Rebalancing fairness and efficiency: The offensive use of collateral estoppel in § 1983 actions

Boston University Law Review

Volumn 89, Issue 4, 2009, Pages 1305-1353

  Segal, M D Joshua ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 70449732842     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (261)

1. See Fed. R. Civ. P. 1 ("These rules... shall be construed and administered to secure the just, speedy, and inexpensive determination of every action. ");
2. Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B. U. L. Rev. 1217, 1218 (2008) ("We want the judicial system to be open to claimants, but if the doors of justice are opened too wide, then means are needed for intercepting those cases that, in hindsight, ought not to have been welcomed in the first place.").
3. See George F. Will, Litigation Nation, Wash. Post, Jan. 11, 2009, at B7.
4. See Restatement (Second) of Judgments § 17 (1982) (stating general rules for effects of former adjudication). The term "res judicata" generally encompasses all types of preclusion, but also particularly describes claim preclusion.
5. Black's Law Dictionary 1425 (9th ed. 2009). This Note employs its limited meaning.
6. See Restatement (Second) of Judgments § 27 (stating general rules for issue preclusion). Courts and academics sometimes alternatively describe collateral estoppel as issue preclusion.
7. Id. § 27 cmt. b (designating collateral estoppel as preclusion when second action is brought on a different claim than claim litigated in the first action).
8. See Parklane Hosiery Co. v. Shore, 439 U. S. 322, 329-31 (1979).
9. See Restatement (Second) of Judgments §§ 18-19, 29.
10. U. S. CONST, amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated⋯").
11. See id.
12. See Mapp v. Ohio, 367 U. S. 643, 8657-58 (1961) (mandating the exclusionary rule for evidence seized in violation of the Fourth Amendment for state criminal cases).
13. -42 U. S. C. § 1983 (2006) allows for a civil suit against a state actor who, acting under color of law, violates any rights secured by the constitution or laws of the United States.
14. See infra Part II.
15. For similar facts, see Gentile v. Bauder, 718 So. 2d 781, 782-83 (Fla. 1998). A comparable preclusion argument has also been ventured.
16. *6 (D. Utah May 18, 2006)
17. affd in part, rev'd in part 494 F.3d 891 (10th Cir. 2007), rev'd on qualified immunity grounds sub nom. Pearson v. Callahan, 129 S. Ct. 808 (2009).
18. See supra note 3 and accompanying text. At times, these two doctrines together are called res judicata, however for the purposes of this Note, res judicata refers only to claim preclusion.
19. Cromwell v. County of Sac, 94 U. S. 351, 352 (1876) (explaining the classical formulation for application of res judicata: "[T]he judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose").
20. Lawrence B. Solum, Claim Preclusion and Res Judicata, in 18 James Wm. Moore et al., Moore's Federal Practice § 131.01 (3d ed. 2009).
21. Restatement (Second) of Judgments § 27 (1982).
22. S. Pac. R. R. Co. v. United States, 168 U. S. 1, 48-49 (1897).
23. See infra Part IV and Appendix A.
24. -28 U. S. C. § 1738 (2006) ("The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories-").
25. S. Pac. R. R., 168 U. S. at 49.
26. Montana v. United States, 440 U. S. 147, 153-54 (1979).
27. Restatement (Second) of Judgments § 28 (1982) (describing situations where, even though the requirements are otherwise met, collateral estoppel does not apply for reasons such as avoiding "inequitable administration of the laws" and giving a party the chance to be heard where she "did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action").
28. See Salida Sch. Dist. R-32-J v. Morrison, 732 P.2d 1160, 1166-67 (Colo. 1987) (denying preclusive effect to a holding of liability for back pay in a subsequent employment reinstatement claim because of the decreased incentive to litigate back pay in first action).
29. But see United States v. U. S. Currency in the Amount of $119, 984.00, More or Less, 304 F.3d 165, 175-76 (2d Cir. 2002) (holding that where government had multiple incentives, its decision not to litigate an issue fully did not prohibit the court from barring subsequent litigation as the incentives were not mutually exclusive).
