McCune v. Frank

• Decision Date: 16 July 1975
• Docket Number: No. 871,D,871
• Citation: 521 F.2d 1152
• Parties: 10 Empl. Prac. Dec. P 10,317 Robert W. McCUNE, Plaintiff-Appellee, v. Louis J. FRANK, Commissioner of Police of the County of Nassau, and the Police Department of the County of Nassau, Defendants-Appellants. ocket 75-7027.
• Court: U.S. Court of Appeals — Second Circuit

Page 1152

521 F.2d 1152

10 Empl. Prac. Dec. P 10,317

Robert W. McCUNE, Plaintiff-Appellee, v. Louis J. FRANK, Commissioner of Police of the County of Nassau, and the Police Department of the County of Nassau, Defendants-Appellants.

No. 871, Docket 75-7027.

United States Court of Appeals Second Circuit.

Argued May 15, 1975.

Decided July 16, 1975.

William S. Norden, Deputy County Atty. (John F. O'Shaughnessy, County Atty. of Nassau County, Mineola, N. Y., Natale C. Tedone, Senior Deputy County Atty., of counsel), for defendants-appellants.

Allen R. Morganstern, Mineola, N. Y. (Richard Hartman, Mineola, N. Y., of counsel), for plaintiff-appellee.

Before SMITH and OAKES, Circuit Judges, and JAMESON, District Judge. ^*

J. JOSEPH SMITH, Circuit Judge:

Robert McCune is a Nassau County Police Officer whose sideburns extend to the lower edge of his earlobe and then flare out to a width of at least an inch and a quarter. On July 5, 1974, he was served with departmental charges specifying that on or about 1200 hours on May 14, 1974, he violated Article VIII, Rule 22 of the Rules and Regulations of the Nassau County Police Department which, as amended by Teletype Order 114 of April 23, 1971, forbids officers of the Department from sporting sideburns that "extend to a point below 3/4 of an inch above the bottom of the ear lobe." ¹ A hearing was scheduled for July 16; McCune appeared and entered a plea of not guilty, and a trial was scheduled for September 17. Preferring to raise his constitutional objections to the regulation in federal court, McCune commenced this action in the United States District Court for the Eastern District of New York on September 5, 1974. His complaint naming as defendants Police Commissioner Louis Frank and the Nassau County Police Department alleged that the Department's grooming regulation was unconstitutional under this court's decision in Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973), ² and that the disciplinary board assigned to hear his case was institutionally biased, in violation of his due process rights. On the date the complaint was filed Judge Rayfiel signed an order temporarily restraining the departmental proceedings against McCune, and this order was continued in effect by agreement pending the outcome of the suit. The parties thereafter "set aside" the bias claim "as an issue not to be litigated," ³ and a hearing on the constitutionality of the grooming regulation was held before Chief Judge Mishler. In a memorandum and order dated December 13, 1974, Judge Mishler held the regulation invalid under Dwen and enjoined its enforcement. We hold that the district court reached the constitutional issue prematurely, and we therefore vacate its order and remand for further proceedings.

I. RES JUDICATA

Initiating legal challenges to grooming regulations appears to be a political obligation of presidents of Policemen's Benevolent Associations. The plaintiff in Dwen v. Barry, supra, 483 F.2d 1126, was president of the Suffolk County PBA. His counterpart in Nassau County, Daniel Greenwald, chose to bring his parallel action in state court. The decision proved unfortunate. The Supreme Court for Nassau County held Article VIII, Rule 22 constitutionally valid and entered summary judgment for defendants. Greenwald v. Frank, 70 Misc.2d 632, 334 N.Y.S.2d 680 (Nassau County Sup. Ct. 1972). The Appellate Division modified the judgment ⁴ and affirmed, holding that "this regulation does not raise issues which rise to the dignity of constitutional questions." 40 A.D.2d 717, 337 N.Y.S.2d 225, 226 (2d Dept. 1972). The Court of Appeals affirmed without opinion. 32 N.Y.2d 862, 346 N.Y.S.2d 529, 299 N.E.2d 895 (1973). Greenwald (perhaps because he lost the lawsuit?) was replaced as president of the PBA by Cliff W. Schmidt, who promptly started another round of litigation. The inspiration for Schmidt's action was this court's decision in Dwen, which was handed down less than three months after the affirmance of Greenwald by the New York Court of Appeals. But Schmidt made the same tactical decision as his predecessor, choosing to bring his action in the Supreme court for Nassau County. Not surprisingly, that court chose to follow the rule laid down by its own appellate superiors rather than this court's decision in Dwen and dismissed Schmidt's action on the precedential authority of Greenwald. Schmidt v. Frank, No. 20014/73 (Nassau County Sup.Ct., Feb. 13, 1974). Seeking refuge in a friendlier forum, Schmidt did not appeal, but commenced virtually the same action in the United States District Court for the Eastern District of New York, only to be met with a dismissal by Judge Costantino on Res judicata grounds. Schmidt v. Frank, 373 F.Supp. 1399 (E.D.N.Y. 1974). ⁵

