Mandarino v. Pollard
| Decision Date | 07 October 1983 |
| Docket Number | No. 82-3109,82-3109 |
| Citation | 718 F.2d 845 |
| Parties | Joseph MANDARINO, Plaintiff-Appellant, v. Mardyth POLLARD, Individually and in her Capacity as Mayor of the Village of Lombard, Illinois; Warren Browning, Individually and in his Capacity as Village Manager of the Village of Lombard, Illinois; Gregory Yangas, Individually and as Trustee of the Village of Lombard, Illinois; William Francis, Individually and as Trustee of the Village of Lombard, Illinois; John Garrity, Individually and as Trustee of the Village of Lombard, Illinois; and the Village of Lombard, Illinois, a Municipal Corporation and Governmental Subdivision of the State of Illinois, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Walter P. Maksym, Jr., Botti, Marinaccio & Maksym, Ltd., Oak Brook, Ill., for plaintiff-appellant.
Sarah Hansen Sotos, Klein, Thorpe & Jenkins, Ltd., Chicago, Ill., for defendants-appellees.
Before WOOD and ESCHBACH, Circuit Judges, and GORDON, Senior District Judge. *
Joseph Mandarino seeks review of a decision dismissing his complaint on the ground of res judicata. For the reasons stated below, we affirm the ruling of the district court.
The appellant's basic grievance is his allegedly wrongful discharge as chief of police of the Village of Lombard, Illinois. He was hired for this position pursuant to section 2.40.020 of the Lombard Village Code, which states:
The Village Manager is authorized to appoint, suspend or discharge the Chief of Police without the consent of the Board of Trustees.
Mandarino became chief of police in November, 1977; in June, 1979, the village manager gave him written notice of his termination, again pursuant to section 2.40.020 of the Village Code. The manager made no allegations of wrongdoing, but simply stated that Mandarino's performance in his position had fallen short of the manager's expectations.
Mandarino asked to be informed of the specific reasons for his termination and requested a public hearing on the matter. Both requests were denied. He then brought suit against the Village of Lombard in the circuit court for Du Page County, Illinois. In this state court action Mandarino sought a declaratory judgment that he had been wrongfully terminated and that section 2.40.020 of the Lombard Village Code was contrary to Illinois law. The latter claim was based on Mandarino's contention that the local code conflicted with a state statute governing the hiring and firing of police chiefs and also that it violated the due process and equal protection clauses of the Illinois Constitution. The appellant's complaint in his state court action also included a second count, in which he requested a preliminary injunction enjoining the Village of Lombard from hiring anyone other than himself as its permanent chief of police.
Following a hearing, the Illinois circuit court granted the village's motion for judgment on the pleadings. Mandarino appealed this determination to the appellate court of Illinois, which affirmed the circuit court's judgment. Mandarino v. Village of Lombard, 92 Ill.App.3d 78, 46 Ill.Dec. 624, 414 N.E.2d 508 (1980). Mandarino petitioned for leave to appeal this decision to the Illinois Supreme Court. His petition was denied.
Mandarino then brought the federal court action that is the subject of this appeal. In his complaint, he alleged that the circumstances of his discharge, particularly the failure to provide him with a name-clearing hearing, violated his civil rights under 42 U.S.C. Secs. 1981, 1983, 1984, 1985, and 1988, as well as the first, fifth, and fourteenth amendments to the United States Constitution. In addition to the Village of Lombard, the appellant named as defendants the village mayor, the village manager, and several trustees of the village board. These persons were sued in both their official and individual capacities. Along with his federal civil rights claims, Mandarino asserted two pendent state law claims, for interference with prospective economic advantage and wrongful discharge.
The defendants moved to dismiss the complaint on the basis that the earlier state court judgment barred Mandarino, under principles of res judicata, from pressing his claims in federal court. The district court granted the motion and dismissed the complaint. This appeal followed.
The appellant's principal argument in this court is that the earlier state court judgment is not res judicata because it was rendered in an action for declaratory relief. He bases this argument on the recognition, in Restatement (Second) of Judgments Sec. 33 (1982), of a so-called "declaratory judgment exception" to the usual principles of res judicata. The Restatement rule provides that a declaratory judgment bars relitigation of issues actually decided but does not preclude a later action seeking coercive relief based on the same cause of action.