30. See O'Neill v. Merrill Lynch, Pierce, Fenner and Smith, 654 F. Supp. 347, 353 (N. D. III. 1987) ("A difference in the burden of proof applied to two actions precludes the application of collateral estoppel to the issues in the case, unless the burden in the second action is more stringent for the [estopped party] than in die first.");
31. In re Guardianship and Custody of Julian P. H., 675 N. Y. S.2d 848, 851 (N. Y. Fam. Ct. 1998) (applying collateral estoppel in a second action with a lower standard of proof than in the prior action).
32. See Henriksen v. Gleason, 643 N. W.2d 652, 656 (Neb. 2002) ("[Collateral estoppel should not apply when a new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them.").
33. See Siegel v. Time Warner, Inc., 496 F. Supp. 2d 1111, 1127 (CD. Cal. 2007) (denying preclusive effect of a prior holding because it was decided over sixty years ago and relying on that holding would threaten the reliability of the judgment in the present case).
34. See infra notes 43-50 and accompanying text (describing situations in which a party is bound to the holding of a case that he or she was not an original party to that promotes efficiency without offending principles of fairness).
35. See Restatement (Second) of Judgments § 29 cmt. d (1982) (demonstrating that offensive preclusion is invoked "in connection with establishing liability of the defendant in the second action" and that defensive preclusion is "invoked to resist recovery by the plaintiff in the second action").
36. Id. at reporter's note (describing the mutuality rule of preclusion as "[t]he proposition that a non-party cannot be bound by a judgment, unless he is represented by a party or has interests that are derivative from a party....");
37. Black's Law Dictionary supra note 3, at 298 (defining nonmutual collateral estoppel as "[e]stoppel asserted... by a nonparty to an earlier action to prevent a party to that earlier action from relitigating an issue determined against it").
38. See Parklane Hosiery Co. v. Shore, 439 U. S. 322, 329 (1979).
39. Brainerd Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 81, 281 (1957).
40. We assume momentarily that this suit is not barred by res judicata, though it likely is.
41. See infra Appendix B.
42. -439 U. S. 322, 329-33 (1979).
43. Id. at 331.
44. Id.
45. Id. at 8330.
46. Id.
47. Id. at 331.
48. Id.
49. Restatement (Second) ofJudgments§ 41 (1982).
50. United States v. Bonilla Romero, 836 F.2d 39, 43 (1st Cir. 1987). For further discussion of privity
51. see infra Part IV and Appendix C.
52. Taylor v. Sturgell, 128 S. Ct. 2161, 2170-73 (2008).
53. Id. at 2172.
54. Id. (internal quotations omitted).
55. Id. at 2172-73.
56. Id. at 2173 (characterizing the nonparty as having "assume[d] control" which equates to the nonparty having her day in court even though she was not a formal party (quoting Montana v. United States, 440 U. S. 147, 154 (1979)).
57. Id. at 2173.
58. Id.
59. See id. (discussing other definitions of virtual representation and disagreements among the circuits of the United States Court of Appeals).
60. Civil Rights Act, ch. 22, 17 Stat. 13 (1871) (enforcing provisions of the Fourteenth Amendment of the United States Constitution).
61. -42 U. S. C. § 1983 (2006).
62. Mitchum v. Foster, 407 U. S. 225, 242 (1972) (discussing the legislative history of § 1983 and explaining its purpose to "interpose the federal courts between the States and the people, as guardians of the people's federal rights").
63. See supra notes 7-12 and accompanying text.
64. Chapman v. Houston Welfare Rights Org., 441 U. S. 600, 617 (1979) ("Even if claimants are correct in asserting that § 1983 provides a cause of action for all federal statutory claims, it remains true that one cannot go into court and claim a 'violation of § 1983' - for § 1983 by itself does not protect anyone against anything.").
65. Smith v. Wade, 461 U. S. 30, 35-36 (1983).
66. Id. at 51.
67. Id. at 52.
68. Id.
69. See Mendez-Matos v. Municipality of Guaynabo, 557 F.3d 36, 47-56 (1st Cir. 2009) (discussing different scenarios where punitive damages were awarded under § 1983 for Fourth Amendment violations).
