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HOTEL & RESTAURANT EMPLES. INTL. UNION LOCAL 54 V.

August 25, 1986

HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54 and FRANK GERACE, PRESIDENT HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54 and FRANK MATERIO, BUSINESS AGENT HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54, Plaintiffs,
v.
WALTER N. READ, CHAIRMAN, DONALD THOMAS, COMMISSIONER, CARL ZEITZ, COMMISSIONER, JOEL JACOBSON, COMMISSIONER, and E. KENNETH BURDGE, COMMISSIONER, CONSTITUTING THE NEW JERSEY CASINO CONTROL COMMISSION, and THOMAS O'BRIEN, DIRECTOR DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF GAMING ENFORCEMENT and DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF GAMING ENFORCEMENT and THOMAS KEAN, GOVERNOR, Defendants



The opinion of the court was delivered by: BROTMAN

 The Hotel and Restaurant Employees and Bartenders International Union Local 54 ("Local 54") and its President, Frank Gerace, initiated this action in order to prevent the enforcement of sections 86 and 93 of the New Jersey Casino Control Act ("Casino Control Act"), N.J.S.A. 5:12-86, 93, against the union and officers Gerace, Frank Materio and Karlos LaSane. Plaintiffs also sought a declaratory judgment that the statute is unconstitutional and damages from defendants, who include the Casino Control Commission (the "Commission"), the Chairman, Walter Read, and other members of the Commission, the New Jersey Division of Gaming Enforcement (the "Division"), the Director of the Division, Thomas O'Brien, and the Governor of New Jersey, Thomas Kean.

 Presently before the court are several motions. First, defendants seek to dismiss Local 54's complaint due to the doctrine of res judicata. Second, both sides have made cross-motions for summary judgment. The court heard oral argument on these motions on February 14, 1986 and reserved its decision.

 Based on the submissions and arguments of the parties, the court finds that defendants' motion to dismiss is unwarranted, but the court will grant summary judgment in favor of defendants based on the absence of a genuine issue of material fact.

 I. Procedural Background

 The history of this litigation, which began in 1981, is lengthy and complex, involving proceedings before the Commission, the New Jersey state courts, this court, the Third Circuit Court of Appeals, and the United States Supreme Court. This court detailed most of the procedural background in a series of earlier opinions, most recently Hotel and Restaurant Employees and Bartenders International Union Local 54 v. Read, 597 F. Supp. 1431, 1434-37 (D.N.J. 1984) ("Read I"). See also Hotel and Restaurant Employees and Bartenders International Union Local 54 v. Read, 597 F. Supp. 1451 (D.N.J. 1984), aff'd 772 F.2d 895 (3d Cir. 1985) ("Read II"); Hotel and Restaurant Employees and Bartenders International Union Local 54 v. Danzinger, 536 F. Supp. 317 (D.N.J. 1982), rev'd 709 F.2d 815 (3d Cir. 1983) ("Danzinger"), vacated and remanded sub. nom. Brown v. Hotel and Restaurant Employees and Bartenders International Union Local 54, 468 U.S. 491, 104 S. Ct. 3179, 82 L. Ed. 2d 373 (1984) ("Brown"). The court need not repeat its recitation of the events leading up to Read I.

 In Read I this court granted the motion of Gerace and Materio to intervene in their own behalf in this action. But the court also denied the motions by all plaintiffs to enjoin preliminarily the enforcement of the Commission's order of September 12, 1984 which required the removal of Gerace, Materio and LaSane from their union positions. The court based its decision in part on the conclusion that plaintiffs had little likelihood of success of the merits of their claim that the Commissions' actions pursuant to the Casino Control Act violated their first amendment rights. Read I, supra, 597 F. Supp. at 1446-48.

 The union officials advised this court and the Appellate Division that they wished to have their constitutional claims decided in state court. Appendix to Defendants' Motion to Dismiss at 1-4. By contrast, Local 54 declared its desire to have its constitutional claims decided in federal court. Id. at 5-8.

 The Appellate Division rejected all challenges to defendants' actions raised by the union officials. In the Matter of Hotel and Restaurant Employees and Bartenders International Union Local 54, 203 N.J. Super. 297, 496 A.2d 1111 (App. Div. 1985)("Appellate Division Opinion"). On the federal claims the Appellate Division held that the Commission did not violate the first amendment associational rights of Gerace and Materio, that Section 86(f) of the Casino Control Act is not vague on its face or as applied to the union officials, and that the Commission did not deprive Gerace of his due process rights. See id. at 322-39.