The appellees assert that the appellant's "declaratory judgment exception" argument was not raised in the district court and cannot be entertained for the first time on appeal. We agree. The principal thrust of the appellant's brief in the court below was that the right to a name-clearing hearing was not recognized at the time of his state court action and thus his federal action could not be barred by his earlier failure to assert that right. Nowhere in his brief was the declaratory judgment exception mentioned. Section 33 of the Restatement (Second) of Judgments was not cited; neither were the cases Mandarino relies on in this court to establish the "exception." Mandarino's isolated references in his brief below to the declaratory nature of the state court action were general in terms. They were not sufficient to alert the district court or the defendants to his reliance on a rarely encountered exception to traditional res judicata principles. We conclude that Mandarino's declaratory judgment exception argument was not presented to the court below.
Arguments not raised in the trial court cannot be raised for the first time on appeal. See, e.g., Phillips v. Hunter Trails Community Association, 685 F.2d 184 (7th Cir.1982); Textile Banking Co. v. Rentschler, 657 F.2d 844 (7th Cir.1981). Narrow exceptions to this rule have been recognized, as, for instance, where jurisdictional issues are involved or where, "in exceptional cases, justice demands more flexibility." Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). No jurisdictional issues are involved in the case at bar, and we know of no reason for justice to "demand more flexibility" in this case. Therefore, we conclude that the appellant's "declaratory judgment exception" argument is not properly before us on this appeal.
Even if we were to consider this argument, it would be of no avail to the appellant. Under 28 U.S.C. Sec. 1738, we must give the prior Illinois judgment entered in the appellant's declaratory judgment action the same preclusive effect as it would be afforded by Illinois courts. Harl v. City of La Salle, 679 F.2d 123, 125 (7th Cir.1982). Mandarino has cited no Illinois authority that stands for the rule contained in section 33 of the Restatement (Second) of Judgments. The only case he refers to in direct support of Illinois adoption of the declaratory judgment exception is LaSalle National Bank v. County of Du Page, 77 Ill.App.3d 562, 32 Ill.Dec. 935, 396 N.E.2d 48 (1979). Although that case did hold that a second suit was not precluded by a prior declaratory judgment, the rationale relied on by the court arose from the special characteristics of zoning cases; no weight was given to the fact that the prior action had involved only a declaratory judgment.
Assuming, arguendo, that some controlling authority existed for application of the declaratory judgment exception in this circuit, Mandarino's reliance on that exception would still not aid him in this appeal. As stated in Restatement (Second) of Judgments Sec. 33, comment c, the purpose of declaratory actions is to supplement other types of litigation by providing "a remedy that is simpler and less harsh than coercive relief." According to the Restatement, this purpose is furthered when a plaintiff who has sought "solely" declaratory relief is later permitted to seek additional, coercive relief based on the same claim.
Under this rationale, permitting Mandarino to proceed with his federal lawsuit would not further the purpose of declaratory actions, since his state court action did not seek "solely" declaratory relief. Instead, his request for a judicial declaration was coupled with a request for a preliminary injunction which, if granted, would have prevented the Village of Lombard from replacing him as police chief for the duration of the litigation. Under these circumstances, the policy underlying the declaratory judgment exception must give way to the policy underlying traditional res judicata principles, namely, "to protect defendants and the courts from a multiplicity of suits arising from the same cause of action." Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119, 121 (7th Cir.1981). We conclude that even if the rule stated in Restatement (Second) of Judgments governed resolution of this appeal, Mandarino's pursuit of injunctive relief in his state court action would remove him from the protections of the rule.
The remaining issues on this appeal relate to the correctness of the district court's application of traditional res judicata principles in the circumstances of this case. We recently restated those principles in Lee v. City of Peoria, 685 F.2d 196 (7th Cir.1982).
The doctrine of res judicata is that a final judgment on the merits in a court of competent jurisdiction bars the same parties or their privies from relitigating not only the issues...
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