Bates v. Township of Van Buren

• Decision Date: 21 August 2006
• Docket Number: No. 05-2137.,05-2137.
• Citation: 459 F.3d 731
• Parties: Samantha BATES, Plaintiff-Appellant, v. TOWNSHIP OF VAN BUREN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

459 F.3d 731

Samantha BATES, Plaintiff-Appellant, v. TOWNSHIP OF VAN BUREN, Defendant-Appellee.

No. 05-2137.

United States Court of Appeals, Sixth Circuit.

Argued: July 20, 2006.

Decided and Filed: August 21, 2006.

ARGUED:

Michael L. Donaldson, Livonia, Michigan, for Appellant. James N. McNally, Sommers Schwartz, Southfield, Michigan, for Appellee.

ON BRIEF:

Michael L. Donaldson, Livonia, Michigan, for Appellant. James N. McNally, Patrick B. McCauley, David J. Szymanski, Sommers Schwartz, Southfield, Michigan, for Appellee.

Before: GILMAN and COOK, Circuit Judges; DOWD, District Judge.^*

COOK, J., delivered the opinion of the court, in which DOWD, D. J., joined.

GILMAN, J. (pp. 737-39), delivered a separate dissenting opinion.

OPINION

COOK, Circuit Judge.

Samantha Bates, a topless dancer at Leggs Lounge in the Township of Van Buren, Michigan, filed this § 1983 action challenging a town ordinance that prohibited nudity at "any establishment licensed or subject to licensing by the Michigan Liquor Control Commission." The district court stayed her case until the Michigan Court of Appeals — in an action to enjoin the bar's owner, The Garter Belt, Inc., from violating the ordinance — rejected the defense that the ordinance was unconstitutional. The district court then lifted the stay on this case and dismissed Bates's claims as res judicata. We find that the district court correctly applied the Michigan law of res judicata, and we accordingly affirm.

I.

On March 2, 1999, the Township of Van Buren enacted Ordinance 2-16-99(2), providing as follows:

Nudity on Licensed Premises.

(a) No person, while appearing in a state of nudity as defined by this section, shall frequent, loiter, work for, or perform in any establishment licensed or subject to licensing by the Michigan Liquor Control Commission. No proprietor or operator of any such establishment shall allow the presence in such establishment of any person who violates the provisions of this section.

(b) "Nudity" shall be defined to be the exposure by view of persons, of any of the following body parts, either directly or indirectly, including but not limited to exposure, see-through clothing articles or body stockings:

(1) the whole or part of the pubic region;

(2) the whole or part of the anus;

(3) the whole or part of the buttocks;

(4) the whole or part of the genitals;

(5) the breast area including nipple, or more than one-half of the area of the breast.

In November 2000, the township sought a permanent injunction requiring The Garter Belt to comply with the ordinance ("Garter Belt I"). The bar removed the case to federal court and filed a separate federal case challenging the constitutionality of the ordinance ("Garter Belt II"). The district court remanded Garter Belt I and abstained from (and dismissed) Garter Belt II on the basis of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and in doing so rejected The Garter Belt's argument that abstention was inappropriate because it would preclude, at least until a writ of certiorari was granted by the Supreme Court, federal review of its constitutional claims. After the Sixth Circuit affirmed, Garter Belt I was heard in state court. The Wayne County Circuit Court upheld the statute's constitutionality and issued a permanent injunction against the bar; the Michigan Court of Appeals affirmed, Charter Twp. of Van Buren v. Garter Belt, Inc., 258 Mich.App. 594, 673 N.W.2d 111 (2003), and the Michigan Supreme Court denied leave to appeal, 470 Mich. 880, 682 N.W.2d 86 (2004). The United States Supreme Court denied certiorari. 543 U.S. 1002, 125 S.Ct. 620, 160 L.Ed.2d 462 (2004).

While the Garter Belt I litigation was proceeding, Bates filed this 42 U.S.C. § 1983 action in federal district court challenging the constitutionality of the ordinance. The case was stayed until certiorari was denied in Garter Belt I. The court then lifted the stay and requested briefing on "the impact of the state court's decision [in Garter Belt I] on Bates's claims and whether any doctrine(s) bar(s) [Bates] from litigating her claims in this forum."