70. See supra note 57 and accompanying text.
71. -42 U. S. C. § 1988 (b) (2006). While the statute states, "the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee as part of the costs, "
72. id., this has been interpreted to include only prevailing plaintiffs and not defendants. Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U. S. 782, 790-91 (1989) (explaining that fees are awarded when a prevailing party has "succeeded on any significant claim affording it some of the relief sought").
73. See supra note 62.
74. Tex. State Teachers, 489 U. S. at 792-93.
75. Id. at 792 ("[A] technical victory may be so insignificant... as to be insufficient to support prevailing party status.").
76. Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 9-11 (4th ed. Supp. 2008);
77. see also Forrester v. White, 484 U. S. 219, 229 (1988).
78. Pierson v. Ray, 386 U. S. 547, 553-54 (1967) (granting judges immunity "from liability for damages for acts committed within their judicial jurisdiction").
79. See Cleavinger v. Saxner, 474 U. S. 193, 200 (1985) (providing immunity to federal hearing examiner and administrative law judge, because they "perform functions closely associated with the judicial process").
80. But see Forrester, 484 U. S. at 227-29 (denying judicial immunity to a judge for demoting an employee as he was acting in an administrative rather than judicial function).
81. Imbler v. Pachtman, 424 U. S. 409, 427-28 (1976).
82. Bogan v. Scott-Harris, 523 U. S. 44, 49 (1998).
83. Anderson v. Creighton, 483 U. S. 635, 638-39 (1987).
84. See Harlow v. Fitzgerald, 457 U. S. 800, 813-14 (1982) (discussing qualified immunity for presidential advisors).
85. See Eastland v. U. S. Servicemen's Fund, 421 U. S. 491, 501 (1975).
86. Pulliam v. Allen, 466 U. S. 522, 541-42 (1984) ("We conclude that judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity."). This holding was limited when § 1983 was amended to include that "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U. S. C. § 1983 (2006). Likewise, the attorneys' fees statute, § 1988, was amended so that judges were never liable for attorneys' fees.
87. See Supreme Court of Va. v. Consumers Union of U. S., Inc., 446 U. S. 719, 736-37 (1980).
88. See 42 U. S. C. § 1988 (b);
89. Hutto v. Finney, 437 U. S. 678, 691-92 (1978).
90. See supra note 74.
91. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).
92. Monell v. Dep't of Soc. Servs. of the City of N. Y., 436 U. S. 658, 690 (1978). For an in-depth discussion of the issue, see generally Jack M. Beermann, Municipal Responsibility for Constitutional Torts, 48 DePaulL. Rev. 627 (1999).
93. See Monell, 436 U. S. at 690-91 (allowing § 1983 actions against local governments where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers").
94. This was the actual case in Monell.
95. See Beermann, supra note 79, at 652 n. 127.
96. Pembaur v. City of Cincinnati, 475 U. S. 469, 480 (1986).
97. City of Canton v. Harris, 489 U. S. 378, 380 (1989).
98. Bd. of the County Comm'rs of Bryan County v. Brown, 520 U. S. 397, 409-11 (1997).
99. See Beermann, supra note 79, at 654.
100. -403 U. S. 388, 397 (1971).
101. See Wilkie v. Robbins, 27 S. Ct: 2588, 2618 (2007) (Ginsburg, J., dissenting) ("Thirty-six years ago, the Court created the Bivens remedy. In doing so, it assured that federal officials would be subject to the same constraints as state officials in dealing with the fundamental rights of the people who dwell in this land.").
102. Preiser v. Rodriguez, 411 U. S. 475, 497 (1973) (citations omitted).
103. See generally San Remo Hotel, L. P. v. City of San Francisco, 545 U. S. 323 (2005);
104. Univ. of Tenn. v. Elliott, 478 U. S. 788 (1986);
105. McDonald v. City of West Branch, 466 U. S. 284 (1984);
106. Migra v. Warren City Sch. Dist. Bd. of Educ, 465 U. S. 75 (1984);
107. Haring v. Prosise, 462 U. S. 306 (1983);
108. Allen v. McCurry, 449 U. S. 90 (1980). The Court also considered the role of preclusion in Title VII cases in Kremer v. Chemical Construction Corp., 456 U. S. 461 (1982).
