Wicker v. Board of Educ. of Knott County, Ky.

• Citation: 826 F.2d 442
• Decision Date: 14 August 1987
• Docket Number: No. 86-5220,86-5220
• Parties: Melvin WICKER, Plaintiff-Appellant, v. BOARD OF EDUCATION OF KNOTT COUNTY, KENTUCKY, et al., Defendants-Appellees. . Cause
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 442

826 F.2d 442

56 USLW 2103

Melvin WICKER, Plaintiff-Appellant, v. BOARD OF EDUCATION OF KNOTT COUNTY, KENTUCKY, et al Defendants-Appellees.

No. 86-5220.

United States Court of Appeals Sixth Circuit.

Cause Argued Jan. 23, 1987.

Decided Aug. 14, 1987.

Daniel L. Hall, Hazard, Ky., for plaintiff-appellant.

Alva Hollon, Jr., argued, Hollon, Hollon and Hollon, Hazard, Ky., Arthur L. Brooks, Lexington, Ky., for defendants-appellees.

Before ENGEL and BOGGS, Circuit Judges, and HILLMAN, District Judge. ^*

ENGEL, Circuit Judge.

In England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), the Supreme Court provided a means whereby a federal court plaintiff could preserve his right to litigate federal issues in federal court even though he had been required by Pullman abstention first to present his state issues to the state courts. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The plaintiff in England was obliged to repair to state court after the federal court abstained in order to let the state court decide those state law issues whose resolution might be dispositive of the entire litigation, thereby avoiding unnecessary confrontation between state and federal interests. The Supreme Court held that the plaintiff was not bound to forgo his federal forum but could, by notifying the parties and the state court that he was reserving his federal issues, limit the state court's determination to state issues even though it might otherwise have had concurrent jurisdiction. England also held, however, that when a federal court The first issue presented in this appeal, not precisely addressed in England, is whether a federal court plaintiff, who brings his state law issues to state court prior to federal abstention, can still reserve his federal issues and return later to federal court. The second issue addressed is the preclusive effect to be given to the state court decisions in the present case, assuming the England reservation preserved plaintiff's right to return to federal court.

abstains and the plaintiff files a reservation in state court, that plaintiff can lose the federal forum if, inconsistent with his reservation, he thereafter fully presents federal issues to the state court.

I.

Appellant Melvin Wicker was appointed to a four-year term as Superintendent of Schools and Secretary of the Board of Education for Knott County, Kentucky, beginning July 1, 1980. The incumbent superintendent, Simeon Fields, resigned on May 30 and Wicker assumed office a month early. The school district then had financial problems at least partially caused by overstaffing. Wicker asserted in the state proceedings that he could not resolve the overstaffing problem because superintendent Fields had failed to send nonrenewal notices by a statutory deadline of April 30, 1980.

The record indicates that Wicker operated in an environment of considerable political controversy. A few months after taking office, Wicker had a disagreement with R.B. Singleton, the high school principal and an unsuccessful candidate for Wicker's position. That disagreement resulted in Singleton's termination and subsequent lawsuit against Wicker and the Board. Dissatisfied teachers and unsuccessful applicants for school staff positions filed other lawsuits.

This political unrest coincided with the reelection campaigns of three Board members. The three successful candidates, whom Wicker had not supported, took office in January 1981 and constituted a new Board majority. The Board filed charges against Wicker on February 17, 1981, and conducted hearings on the charges during March and April of 1981. It found that twelve of the charges against Wicker were true and it subsequently fired him.

Wicker filed legal actions first in federal district court and thereafter in Knott County Kentucky Circuit Court. Wicker alleged in his federal suit that defendant Board members and their attorney had infringed upon his constitutional rights in violation of 42 U.S.C. Sec. 1983. Specifically, Wicker charged that (1) he was denied procedural and substantive due process because he was removed without a fair hearing and without legal cause, (2) the removal deprived him of first amendment rights because it was in reprisal for protected political activity, (3) the defendants conspired to remove him because of his participation in other lawsuits, and (4) Ky.Rev.Stat. Sec. 160.350 (governing removal of school superintendents) ¹ is unconstitutional because it does not provide a fair hearing prior to discharge. After Wicker filed in state court but before that court had taken any action, the federal court abstained. ²

Promptly following the abstention order, Wicker filed in Knott County Circuit Court a reservation of federal issues: "The plaintiff intends, to return to the federal court for disposition of these issues, and he does not submit them for litigation in the state court." Wicker specifically listed the issues reserved, including his substantive and procedural due process claims, his first amendment claims, and his claim that Ky.Rev.Stat. Sec. 160.350 was unconstitutional.

