Decision Date17 December 1986
Docket NumberNo. F 86-101.,F 86-101.
Citation651 F. Supp. 778
PartiesBruce I. OLIVER, Mary S. Simler, Thomas J. Pabst and John F. Sawyer, Plaintiffs, v. FORT WAYNE EDUCATION ASSOCIATION, INC., Fort Wayne Community Schools and Ronald G. Kleopfer, J.H. Towels, Stephen Corona, Helen P. Brown, Richard T. Doermer, Ann K. Silletto and Eugene A. Yergens in their capacity as members of the Board of School Trustees For the Fort Wayne Community Schools, Defendants.
CourtU.S. District Court — Northern District of Indiana

William T. Hopkins, Jr., Gallucci, Hopkins & Theisen, Fort Wayne, Ind., for plaintiffs.

James P. Fenton, Bert J. Dahm, Joshua I. Tourkow, Frederick R. Tourkow, Fort Wayne, Ind., Richard J. Darko, Indianapolis, Ind., for defendants.


ALLEN SHARP, Chief Judge.


This case is before the court on the defendant's, Fort Wayne Education Association, Inc. (FWEA), Motion to Dismiss or Abstain filed on July 14, 1986. The motion sought dismissal pursuant to Rule 12(b)(6) of the federal Rules of Civil Procedure or, in the alternative, a stay of proceedings in this case pending resolution of the issues in the state court actions. The plaintiffs filed a memorandum in opposition on July 29, 1986. Subsequently, during a pretrial conference the court ordered the defendant to file any supplemental briefs on the abstention issue by October 1, 1986, and the plaintiffs to respond by November 3, 1986. Oral argument on the abstention issue was heard on December 5, 1986. The matter is now ripe for decision.

As in most abstention cases the procedural facts are critical to the abstention analysis. In this case the facts began to develop when the Fort Wayne Community School Corporation (FWCS) and the FWEA entered into a collective bargaining agreement which permitted the FWEA, the exclusive bargaining representative, to charge a fair share representation fee to members of the bargaining unit who chose not to join the FWEA. The bargaining agreement permits payroll deductions only after a teacher voluntarily authorizes the FWCS to make a payroll deduction. In Indiana, there is no statutory or other basis which the FWEA may utilize to compel deduction of fair share representation fees from a teacher's salary, until a judgment has established the amount of the debt. Consequently, after several years of nonpayment the FWEA filed several suits in state court requesting a judgment to establish the amount of the debts owed by the teachers who did not pay their fair share representation fee. When this case was filed there were four cases which had been filed and were pending in the state courts: cause numbers CC-83-1304 and CC-83-1305 filed on August 8, 1983, in the Allen Circuit Court; and cause numbers C-85-274 and C-85-275 filed on August 20, 1985 in Allen Circuit Court and Dekalb Circuit Court but venued to Noble Circuit Court. CC-83-1304 and CC-83-1305 were consolidated, and the defendants filed an answer and counterclaim on October 27, 1983. The counterclaim alleged in pertinent part:

22. This counterclaim arises under 42 U.S.C. § 1983. The Courts of Indiana have jurisdiction over claims arising under the United States Constitution. The Courts of Indiana also have jurisdiction over claims arising under the Constitution of the State of Indiana.


32. As a result of the foregoing, Defendants have been deprived of rights, privileges and immunities secured to the Defendants by the Constitution of the United States, in particular, Defendants' rights of freedom of association and speech under the First Amendment of the United States Constitution; and the right not to be deprived of property without due process of law, under the Fifth and Fourteenth Amendments of the United States Constitution; as well as rights secured by the Indiana Constitution and defendants have been damaged thereby.

Similarly, in the cases venued to Noble Circuit Court the defendants' answers filed on October 15, 1985 and October 17, 1985 included the following affirmative defense:

4. Plaintiff's collection and use of fees allegedly owed by Defendant for political and ideological purposes to which Defendants object, is in violation of and barred by Defendants' rights of free speech and political expression as guaranteed by the First Amendment to the United States Constitution and Article 1, § 9 of the Constitution of Indiana.