109. -449 U. S. 90, 91 (1980).
110. Id. at 91-92.
111. Id. at 91.
112. Id.
113. Id. at 92.
114. Id. at 96-105.
115. -28 U. S. C. § 1738 (2006).
116. Brief of Respondent at 36, Allen v. McCurry, 449 U. S. 90 (1980) (No. 79-935).
117. Id.
118. Allen, 449 U. S. at 112-15 (Blackmun, J., dissenting) (arguing that only if a party voluntarily submits his federal claims for decision in a state court and these claims are litigated and decided there, should that party be precluded from returning to District Court).
119. Id. at 105.
120. But see id. at 93 n.2 (majority opinion) (noting McCurry's argument that even if collateral estoppel applied, his claim could potentially continue).
121. Id. at 103.
122. Id. at 98 ("[T]he legislative history of § 1983 does not in any clear way suggest that Congress intended to repeal or restrict the traditional doctrines of preclusion. ").
123. -462 U. S. 306 (1983).
124. Id. at 308.
125. Id. at 309.
126. Id. at 323.
127. Id. at 313 (citing Allen, 449 U. S. at 96, 101 (internal quotation marks omitted)).
128. Id. at 316.
129. Id. at 321-22 (rejecting a comparison to a federal habeas claim which is waived with a guilty plea)..
130. -465 U. S. 75 (1984).
131. Id. at 77.
132. Id. at 78.
133. Id.
134. Id. at 78-80.
135. Id. at 80.
136. Id. at 81.
137. Id. at 83 ("The Court in Allen left open the possibility, however, that the preclusive effect of a state-court judgment might be different as to a federal issue that a § 1983 litigant could have raised but did not raise in the earlier state-court proceeding.").
138. Id. at 85.
139. See id.
140. See id. at 84-85.
141. Id. at 84.
142. -466 U. S. 284 (1984).
143. Id. at 285-86.
144. Id. at 286.
145. Id.
146. Id. at 288.
147. Id. at 292. The Court discussed four reasons for this holding: (1) because the arbitrator's experience deals with the laws of a particular field and not the laws of the United States, id. at 290 (citing Alexander v. Gardner-Denver Co., 7415 U. S. 36, 57 (1974));
148. (2) because the arbitrator's authority is narrowly limited by contract and might not extend to § 1983 claims, id., 466 U. S. at 290-91;
149. (3) because in arbitrations resulting from collectivebargaining agreements, usually the interests of the union take precedence over those of the individual employee, id. at 291;
150. and (4) because judicial fact finding tends to be more extensive than the arbitral approach, id.
151. -478 U. S. 788 (1986).
152. Id. at 794.
153. Id. at 799 (quoting United States v. Utah Constr. and Mining Co., 384 U. S. 394, 422 (1966)).
154. Id. at 797-98 (citing Utah Constr. and Mining at 421-22 and Kremer v. Chem. Constr. Corp., 456 U. S. 461 (1982)) (suggesting that "giving preclusive effect to administrative factfinding serves the value underlying general principles of collateral estoppel: enforcing repose," which includes avoiding unnecessary costs and repetitive litigation).
155. Id. at 798.
156. -545 U. S. 323 (2005).
157. Id. at 337. For more background on takings claims
158. see Ann K. Wooster, Annotation, What Constitutes Taking of Property Requiring Compensation Under Takings Clause of Fifth Amendment to United States Constitution - Supreme Court Cases, 10 A. L. R. FED. 2d 231 (2006) (stating that a takings claim arises when the state takes property from an individual without providing just compensation).
159. San Remo Hotel, 545 U. S. at 338 ("Federal courts... are not free to disregard 28 U. S. C. § 1738 simply to guarantee that all takings plaintiffs can have their day in federal court.").
160. Id.
161. Id. at 342.
162. Id. at 344.
163. Id. at 344-45.
164. See id. at 345 (applying the "normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal").
165. Many of the cases cited in this section were found in, or were cited in cases found in
166. E. H. Schopler, Annotation, Mutuality of Estoppel as Prerequisite of Availability of Doctrine of Collateral Estoppel to a Stranger to the Judgment, 31 A. L. R.3d 1044 (1970). While this article offered much assistance, all mistakes are of course my own.
