750 F.2d 731 (9th Cir. 1984), 81-5772, Los Angeles Branch NAACP v. Los Angeles Unified School Dist.

Docket Nº:81-5772.
Citation:750 F.2d 731
Party Name:LOS ANGELES BRANCH NAACP et al., Plaintiffs-Appellees, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.
Case Date:December 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 731

750 F.2d 731 (9th Cir. 1984)

LOS ANGELES BRANCH NAACP et al., Plaintiffs-Appellees,

v.

LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.

No. 81-5772.

United States Court of Appeals, Ninth Circuit

December 21, 1984

Argued and Submitted April 10, 1984.

As Modified on Denial of Rehearing and Rehearing En Banc

Feb. 21, 1985.

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Thomas I. Atkins, General Counsel, N.A.A.C.P. Special Contribution Fund, Brooklyn, N.Y., for plaintiffs-appellees.

G. William Shea, Peter W. James, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, CHOY, WALLACE, SNEED, ANDERSON, PREGERSON, POOLE, NELSON, CANBY, BOOCHEVER and NORRIS, Circuit Judges:

CANBY, Circuit Judge:

We took this case en banc to decide the extent to which the doctrine of res judicata bars this class action alleging intentional segregation in the Los Angeles public schools in violation of the United States Constitution. Defendants moved in district court for summary judgment on the ground that plaintiffs were seeking in this action to relitigate the same claim that had been litigated and decided in Crawford v. Board of Education, 113 Cal.App.3d 633, 170 Cal.Rptr. 495 (1980), aff'd, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982). The district court denied the motion, 518 F.Supp. 1053, and certified this interlocutory appeal. 28 U.S.C. Sec. 1292(b).

I.

FACTS

The Crawford litigation began in 1963 as a class action on behalf of black high school students seeking to desegregate a high school in Los Angeles. Before trial, the complaint was amended to assert a desegregation claim on behalf of all black and Hispanic students attending school in the Los Angeles Unified School District. The case was filed in the California courts just months after the California Supreme Court, in Jackson v. Pasadena City School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 (1963), held that school boards in the state were under a state constitutional obligation to take reasonable steps to alleviate racial segregation in the schools, regardless of whether the segregation was de facto or de jure in nature. The case went to trial in 1968 under a stipulation that permitted the court to consider activities of the defendants occurring from May 1, 1963 to the time of trial. The trial court rendered its decision on May 12, 1970, finding that the District schools were substantially

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segregated and concluding that this segregation was both de facto and de jure in origin.

On appeal, the California Supreme Court refused to affirm on the basis of the trial court's conclusion of de jure segregation. Crawford v. Board of Education, 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976) (Crawford I ). Instead, it chose to affirm on the basis of its previous decision in Jackson that the California Constitution imposed a duty upon school boards to take reasonably feasible steps to alleviate segregation in the public schools, regardless of its cause. Id. at 301-02, 130 Cal.Rptr. at 738, 551 P.2d at 42. The court then remanded the cause to the trial court for the development of a reasonably feasible desegregation plan.

On remand, the trial court rejected the largely voluntary desegregation plan submitted by the School District and ordered the implementation of a plan calling for large-scale mandatory pupil reassignment and transportation. The court-ordered plan went into effect in the fall of 1978. In October 1979, the trial court began hearings to determine the constitutional sufficiency of its court-ordered plan. On November 6, 1979, before the hearings could be completed, the voters of California approved Proposition I, 1 an initiative measure which amended the California Constitution to limit the power of state courts to order mandatory pupil reassignment and transportation on the basis of race. In effect, the state courts were forbidden to order those measures except in circumstances where federal courts could do so to remedy violations of the United States Constitution. In addition, Proposition I authorized any court having jurisdiction, upon application by any interested person, to modify existing judgments or decrees containing provisions for mandatory pupil reassignment and transportation, unless such modification would be prohibited by the United States Constitution.

