Campbell v. City of Allen Park, 86-1360

Decision Date18 September 1987
Docket NumberNo. 86-1360,86-1360
PartiesDebra CAMPBELL and Dale Campbell, Plaintiffs-Appellants, v. CITY OF ALLEN PARK and Frank Lada, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Michael S. Cafferty (argued), Frimet, Bellamy & Gilchrist, P.C., Detroit, Mich., for plaintiffs-appellants.

John Dise, Craig, Farber, Downs & Dise, Detroit, Mich., Timothy Downs (argued), for defendants-appellees.

Before MARTIN, NELSON and BOGGS, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

Appellant Debra Campbell lost her job with the City of Allen Park, Michigan, after she moved outside the city in alleged violation of a city charter provision requiring employees to reside within the city unless granted a specific exemption from that requirement by the city council. Contending that Allen Park had violated the United States Constitution by arbitrarily rejecting a request for a waiver of the residency requirement, Mrs. Campbell and her husband brought a civil rights action against Allen Park in federal court. The plaintiffs sought an order of reinstatement with back pay plus other relief.

While the federal action was pending, a state court to which Mrs. Campbell had appealed her discharge entered judgment in her favor. The federal district court thereafter granted summary judgment for the city, dismissing the case on the ground that no constitutional violation had occurred.

We shall affirm the district court's judgment. In the first place, we agree that the Constitution was not violated. In the second place, Mrs. Campbell's election to pursue her remedies under state law had already resulted in her being reinstated, with an award of back pay, before the federal case came on for decision. That, in our view, ought to have ended the matter.

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Debra Campbell, nee Debra Hassell, was employed by Allen Park as a radio alarm operator in the fire department. In the fall of 1984 she became engaged to marry Dale Campbell, a firefighter employed by the neighboring city of Lincoln Park. That city had a residency requirement of its own, and Mr. Campbell was subject to it. Because he already owned a house in Lincoln Park, he and Miss Hassell decided that she would request an exemption from Allen Park's residency requirement so that the couple could live together in the Lincoln Park house after their marriage.

Miss Hassell wrote the Mayor and Council of Allen Park, shortly before her marriage, to request the exemption. Upon returning from her honeymoon, she made inquiry of the City Clerk as to the status of her exemption request and was told that the request was being processed. She says that she was also told she could live outside Allen Park while awaiting the Council's ruling, and she claims to have done so in reliance on this representation.

A month or two later the Council denied the exemption request. Shortly before the Council acted, Mrs. Campbell received a "Notice of Termination" from the Mayor. The notice, which did not refer to the advice allegedly given by the City Clerk, stated that Mrs. Campbell's employment was terminated because her non-residency was in violation of the Allen Park City Charter.

Mrs. Campbell elected to take advantage of the review procedures available under the Firemen and Policemen Civil Service System, M.C.L.A. Secs. 38.501 et seq. A hearing was held before the Fire and Police Civil Service Commission, but Mrs. Campbell was denied the opportunity to show, as she said she was prepared to do, that the real reason for her discharge was that she had requested a pregnancy leave. She was also denied the opportunity to show that she had obtained permission to live in Lincoln Park while her request for a waiver of the residency requirement was pending before the city council. The Commission upheld Mrs. Campbell's discharge.

Mrs. Campbell appealed the Commission's order to the Wayne County Circuit Court. Holding that the Commission had erred in refusing to entertain Mrs. Campbell's pregnancy and estoppel claims and had erred in failing to make written findings of fact, the circuit court reversed the Commission's decision, awarded Mrs. Campbell back pay from the date of her termination, and remanded the case for further proceedings. Before such proceedings were held, the Allen Park City Council granted Mrs. Campbell an exemption from the residency requirement.

Subsequent to the initiation of the appeal to the Wayne County Circuit Court and prior to the decision by that court, the Campbells instituted the present federal court action under 42 U.S.C. Sec. 1983. The Campbells' complaint alleged that the city's refusal to waive its residency requirement violated their constitutional rights to equal protection and substantive due process of law by arbitrarily interfering with their rights to travel and to marry. The relief sought included declaratory and injunctive relief, an order of reinstatement with back pay, and an award of damages "for extreme shock, mortification, and emotional suffering, in addition to costs, interest, and attorney fees...."

Cross motions for summary judgment were filed, and after oral argument the district court granted the city's motion and dismissed the case, holding that the city had not violated any right secured by the Constitution. This appeal followed.

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Although the issue was not raised by the city, we are hard pressed to understand why the plaintiffs should have been thought entitled to proceed with their federal court action after Mrs. Campbell had been reinstated with back pay. See Punton v. City of Seattle, 805 F.2d 1378 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1954, 95 L.Ed.2d 527 (1987), where a Seattle police officer who had been dismissed from his job appealed to the civil service commission and lost, then appealed to a state court where he won reinstatement with back pay, and thereafter brought a Sec. 1983 action in federal court seeking damages for emotional distress and attorney fees. The Court of Appeals for the Ninth Circuit held that the state court judgment barred any supplemental relief under Sec. 1983:

"Punton's election to proceed initially in the state court amounted to a splitting of his cause of action as well as an election of remedies. At the start, he could have proceeded directly in federal court with a Sec. 1983 claim for reinstatement, back pay, and general damages. Instead, he first chose to seek the relief of reinstatement and back pay in the state court.

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"We recently held in an employment grievance case originating in California that claim preclusion arising from a state court mandamus action in which substantial but incomplete relief was granted barred relitigation of the claim in federal court under Sec. 1983. Clark v. Yosemite Community College District, 785 F.2d 781 (9th Cir.1986)

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"Another instructive case is that of a police officer in Philadelphia who was charged with a crime, discharged from his job, acquitted after trial, and upon application to the municipal Civil Service Commission, reinstated without back pay. Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir.1984). The commission found that whether or not Cohen had participated in the burglary for which he was acquitted, he had violated police department rules by lending money to a superior officer. Cohen thereupon sued in federal court, alleging a Sec. 1983 claim. Summary judgment for the city was affirmed on the basis of claim preclusion.

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"We have found no Supreme Court case holding that merely because litigation strategy and the perceived advantages of a more adequate award in federal court make it an attractive alternative, a person aggrieved by official state action can abandon a remedy that colorably satisfies due process of law in the state court after recovering substantially what he has lost. On the contrary, Migra v. Warren City School District Board of Education, 465 U.S. 75, 85, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984), instructs to the contrary." Punton, 805 F.2d 1378 at 1381-83, passim.

We called the parties' attention to the Punton decision at the time of oral argument and invited them to comment on it in post-argument filings. The plaintiffs filed a supplemental brief arguing that Punton is distinguishable on the following grounds, among others: (1) Mr. Punton relied on the same underlying legal theories in both state and federal court, whereas here the legal theories advanced in the two courts are different; (2) Mr. Punton sought to use the favorable result in the state proceeding "to set up offensive collateral estoppel" in the federal court, whereas the plaintiffs in this case make no attempt to invoke the collateral estoppel doctrine; and (3) the plaintiffs in this case cannot be charged with having split their cause of action, because the constitutionality of the city's denial of the waiver requested by Mrs. Campbell could not have been litigated in the state court proceeding.

The city agrees that "[n]o state action was brought as to [the] issue...

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