167. See infra notes 146-149 and Appendix A (providing collateral estoppel rules and cases decided in each state).
168. Restatement (Second) of Judgments § 27 (1982).
169. Some states also require mutuality - that the party seeking estoppel be a party to the prior action.
170. See infra note 151 for a survey of whether each state allows offensive nonmutual collateral estoppel.
171. Restatement (Second) of Judgments § 27.
172. When discussing whether litigation is valid, states use a number of different metrics including: that the issue was actually litigated, that the issue was resolved by a final judgment on the merits, that the first litigation offered a full and fair opportunity for the estopped party to be heard, that a court of competent jurisdiction presided over the action, and that the estopped party lost the previous action. When discussing the fourth issue, states describe the issue as necessary to the prior judgment or material and relevant to the prior action's disposition.
173. See infra Appendix A for the different requirements for collateral estoppel in each state.
174. See infra Appendix A.
175. See, e.g., Moore v. Commonwealth, 954 S.W.2d 317, 319 (Ky. 1997);
176. In re Brauer, 890 N. E.2d 847, 857 (Mass. 2008);
177. Whitley v. Commonwealth, 538 S. E.2d 296, 299 (Va. 2000).
178. These states are Vermont, Washington, and Wisconsin.
179. See, e.g., Trickett v. Ochs, 838 A.2d 66, 70 (Vt. 2003);
180. State v. Harrison, 61 P.3d 1104, 1109 (Wash. 2003);
181. Mrozek v. Intra Fin. Corp., 699 N. W.2d 54, 61-62 (Wis. 2005) ("[T]he circuit court must... conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand."). Wisconsin offers factors to consider in determining whether application of collateral estoppel is fair. The circuit court considers the following factors: (1) whether the party against whom preclusion is sought could have obtained review of the judgment; (2) whether the question is one of law that involves two distinct claims or intervening contextual shifts in the law; (3) whether there are apt to be significant differences in the quality or extensiveness of the two proceedings such that relitigation of the issue is warranted; (4) whether the burden of persuasion has shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and (5) whether matters of public policy or individual circumstances would render the application of issue preclusion fundamentally unfair, including whether the party against whom preclusion is sought had an inadequate opportunity or incentive to obtain a full and fair adjudication of the issue in the initial litigation. Id.
182. See supra notes 34-39 and accompanying text.
183. See infra Appendix B.
184. See supra notes 110-121 and accompanying text..
185. See infra notes 167-186 and accompanying text.
186. Black's Law Dictionary, supra note 3, at 1237.
187. I include in this category states that do not define privity explicitly but merely acknowledge its existence and make a case-by-case analysis, states that define a second party to be in privity with the first when it represents the same legal right, and those that define it as a substantial identity between the parties.
188. See infra Appendix C.
189. See infra Appendix C.
190. Some of these definitions of privity include: privity in blood, estate, or law; having a mutual or successive relationship to the same legal rights; those bound by the previous judgment; and a working or functional relationship between the parties.
191. See infra Appendix C.
192. This includes both parties that controlled the litigation and those that had a reasonable opportunity to be heard and/or appeal the litigation.
193. Depending on the jurisdiction, this can either be interests actually litigated or just a general identity of interest between the parties.
194. See infra Appendix C.
195. See infra Appendix C.
196. *2 n. 3 (M. D. Ala. Feb. 21, 2008).
197. See supra notes 7-12 and accompanying text.
198. The only apparent exception to this principle is through the idea of precedent or stare decisis. If a court determined that a particular type of action violated a constitutional right, even in a criminal case, then that legal determination has full weight as a legal precedent in subsequent judicial actions. This is related, but theoretically distinct from issues of preclusion. The criminal court determination, in our hypothetical, that this officer's action was unconstitutional would not prevent relitigation of the issue of whether the police officer acted in the accused manner, but simply whether those actions were unconstitutional. If the court in the civil trial afforded the criminal court collateral estoppel effect, then no question would remain whether the officer violated the plaintiff's constitutional rights - the entire issue of the constitutional violation would be binding. While this might be a distinction without a difference, these are sufficiently separate concepts to merit focusing only on collateral estoppel here.