Following passage of Proposition I, the School District applied to the California courts for an order halting mandatory pupil reassignment and transportation in the District. On May 19, 1980, the Superior Court denied the application on the ground that the trial court in Crawford I had found de jure segregation and thus the elimination of mandatory pupil reassignment and transportation in the District would be prohibited by the United States Constitution. The Superior Court thereafter issued a new order on July 7, 1980, substantially continuing the 1978 desegregation plan.

The California Court of Appeal reversed and vacated the July 7, 1980, desegregation order. Crawford v. Board of Education, 113 Cal.App.3d 633, 643, 170 Cal.Rptr. 495

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(1980) (Crawford II ). The appellate court determined that the 1970 findings by the trial court in Crawford I did not support its conclusion of de jure segregation, when viewed in light of subsequent Supreme Court decisions emphasizing the need for showing specific discriminatory intent. Because the Court of Appeal viewed the findings as establishing only de facto segregation in the District schools, it concluded that a federal court would not be authorized under federal law to order pupil assignment and transportation. Consequently, Proposition I barred the state court from doing so. The court thereupon vacated the orders of May 19, 1980, and July 7, 1980, and remanded to the Superior Court "for further proceedings consistent with this opinion." The California Supreme Court refused review on March 11, 1981, and the case was remitted to the Superior Court on the next day. 2

Following the remittitur, 3 the District submitted a revised desegregation plan with no mandatory pupil reassignment or mandatory busing. The plan was accepted by the Superior Court, with modifications, on September 10, 1981. On November 25, 1981, the Superior Court awarded plaintiffs attorneys' fees and costs and, declaring that the "underlying issues have been resolved," terminated jurisdiction. The Crawford plaintiffs appealed the September 10, 1981 order but dropped their appeal on May 24, 1983, thus closing the last chapter of the Crawford litigation. 4

The NAACP filed the present case while Crawford was still pending in the California Superior Court following the remittitur from Crawford II. The district court refused to give res judicata effect to the Crawford litigation because it determined that no final judgment had yet been entered in that case and that retrial of the de jure issue on remand had not been foreclosed by the appellate court's remittitur. 5 A three-judge panel of this court reversed the district court on the ground that the Crawford judgment had since become final and that therefore relitigation of the claim that the District was segregated de jure on or before September 10, 1981, was barred by the doctrines of res judicata and collateral estoppel. 6 We granted the NAACP's petition for rehearing en banc and withdrew the opinion of the three-judge panel. 7 Because we agree that relitigation of the de jure claim is barred by the doctrine of res judicata, we reverse the order of the district court. We determine the bar, however, to apply only to events occurring on or before May 2, 1969.

II.

Res Judicata

The state court judgment in the Crawford litigation is entitled to the same preclusive effect in this court as it would be accorded in a California court, whether the effect is one of claim preclusion or issue preclusion. 28 U.S.C. Sec. 1738; Migra v. Warren City School District Board of Education, --- U.S. ----, 104 S.Ct. 892, 896-98, 79 L.Ed.2d 56 (1984). Under California

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law, the claim preclusion aspect of res judicata, also referred to as bar or merger, precludes the maintenance of a second suit between the same parties on the same cause of action so long as the first suit concluded in a final judgment on the merits. Agarwal v. Johnson, 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 155, 603 P.2d 58, 72 (1979); Slater v. Blackwood, 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 226, 543 P.2d 593, 594 (1975). All issues that were litigated or that might have been litigated as part of the cause of action are barred. Olwell v. Hopkins, 28 Cal.2d 147, 152, 168 P.2d 972, 975 (1946). The parties no longer dispute that there is now a final judgment on the merits in Crawford. We therefore turn our attention to the more complex problem of determining whether this action involves the same cause of action and the same parties as Crawford.

A.

Identity of Claims

The plaintiffs argue that the claim sued upon in this action is not the same as that in Crawford. They contend that the Crawford plaintiffs sued for violation of a right arising under the state constitution--the right to be free of de facto segregation. Plaintiffs assert that here they are suing for violation of a right arising under the Federal Constitution--the right to be free of de jure segregation. There are at least two major flaws in plaintiffs' argument.

First, the record in Crawford simply does not support the contention that plaintiffs there confined their claim to de facto segregation in violation of state law. The Crawford plaintiffs pleaded violations of...

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