In Allen Circuit Court, Cause No. CC-83-1304 a "trial to a non-advisory jury over nine (9) days resulted in favorable verdicts to Plaintiff but for sums which were less than those which Plaintiff charged and sought in its prayer to collect on issues framed in the Answers that, inter alia, the fees were in excess of costs and expenses authorized in the collective bargaining agreement and in law for contract adjustment, collective bargaining and grievance adjustment in the local bargaining unit." The jury returned the verdict in March 1985. On March 17, 1986 the Plaintiffs filed their claims in Federal Court. The complaint in this case alleged in pertinent part:

Defendants FWCS and its Board of School Trustees are depriving the Plaintiffs of their right of freedoms of expression and association guaranteed by the First Amendment of the United States Constitution, such deprivation being actionable under 42 U.S.C. § 1983,


Defendant FWEA acted in concert with the FWCS and its Board of School Trustees in establishing Article XXIII(G) and, in acting under color of state law by depriving the Plaintiffs of their right of freedoms of expression and association guaranteed by the First Amendment of the United States Constitution, actionable under 42 U.S.C. § 1983

Apparently the state court bifurcated the questions of law "which could not be reached on the barren record." On March 14, 1986 Judge Ryan, Allen Circuit Court, conducted a hearing on the unresolved questions of law. During the colloquy Judge Ryan inquired about whether the defendants' counterclaims challenged merely the implementation of the clause and Mr. Hopkins, who represented defendants in that case and the plaintiffs in this case, responded:

But also the clause itself, Your Honor. We start out and there's negotiations for a provision, and we believe that the Board and the Union have an obligation to protect the rights under the constitution of federal and state of the non-member people.

(Page 21, lines 9-14, transcript of hearing before Judge Ryan on March 14, 1986), and:

But the question of whether the procedures involved were appropriate, were lawful, were constitutional, that's what this counterclaim is about.

(Page 41, lines 19-22, transcript of hearing before Judge Ryan on March 14, 1986). Judge Ryan remarked that he wanted to try and "save this verdict in a manner which comports to what he believed to be more than lip service to the First Amendment and to the due process clause so that you don't make a career out of trying these lawsuits ..." (Page 41, lines 8-12)

The relief sought by the defendants counterclaim in state court was:

An injunction barring Plaintiff, now and in the future, from instituting judicial action to collect any service fee from Defendants which Plaintiff knows does not accurately reflect a nonmembers' pro-rata share of the costs of collective bargaining, contract administration and grievance handling; that Defendants be awarded costs for the defense of the original action and for the prosecution of this counterclaim; that Defendants be awarded attorneys' fees for the defense of this action and for the prosecution of this counterclaim, pursuant to, but not limited by, 42 U.S.C. § 1988; in the event that the Court determines that the Defendants, or any of them, are liable to the Plaintiff, determine the amount of such liability only after the Plaintiff has proved by clear and convincing evidence the amount it spends for collective bargaining, contract administration, and grievance adjustment; and, in any event, such liability cannot exceed that portion of membership dues which is retained by the Plaintiff; and that the Court award Defendants such other and further legal and equitable relief as is just.

The relief sought by the complaint in this case is to:

(1) declare Article XXIII(G) null and void, (2) enjoin the Defendants from attempting to enforce Article XXIII(G) in any manner, (3) award reasonable attorney fees to Plaintiffs.

Judge Ryan entered an Order on August 5, 1986 (Appendix A). It is unquestionably clear from Judge Ryan's Order that he considered the constitutional challenges to the contract clause permitting the FWEA to collect a fair share representation fee. Further, that Order, which corrected and entered the jury verdict was certified for interlocutory appeal under Indiana Rules of Appellate Procedure, Appellate Ruel 4(B)(6) on October 6, 1986 (Appendix B). This court was informed by the parties that that appeal is pending in the Court of Appeals of Indiana.


The question before the court is whether to abstain from exercising federal jurisdiction. The Supreme Court of the United States held in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), that "abstention from exercise of federal jurisdiction is the exception not the rule." Id. at 813, 96 S.Ct. at 1244; see also, McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910). There are four recognized categories of abstention. Id. Abstention is appropriate when a case involving a federal constitutional issue "might be mooted or presented in a different posture by a state court determination of pertinent state law" County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). Abstention is also appropriate where the issues presented are difficult questions of state law involving policy problems which transcend the issues in the case at bar. See, Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959)...

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  • Oliver v. Fort Wayne Educ. Ass'n, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 9, 1987
    ...fee was unconstitutional on its face. The district court abstained, staying the federal proceedings. See Oliver v. Fort Wayne Education Association, 651 F.Supp. 778 (N.D.Ind.1986). The plaintiffs appealed the grant of the stay. We have jurisdiction under Drexler v. Southwest Dubois School C......

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