199. See supra note 162 and accompanying text (suggesting that courts generally do not consider an employee in privity with her employer).
200. See supra notes 110-121 and accompanying text.
201. See Farley v. N. Bergen Twp. Bd. of Educ, 705 F. Supp. 223, 225 (D. N. J. 1989).
202. Id. at 227.
203. In New Jersey, this would include any issues necessarily decided in the arbitration hearing. Matter of Estate of Dawson, 641 A.2d 1026, 1034-35 (N. J. 1994). For an example
204. see Farley, 705 F. Supp. at 228-29 (finding that a demoted educator who prevailed in administrative proceeding could use earlier findings to preclude Board of Education from relitigating "the factual issues concerning the circumstances surrounding" the demotion).
205. See supra notes 110-121, 122-127 and accompanying text.
206. See, e.g., Negin v. City of Mentor, 601 F. Supp. 1502, 1503 (N. D. Ohio 1985).
207. Id. at 1505.
208. Restatement (Second) of Judgments § 19 (1982).
209. See supra notes 122-127 and accompanying text.
210. Rourke v. N. Y. State Dept. of Corr. Serv., 915 F. Supp. 525, 532 (N. D. N. Y. 1995).
211. Id.
212. Id. at 532-33.
213. Id. at 535-36.
214. See Wilson v. City of Chicago, 900 F. Supp. 1015, 1019 (N. D. 111. 1995).
215. See id. at 1026-29.
216. See Parker v. Williams, 855 F.2d 763, 774-75 (11th Cir. 1988)
217. rev'd in part, 862 F.2d 1471, 1481 (11th Cir. 1989)
218. overruled on other grounds by Turquitt v. Jefferson County, Ala., 137 F.3d 1285, 1292 (11 th Cir. 1998).
219. For another case in this category, see Czajkowski v. City of Chicago, 810 F. Supp. 1428, 1434 (N. D. Ill. 1992) (allowing a woman who sued her police officer husband and others under § 1983 to preclude husband from relitigating the factual question of domestic abuse, as it was decided in a previous criminal trial that he was guilty of battery against her).
220. See supra notes 175-178 and accompanying text.
221. Benjamin v. Coughlin, 905 F.2d 571, 573-74 (2d Cir. 1990).
222. People v. Lewis, 502 N. E.2d 988, 989 (N. Y. 1986);
223. Overton v. Coughlin, 520 N. Y. S.2d 32, 34 (N. Y. App. Div. 1987).
224. Benjamin, 905 F.2d at 576.
225. For more on the distinction between collateral estoppel and precedent or stare decisis, see Hiroshi Motomura, Using Judgments as Evidence, 70 Minn. L. Rev. 979, 1021 (1986) ("[A]s long as issues arise in the murky area between questions of law appropriate for collateral estoppel and other 'unmixed' questions of law appropriate for stare decisis, courts will continue to view stare decisis as one means of using a prior judgment against a nonparty when collateral estoppel is unavailable."). The Supreme Court has held that a state cannot use precedent to deprive a citizen of due process.
226. Jefferson County, 517 U. S. 793, 805 (1996) (allowing a party to relitigate constitutional question when it had "neither notice of, nor sufficient representation in" prior litigation because not doing so would implicate federal due process concerns).
227. -388 U. S. 1, 12 (1967) (denying effect to a Virginia statute prohibiting interracial marriage based on the Fourteenth Amendment).
228. See Richards, 8517 U. S. at 805 ("A state court's freedom to rely on prior precedent in rejecting a litigant's claims does not afford it similar freedom to bind a litigant to a prior judgment to which he was not a party.").
229. Bilida v. McCleod, 211 F.3d 166 (1st Cir. 2000).
230. Id. at 169.
231. Id. at 169-70.
232. Id.
233. Id. at 170-71. The court recognized that "most [Rhode Island] precedent indicates that individual state officials are not bound, in their individual capacities, by determinations adverse to the state in prior criminal cases." Id. at 170.
234. See Parklane Hosiery Co. v. Shore, 439 U. S. 322, 329-31 (1979) (arguing that offensive use of collateral estoppel "may be unfair to a defendant").