 On November 1, 1985 the New Jersey Supreme Court denied the petitions for certification filed by the union officials. Defendants' Appendix at 14-15. Gerace and Materio subsequently petitioned the United States Supreme Court for a writ of certiorari, but the Court denied that petition on March 24, 1986. The union chose to return to this court where both sides have filed the pending motions.

 II. Defendants' Motion to Dismiss

 In their motion to dismiss, defendants argue that all of the issues remaining to be decided in Local 54's complaint have already been litigated and decided in the Appellate Division proceedings. They contend that the union's federal claims are so closely linked to those previously asserted by the union officials that res judicata now requires a dismissal of Local 54's complaint. The union counters that its federal claims are sufficiently distinct from Gerace and Materio to preclude the application of that doctrine.

 The court must analyze this motion in the context of its earlier decision to invoke the Pullman abstention doctrine. See Discussion in Read I, supra, 597 F. Supp. at 1441-45. The court abstained in light of several then-unresolved questions involving the interpretation of New Jersey's Casino Control Act as it applied to the plaintiffs. Despite abstaining, however, the court noted the applicability of England under which "plaintiffs are entitled to reserve the right to have their federal claims heard in this court. . . ." Id. at 1441; England, supra, 375 U.S. at 419; see also Migra v. Warren City School District Board of Education, 465 U.S. 75, n.7, 104 S. Ct. 892, 898, 79 L. Ed. 2d 56 (1984) ("Migra").

 In England the Supreme Court faced a situation similar to the present case in that the state court was asked to construe a state statute "against the backdrop" of a federal constitutional challenge. 375 U.S. at 420. Whether or not the state court chose to address the federal constitutional issue, a party could still in advance of a state court action reserve the right to return to federal court to litigate that federal issue. Id. at 421. The England court held that when a litigant makes this explicit reservation, "his right to return [to the federal court] will in all events be preserved." Id. at 422. Even in the absence of an express reservation, "in no event" can a litigant be denied his right to return unless he "voluntarily . . . and fully litigated his federal claims in the state courts." Id. at 421.

 In the present case Local 54 explicitly reserved its right, pursuant to England and Read I, to return to this court with its federal claims. See Defendants' Appendix at 5-8. Although Gerace and Materio "fully litigated" their federal claims in state court, it is clear that Local 54 did not. *fn1" Given the union's obvious rights under England, defendants' motion to dismiss amounts to an argument that the union officials' litigation of their federal claims effectively amounted to a full litigation of Local 54's claims as well.

 Within this context the court must now consider the application of res judicata. That doctrine holds that a "federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra, supra, 104 S. Ct. at 896; accord Allen v. McCurry, 449 U.S. 90, 96, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980). Res judicata actually consists of two separate concepts: "claim preclusion" and "issue preclusion". Claim preclusion forecloses "litigation of a matter that has never been litigated, because of a determination that it should have been advanced in an earlier suit." Migra, supra, 104 S. Ct. at 894 n.1. By comparison, issue preclusion forecloses "relitigation of a matter that has been litigated and decided." Id. (emphasis added). *fn2" One of the issues at stake here is whether in fact the claims now raised by the union have been litigated or not before the state court. Even if the claims have been litigated, however, the question will still remain whether Local 54 is precluded from litigating them now.

 Defendants have asserted that either claim preclusion or issue preclusion justifies dismissal of plaintiff's complaint. In fact, both concepts involve the interpretation of similar factors in the case at bar. For example, claim preclusion bars relitigation of a claim if the party asserting the doctrine shows that there has been

 
(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same causes of action.

 United States v. Athlone Industries, Inc., 746 F.2d 977, 983 (3d Cir. 1984). Issue preclusion also applies only in a circumstance in which one of the same "parties or their privies" have attempted to relitigate the same issue in a subsequent proceeding between them. Washington Township v. Gould, 39 N.J. 527, 533, 189 A.2d 697 (1963). Thus under either claim preclusion or issue preclusion theory the court is faced with the same threshold concern: Are the two litigants in the current action identical to or in privity with parties who have previously litigated the same issue? If not, the identity of the "causes of action" becomes immaterial.

 In the instant case defendants concede that Local 54 and the individual officials are separate parties. See e.g., Defendants' Reply Brief in Support of Motion to Dismiss at 3. The only question is whether the union was in ...


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