In the meantime, Greenwald had not given up. The Department brought charges against him for violating Rule 22, in that he refused to trim his moustache so that it would not extend below his upper lip and beyond the ends of his mouth. He was found guilty and fined a day's pay. ⁶ He petitioned the Appellate Division for review, again attacking the rule's constitutionality; his petition was dismissed on the merits, Justice Shapiro dissenting. Greenwald v. Frank, 47 A.D.2d 628, 363 N.Y.S.2d 955 (2d Dept. 1975).

In the district court the defendants claimed that the state court decisions in Greenwald and Schmidt were binding as a matter of full faith and credit ⁷ and Res judicata. ⁸ Although McCune was not a party to those actions, he was a member of the PBA at the time they were decided; therefore, it was urged, he is bound by the state court judgments under a theory of "virtual representation." See 46 Am.Jur.2d Judgments § 539 Et seq. (1969). The district court, apparently agreeing that there was an identity of parties between this and the prior actions, ⁹ held that Res judicata was nonetheless inapplicable because there was no identity of issues.

There is no identity of issues here; the claim which McCune is asserting was not litigated or determined in any of the prior state court proceedings.

In Greenwald, Justice McCaffrey discussed the validity of Rule 22; however, his decision did not rest on a finding of constitutionality. On the contrary, the plaintiff's petition was dismissed solely on the ground that "the petitioner has not demonstrated that a triable issue exists concerning the relationship of his determining his own personal appearance while in uniform to that of the public interest." (Citation omitted.) The affirming opinion held:

"(T)his regulation (Article VIII, Rule 22) does not raise issues which rise to the dignity of constitutional questions."

(Citation omitted.) Thus, prior to the Second Circuit's decision in Dwen v. Barry, 483 F.2d 1126, the New York state courts failed to consider the constitutional issue raised here.

McCune v. Frank, No. 74 C 1279 at 5-6 (E.D.N.Y. Dec. 13, 1974), Quoted in Appendix of Appellant at A501-02.

We cannot agree with the district court. The only conclusion that can possibly be drawn from the state court opinions in Greenwald and Schmidt is that plaintiffs there challenged the constitutionality of Rule 22 and the courts rejected the challenges as frivolous. While we may disagree with the New York courts' conclusions, we cannot ignore the fact that those conclusions were drawn. We hold that the district court erred in its determination that the New York courts did not consider the constitutional issue raised here.

Establishing that the New York courts rendered final judgments on the merits of the same issues raised here does not dispose of the case, however, for we still must decide whether there was a sufficient identity of parties to invoke Res judicata. Kreager v. General Electric Co., 497 F.2d 468, 472 (2d Cir.), Cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974). McCune was not himself a party to the state court actions, and the question is whether the decisions there rendered should nonetheless bind him. One fact in the history of this litigation is extremely significant in this regard: it appears that the New York courts themselves have not accorded their own decisions Res judicata effect. Although Schmidt was no doubt a member of the PBA at the time the first Greenwald case was decided, his state court action was dismissed not on Res judicata grounds but on the precedential authority of Greenwald that is, on Stare decisis grounds. And even when Greenwald sought review of his departmental conviction, his petition was dismissed on its merits, not on the basis of Res judicata. Justice Shapiro's dissent argued that, although Greenwald was bound by Res judicata from relitigating the validity of Rule 22 on its face, he was nonetheless free to raise the issue of whether the Rule was constitutional as applied. 363 N.Y.S.2d 955 at 961.

The demonstrated reluctance of the New York courts to give their prior decisions Res judicata effect should weigh heavily in our consideration of that issue since we are not bound to give a state court decision any greater Res judicata effect than would the rendering court itself. "(W)hat effect a judgment of a state court shall have as Res judicata is a question of state or local law. . . . " Union and Planters' Bank v. Memphis, 189 U.S. 71, 75, 23 S.Ct. 604, 606, 47 L.Ed. 712 (1903). In Civil Rights Act cases such as this, brought under 42 U.S.C. § 1983, the policy of favoring the federal forum, Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), ¹⁰ should make us especially careful to ascertain precisely what effect the state courts would give to their own prior judgments.

In the present case, the record is insufficient for us to make that determination. New York would presumably accord Res judicata effect to the prior judgments if they had been conducted and decided as class actions since under New York's then-effective class action statute, CPLR § 1005 (McKinney 1963), ¹¹ judgments are binding on members of the...