235. See, e.g., Wiggins v. Rhode Island, 326 F. Supp. 2d 297, 307-08 (D. R. I. 2004).
236. See, e.g., Polk v. Montgomery County., 782 F.2d 1196, 1202 (4th Cir. 1986).
237. This is especially true, as it would violate his Fifth Amendment constitutional due process rights. Parklane Hosiery, 439 U. S. at 327 n. 7 ("It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.").
238. I am reminded of the image of a sheriff sitting next to a prosecutor throughout a criminal trial, outlining strategy and controlling the litigation.
239. See, e.g.. My Cousin Vinny (Twentieth Century Fox 1992) (portraying a criminal trial where Sheriff Dean Farley investigated the alleged crime, sat next to and consulted with District Attorney Jim Trotter, III at trial, and testified as a key witness).
240. Jayel Corp. v. Cochran, 234 S. W.3d 278, 282-84 (Ark. 2006) (citing examples of relationships that the court found to support privity for purposes of res judicata).
241. -128 S. Ct. 2161, 2172-74 (2008) (discussing virtual representation);
242. see supra notes 43-50 and accompanying text..
243. Taylor, 128 S. Ct. at 2173 (citations omitted).
244. See David F. Hamilton, The Importance and Overuse of Policy and Custom Claims: A View from One Trench, 48 DePaul L. Rev. 723, 730-31 (1999) ("[A] commitment by the local government to indemnify the individual defendants certainly offers a way for the defendants to maintain a united front against the plaintiff.");
245. Martin A. Schwartz, Should Juries Be Informed That Municipality Will Indemnify Officer's § 1983 Liability for Constitutional Wrongdoing?, 86 Iowa L. Rev. 1209, 1216-24 (2001) (discussing indemnification of compensatory and punitive damages in § 1983 actions);
246. Peter Cassat, Comment, Statutory Indemnification in Section 1983 Actions Based on Police Misconduct: Choosing a Forum, 1988 Wis. L. Rev. 605, 608-12 (discussing the Wisconsin governmental indemnification statute and its coverage of police officers).
247. Schwartz, supra note 203, at 1218-19.
248. Id. (suggesting that indemnification is necessary for the state to recruit talented officers and to encourage them to protect the public zealously).
249. Hamilton, supra note 203, at 730. The question of indemnification is typically a local issue, although some states set baseline standards.
250. See id. at 730-31.
251. Cf. id. at 731-32 (discussing bifurcation in trials where both a municipality and individuals are defendants).
252. Schwartz, supra note 203, at 1218-19 ("[I]ndemnification enhances enforcement by insuring that the defendant officer is able to compensate the § 1983 claimant.").
253. Blanca Fromm, Bringing Settlement Out of the Shadows: Information About Settlement in an Age of Confidentiality, 48 UCLAL. Rev. 663, 664 (2001).
254. Parklane Hosiery Co. v. Shore, 439 U. S. 322, 327 n. 7 (1979) (acknowledging due process concerns with binding someone to a judgment to which he was a stranger).
255. See Ableman v. Booth, 62 U. S. (21 How.) 506, 518 (1859). Of course, states do interpret the federal constitution. Nonetheless, ultimate authority for interpretation rests with the federal judiciary.
256. The agency is still technically the party to the suit. N. Y. Fam. Ct. Act § 1032 (McKinney 1999) (providing that a child protective agency or a person on the court's direction may originate a proceeding under the article).
257. N. Y. C. P. L. R. § 3020 (d) (McKinney 1991).
258. Ryan v. N. Y. Tel. Co., 467 N. E.2d 487, 491 (N. Y. 1984) (discussing the "actual extent of litigation" as one test measuring whether a collaterally estopped party had a full and fair opportunity to litigate).
259. For similar facts, see First Amended Complaint at 3-11, Demtchenko v. Tuffarelli, No. 08 CV 00861 (PKC) (S. D. N. Y. April 28, 2008) (alleging an illegal seizure of a child from his home).
260. Restatement (Second) of Judgments § 27 (1982).
261. Id.; see supra notes 143-145 and accompanying text (discussing the underlying framework of approaches to collateral estoppel in the Restatement (Second) of Judgments).