainly a close one under Michigan law, I believe that the prior judgment of the Michigan Supreme Court dismissing plaintiff's petition was "on the merits" for the following reasons.

First, the Michigan Court Rules, specifically MCR 2.504(B)(3), classify the prior dismissal by the Michigan Supreme Court as an adjudication on the merits. "In Michigan, the Supreme Court has the authority to adopt rules of procedure for all courts of record in the state." Wilkie v. Schwan's Sales Enterprises, Inc., 541 F.Supp. 1193, 1197 (W.D.Mich.1982). See also Mich. Const. of 1963, Art. VI, § 5. Therefore, those rules should inform this court's decision concerning Michigan law. See Wilkie, 541 F.Supp. at 1197.

MCR 2.504(B)(3) states that:

"Unless the court otherwise specifies in its order of dismissal, a

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