Pliska v. City of Stevens Point, Wis.

• Decision Date: 14 July 1987
• Docket Number: No. 86-2360,86-2360
• Citation: 823 F.2d 1168
• Parties: John A. PLISKA and Stanley T. Pliska, Plaintiffs-Appellants, v. CITY OF STEVENS POINT, WISCONSIN and James Benz, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1168

823 F.2d 1168

John A. PLISKA and Stanley T. Pliska, Plaintiffs-Appellants, v. CITY OF STEVENS POINT, WISCONSIN and James Benz, Defendants-Appellees.

No. 86-2360.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1987.

Decided July 14, 1987.

John T. Manning, Wisconsin Rapids, Wis., for plaintiffs-appellants.

Nadine I. Davy, Anderson, Fisher, Shannon, O'Brien & Rice, Stevens Point, Wis., for defendants-appellees.

Before BAUER, Chief Judge, CUMMINGS and POSNER, Circuit Judges.

BAUER, Chief Judge.

The plaintiffs, John and Stanley Pliska, brought this 42 U.S.C. Sec. 1983 action challenging two City of Stevens Point, Wisconsin ("Stevens Point" or "the City") ordinances as unconstitutionally vague and overbroad. In addition, John Pliska sought damages for an allegedly illegal stop and arrest. The district court held that the constitutional challenges to the ordinances were barred by the doctrine of res judicata and granted summary judgment for the City. A jury found in favor of the police officer on the illegal stop and arrest claims. We affirm.

I.

John Pliska and his father, Stanley Pliska, own various residential properties in Stevens Point. The Building and Premises Maintenance and Occupancy Code of Stevens Point ¹ ("the Code") forbids an owner of a building or premise from maintaining his property in an unsightly or unsanitary manner. In September 1979, the building inspector for the City issued a complaint against John Pliska pursuant to Sec. 21.03(4) of the Code, charging him with "fail[ing] to store and dispose of rubbish [on his property] in a clean and sanitary manner." Pliska was tried before a judge in the Circuit Court of Portage County, Wisconsin. He appeared pro se, was found guilty and fined $30.00. He did not challenge the constitutionality of the ordinance or appeal.

In August 1981, the building inspector issued a complaint against John Pliska for violating Sec. 21.03(11) of the Code, which provided:

No persons shall store, place or allow conditions or materials that may serve as food or harborage for rodents or insects or store, place or allow any health nuisance, source of filth or cause of sickness. No person shall suffer, permit, or allow vegetative matter, which may be unsightly to, incompatible with, or repugnant to neighboring residential or commercial premises.

He was again tried before a judge in the Circuit Court of Portage County. This time he was represented by an attorney who moved to dismiss the complaint asserting that Sec. 21.03(11) was unconstitutional on its face and as applied because it "charges an offense that is unconstitutional and fail[s] to give proper notice of what [conduct it] forbid[s]." The court rejected this defense and found Pliska guilty, ordering him to pay a $25.00 fine. Again, he did not appeal.

In March 1984, John and Stanley Pliska ² were each charged with violating Secs. 21.03(9) and (11) of the Code. At that time, Sec. 21.03(9) provided:

No occupant of a premise or premise unit shall accumulate rubbish, boxes, lumber, scrap metal, or any other material in such a manner that may provide a rat harborage in or about any premise or premise unit.

Both men were represented by an attorney who moved to dismiss the complaints on the ground that the "ordinance required [them] to correct the condition, but did not specify what to do." The motion was denied. A jury found them both guilty and they were each fined $100.00. The court stated, however, that the fine would be reduced to $10.00 if it received notice within thirty days that the Pliskas had cleaned up their properties. According to the Pliskas, at the conclusion of the trial, the City Attorney threatened them with daily fines of up to $100.00 and serial prosecution if they did not clean up their properties. No appeal was taken from the verdicts.

John Pliska subsequently began collecting evidence for a lawsuit in which he intended to show that his property was not in a significantly different condition than that of other property owners in the City who had not been prosecuted under the Code. On June 11, 1984, while Pliska was inspecting properties which he believed to be in violation of the Code, he was stopped and detained by James Benz, a Stevens Point police officer.