Upon Wicker's return, the federal court concluded that Wicker was barred by lack of standing from raising his claim that Ky.Rev.Stat. Sec. 160.350 was unconstitutional. Wicker does not appeal that determination. The court also found that Wicker's remaining claims were precluded by the state court decisions. Wicker now seeks reversal of the district court's order granting summary judgment to defendants on those claims held barred by the previous state decisions.

II.

As earlier observed, England acknowledged the general validity of preclusion principles and held:

if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then ... he has elected to forgo his right to return to the District Court.

Id. at 419, 84 S.Ct. at 467. However, a party may forestall a conclusion that he elected not to return to federal court by filing in state court a reservation to the disposition of the entire case by the state courts. Such a reservation tells the state courts that he is exposing his federal claims there only so that the state court can construe state issues "in light of" the federal claims as required by Government Employees v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957). The England Court emphasized that an explicit reservation is not vital to preserving the right to return to federal court:

[T]he litigant is in no event to be denied his right to return to the District Court unless it clearly appears that he voluntarily did more than Windsor required and fully litigated his federal claims in the state courts. When the reservation has been made ... his right to return will in all events be preserved.

England, 375 U.S. at 421-22, 84 S.Ct. at 467.

According to his pleadings at least, Wicker carefully followed this procedure, filing an express reservation of issues in Knott County Circuit Court and limiting his state suit to issues of state law. The parties do not dispute that the federal court abstained under Pullman or that Wicker promptly filed a reservation of his federal claims. However, defendants argue that Wicker's reservation did not preserve his right to return to district court.

England does not guarantee an absolute right to return to federal court. By recognizing that a party can forgo that right by freely and unreservedly litigating reserved claims in state court, England preserves a party's right to choose an appropriate forum while at the same time giving deference to a state court decision on an issue that was fully and fairly litigated. This procedure comports with Pullman. Pullman abstention requires a plaintiff to proceed to state court on those issues whose resolution may make unnecessary further action in federal court. The abstention procedure accords "appropriate deference to the respective competence of the state and federal court systems," England, 375 U.S. at 415, 84 S.Ct. at 464, and avoids needless confrontation between state and federal courts. The reservation outlined in England supports the same principles of comity and federalism underlying abstention doctrine. That a party may anticipate a federal abstention order by filing suit in state court in our opinion offends neither the principles underlying abstention nor the procedures laid out in England.

Defendants argue that Wicker should be precluded from returning to federal court because he filed voluntarily in state court, or conversely, that England should apply only where a party has been forced into state court. We do not agree with these arguments or with the cases cited in support The district judge here apparently considered the fact that Wicker voluntarily filed in state court to be an important if not dispositive factor in deciding whether to recognize Wicker's reservation. We are uncertain whether the judge's ruling was influenced by his view that Wicker voluntarily filed in state court before the federal court abstained or by his perception that Wicker did not oppose the abstention order when it was later made. Although Wicker did not file a written response to defendants' motion for abstention, he did orally object to abstention at a pretrial conference held before the previously assigned judge on February 5, 1982. However, even if Wicker had not opposed the abstention order, we would hesitate on that account to bar Wicker's return to federal court.

of them. See, e.g., Roy v. Jones, 484 F.2d 96, 100-01 (3d Cir.1973) (limited by New Jersey Educ. Ass'n v. Burke, 579 F.2d 764, 774 n. 52 (3d Cir.1978)), in which the Third Circuit restricted England to cases where a litigant was sent to state courts against his will; and Henry v. First National Bank of Clarksdale, 595 F.2d 291, 298 n. 1 (5th Cir.1979).

We realize that a...