The district court barred Bates's action as res judicata. Although different parties were involved in the actions, in Michigan res judicata bars a subsequent action by the "same parties or their privies." Adair v. State, 470 Mich. 105, 680 N.W.2d 386, 396 (2004). The court held that Bates and The Garter Belt were in privity in part because they had a "`substantial identity of interests'" — specifically, "that the ordinance be struck down on constitutional grounds." Id. (citation omitted). Bates timely appealed.¹

II.

The application of res judicata is a question of law that we review de novo. Browning v. Levy, 283 F.3d 761, 772 (6th Cir.2002).

The "Full Faith and Credit statute," 28 U.S.C. § 1738,² requires federal courts in a § 1983 action to give state court judgments the same preclusive effect those judgments would have in the rendering state's courts. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80-82, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). The Michigan Supreme Court "has taken a broad approach to the doctrine of res judicata," determining that it "bars a second, subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first." Adair, 680 N.W.2d at 396. The doctrine "bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not." Id.

Bates challenges only the district court's finding that she is in privity with The Garter Belt.

To be in privity is to be so identified in interest with another party that the first litigant represents the same legal right that the later litigant is trying to assert. The outer limit of the doctrine traditionally requires both [1] a "substantial identity of interests" and [2] a "working functional relationship" in which [3] the interests of the nonparty are presented and protected by the party in the litigation.

Id. (citations omitted).

In Adair, the Michigan Supreme Court barred as res judicata a challenge by taxpayers and school districts to the state's education funding plan. The Michigan Constitution required that the state neither (1) decrease its funding for mandated activities and services nor (2) impose new unfunded mandates on local school districts. After several rounds of litigation concerning the first requirement, a new group of plaintiffs, including some school districts and taxpayers that had not been party to the first litigation, challenged the state funding plan as not complying with the second requirement. The Michigan Supreme Court dismissed the subsequent claims on the ground that they could have been reached in the earlier suit.

The court held that the plaintiffs who were not parties in the earlier litigation had "identical" interests to those who were because each sought the same declaratory relief.

In litigation concerning the [Michigan Constitution's educational funding provisions], where a taxpayer or a local unit of government is suing the state, the issue is whether the Legislature's act is unconstitutional as it applies not just to a single local unit of government, but to all local units affected by the legislation. In such cases, the interests of all similar local units of government and taxpayers will almost always be identical. If the relief sought by one plaintiff to remedy a challenged action is indistinguishable from that sought by another, such as when declaratory relief is sought concerning an act of the Legislature establishing the proportion of state funding for local government units, the interests are identical.

Id. (emphasis added). Notwithstanding that the second group of plaintiffs were challenging the funding plan under a different constitutional provision, the court held that privity existed because each group of plaintiffs sought to have the state's funding plan declared unconstitutional.

The court in Adair did not explain how the parties maintained a "working functional relationship," the second component of the test for privity, and thus it is hard to see what force the requirement retains. (In contrast, the court did summarily assert that the interests of the nonparty were "presented and protected" in the first litigation, the third component of the test for privity.) Adair cited Phinisee v. Rogers, 229 Mich.App. 547, 582 N.W.2d 852, 854-55 (1998), in which the court held that an illegitimate child's paternity claim was not barred as res judicata by her mother's failed paternity suit because the mother and daughter did not share a substantial identity of interests.³ The court in Phinisee quoted a definition of privity in which the parties' having an actual relationship was a disjunctive requirement from their having an identity of interests:

[Privity consists in] mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right . . . . [It] signifies that [the] relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon [the] other, although [the] other was not a party to lawsuit.

Black's Law Dictionary 1199 (6th ed.1990) (emphasis added).⁴ Though it is not essential to our holding, we are confident that Adair's requirement of a "working functional relationship" may be satisfied by "an identification of interest of one person with another as to represent the same legal right." Id.

Bates's case satisfies each of the components discussed in Adair. First, Bates and The Garter Belt had a substantial identity of interests because each sought a facial invalidation of the ordinance. It is of no moment that The Garter Belt was a defendant...