The Pliskas brought this 42 U.S.C. Sec. 1983 action against Stevens Point and Benz, alleging violations of their First, Fourth, Ninth and Fourteenth Amendment rights. They sought a declaration that Secs. 21.03(9) and (10) of the current Code are unconstitutionally vague and overbroad on their face and as applied to them. The Pliskas also sought an injunction against further prosecutions and damages for the prior prosecutions. In addition, they claimed that they were being subjected to serial prosecutions for the same conduct and that the City was selectively enforcing the Code against them. Finally, John Pliska alleged that Benz had illegally stopped and arrested him without probable cause while he was gathering evidence for this lawsuit. ³

The district court granted summary judgment to the City on the claims challenging the facial validity of the Code, holding that they were barred by res judicata because they were or should have been raised in the earlier state court proceedings. The court found, however, that the claims of serial and selective prosecution were not barred and scheduled them to proceed to trial along with the illegal stop and arrest claims. On the first day of trial the Pliskas voluntarily dismissed the serial and selective prosecution claims with prejudice. A jury found in favor of Benz and against John Pliska on the illegal stop and arrest claims. The district court denied Pliska's motion for a directed verdict. The Pliskas appeal.

II.

The first issue before this court is whether the district court erred in holding that the constitutional challenges to the facial validity of the ordinances were barred by the prior state court proceedings. Under 28 U.S.C. Sec. 1738, federal courts must give state court judgments the same preclusive effect as would be given under the law of the state that rendered the judgment. Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 106 S.Ct. 768, 769-70, 88 L.Ed.2d 877 (1986); Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982); Torres v. Rebarchak, 814 F.2d 1219, 1222 (7th Cir.1987). This rule applies in Sec. 1983 actions with respect to issues actually litigated as well as to those which could have been but were not litigated in the state proceedings. Migra, 465 U.S. at 83-84, 104 S.Ct. at 897; Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980); Jones v. City of Alton, 757 F.2d 878, 883 (7th Cir.1985); Krison v. Nehls, 767 F.2d 344, 347-48 (7th Cir.1985). More importantly to this case, the rule applies when a party seeks to raise a constitutional challenge in a federal civil rights action which could have been, but was not, raised as a defense in prior state proceedings. Henry v. Farmer City State Bank, 808 F.2d 1228, 1235 (7th Cir.1986); Vandenplas v. City of Muskego, 753 F.2d 555, 559 (7th Cir.), cert. denied, 472 U.S. 1018, 105 S.Ct. 3481, 87 L.Ed.2d 616 (1985); Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982). Federal courts will not apply res judicata, however, if the plaintiff did not have a full and fair opportunity to litigate his claim in state court. Jones, 757 F.2d at 884; Lee, 685 F.2d at 201. This requirement is met as long as the state proceedings satisfy the minimum procedural requirements of the Due Process Clause. Id.

Our determination of whether the Pliskas' constitutional challenges are barred depends initially upon the res judicata effect of the Wisconsin judgments under Wisconsin law. Krison, 767 F.2d at 349; Vandenplas, 753 F.2d at 559. Under Wisconsin law, a final judgment on the merits in a court of competent jurisdiction is conclusive in all subsequent actions between the same parties or their privies as to all matters raised, or which could have been raised, in the former proceedings. DePratt v. West Bend Mutual Ins. Co., 113 Wis.2d 306, 310-11, 334 N.W.2d 883, 885 (1983). A claim can be barred even though the plaintiff seeks remedies or forms of relief that were not demanded in the former action. Id. at 312, 334 N.W.2d at 886; Landess v. Schmidt, 115 Wis.2d 186, 192, 340 N.W.2d 213, 216 (App.1983); Patzer v. Board of Regents, 763 F.2d 851, 855 (7th Cir.1985). Accordingly, in order for the Wisconsin proceedings to bar the current action, there must be: 1) a final judgment on the merits in the state action; 2) an identity of the cause of action in the state proceedings and this suit; and 3) an identity of parties or their privies in the two suits. DePratt, 113 Wis.2d at 311, 334 N.W.2d at 885. Wisconsin has adopted a transactional approach to determining whether two suits involve the same cause of action. Id. at 311-12, 334 N.W.2d at 886 (citing Restatement (Second) of Judgments Sec. 24, comment a (1982)). "[I]f both suits arise from the same transaction, incident or factual situation, res judicata generally will bar the second suit." Krison, 767 F.2d at 349 (quoting Hagee v. City of Evanston, 729 F.2d 510, 513 (7th Cir.1984)).

It is undisputed that the parties here are the same as the parties in the state court proceedings and that final judgments on the merits were entered by the state courts. It is also clear that the transactions are the same because the present claims for declaratory, injunctive, and monetary relief arise from the very fact of the state court proceedings. The unconstitutionality of an ordinance is an affirmative defense that can be raised in a Wisconsin circuit court. In fact, John Pliska raised the defense that Sec. 21.03(11) of the Code was unconstitutionally vague in his 1984 prosecution. That...