William Thistlethwaite and Sol Lockshon v. The City of New York

MOORE, Circuit Judge:

Appellants, William Thistlethwaite and Sol Lockshon, were convicted in New York County Criminal Court of violating Section 13 of New York City’s Parks, Recreation and Cultural Affairs Administration’s Rules and Regulations by distributing pamphlets of a political nature in Central Park without the permit required by that section.1 They *341were each sentenced to pay a fine of $10 or to spend two days in jail. Both paid the fine. They then appealed to the Appellate Term where their convictions were affirmed without opinion. Application for leave to appeal to the New York Court of Appeals was denied, and appellants chose not to petition for review of this order by means of certiorari.

Appellants then brought the present action in the Federal District Court, seeking, on the basis of the Civil Rights Act, 42 U.S.C. § 1983 (1970), a declaratory judgment to the effect that Regulation 13 and the general permit dispensing system2 were unconstitutional. As part of this action, appellants moved for a preliminary injunction against the defendants, their agents and employees, to prevent them from enforcing the regulations. The judge below held an evidentiary hearing in connection with this motion and decided against the appellants. Thereafter, the judge decided against the appellants on the merits of their case, holding them barred by res judicata.

The judge below, in reaching his decision, concluded that since there is no doubt that state forums can be appropriate for the determination of issues arising under the Federal Constitution, if an issue is argued before a state tribunal, its resolution at that level carries with it all the usual effects of res judicata required by full faith and credit. Thus, while it is clearly a federal policy to allow to every plaintiff with a colorable claim his day in court, it is equally clearly not a court’s duty to encourage career litigants by allowing federal duplication of state trials. Thus, the District Court concluded, where there has been a clear election by the plaintiff of the state forum, that court’s decision may, under the concepts of res judicata, preclude a new consideration of the Constitutional claims by federal courts in a suit under the Civil Rights Act.

Appellants vigorously contest his conclusion. It is argued that this suit which seeks prospective relief cannot be barred by a prior suit based on facts locked soundly in the past. It is further submitted that a § 1983 action is separate and different from any other cause of action arising under the same facts, and the usual dictates of res judicata should therefore bow to the intent of Congress to create an alternative method of vindicating Constitutional rights. Finally it is argued that there can be no election of forum in a criminal action, and that it is improper to require a defendant' to stand mute in the dock to avoid “electing” against his right to a federal forum.

In the current context we find these arguments unpersuasive. It is said, for example, that the present cause of action is different from the prior criminal suit because it attacks the whole system of permit dispensing and seeks prospective relief against its enforcement. However, it is quite clear that the gist of the current suit is that the regulations are unconstitutional; it is also clear that this question was at issue and determined against the appellants in the state action. A perusal of the briefs submitted to the Appellate Term cannot fail to convince that the whole regulatory system was assailed, on its face and as applied to appellants. Memorandum of Appellants in Support of Certification to the Court of Appeals at 3; Brief for Appellants in the Appel*342late Term, First Department at 9-10. We are thus convinced that the assault was broadly based and broadly considered. Nor does the prospective nature of the relief sought necessarily preclude estoppel. In appellants’ view there has been merely a determination of law based on “expired” facts and the prior decision should be considered here solely on the basis of stare decisis — persuasive perhaps but certainly not conclusive. However, it was in fact determined by a court of competent jurisdiction that it was proper for the Parks Administration to require distributors of political literature who wish to distribute their pamphlets in a park to obtain a permit. If this determination, applying the regulation in question to facts identical to those presently alleged, is seen to bind appellants, they certainly cannot succeed on the present course of litigation.

Having argued that a strict application of the rules of collateral estoppel will not bar this action, appellants in the alternative contend that the policy underlying the Civil Rights Act would best be served by denying the effects of collateral estoppel under these circumstances. As appellants argue:

Therefore to apply these doctrines [res judicata and collateral estoppel] mechanically to all § 1983 actions would be to thwart a Congressional determination that the policies and rights embodied in § 1983 are often of a higher priority than the competing policies of judicial economy and comity.

Appellants’ Br. at 18.

While we recognize the particular nature of the Civil Rights Act and the intent of Congress embodied therein, we are not of the opinion that the trial judge applied the doctrines of res judicata “mechanically” to the facts of this case; further we do not read in the act any intent to foster career litigants. Lackawanna Police Benevolent Association v. Balen, 446 F.2d 52 (2d Cir. 1971); see also Rosenberg v. Martin, 478 F.2d 520, 525 (2d Cir. 1973); Friendly, Federal Jurisdiction: A General View 101 n. 113. Thus, we do not see reason to overturn the judgment of the court below.

Finally, it is argued that there was in fact no election of the state forum. It is contended that a criminal defendant is given no choice as to the time and the place of his prosecution. The picture is presented to us of a prisoner in the dock standing mute for fear of losing his right to a federal adjudication of his constitutional claims. We are not convinced that an election of the state tribunal is required to hold the present action barred by collateral estoppel. In fact we are unclear how a determination of the constitutionality of the Regulation could be avoided at the state level. Since the appellants were unaware of the Regulation, it cannot be said that they chose to bring on their prosecution by deliberately violating it; nor do we see how the trial court or any appellate court could avoid scrutinizing the Regulation for possible constitutional defects even at appellants’ request. However, in connection with this argument there are two matters that should be raised in passing. First, although, as was stated above, the usual criminal case provides little suggestions of election, the present case provides a good deal more. To quote Mr. Lockshon:

All I know is before trial started there was somebody from some agency, and he said, “Let’s drop the whole matter,” and since I had begun it I said, “No, this I think is a Constitutional thing. I have a right to give out leaflets. I want to go through with this thing.”

62a.

Although it is correct, as appellants contend, that Mr. Lockshon cannot “elect” for Mr. Thistlethwaite, it is apparent that they had the same attorney and were pursuing their remedies in conjunction. Thus, it might be argued, that Mr. Lockshon, in declining the offer, acted as spokesman. At the very least, it seems clear that both of them *343had determined to pursue the New York action to a conclusion on constitutional grounds. Second, it should be noted that habeas corpus is generally available in situations similar to the one at hand. Should the appellants show “possible' adverse collateral effects” of their conviction, they can gain a federal hearing by that route. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1968); see also Sibron v. New York 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); and Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968).

For the above reasons, the judgment of the court below is affirmed.

. Section 13 provides ;

No person shall hold any meeting, perform any ceremony, make an address, exhibit or distribute any sign, placard, declaration or appeal of any description in any park or park-street, except by permit by Parks, Recreation and Cultural Affairs Administration. Upon application, the Administrator shall issue such permit unless: (1) the use for which the permit is sought would substantially interfere with park use and enjoyment by the public; (2) the location selected is not suitable because of special landscaping and planning; (3) the location is not suitable because it is a specialized area including, but not limited to, a zoo, swimming pool, or skating rink; (4) the date and time requested have pre*341viously been allotted by permit. Whenever a permit is denied, alternative suitable locations and dates shall be offered to the applicant.

. The rule in question, Section 11(a), provides :

A permit may be granted upon such terms and conditions as the Administrator shall reasonably impose. Every permit shall be of a duration reasonably deemed appropriate by the Administrator for the use of the park and its facilities by the public. The Administrator shall prescribe and make readily available forms of application for permits and copies of the Rules and Regulations in force. In granting a permit, the Administrator shall have the power to require a deposit or collateral or surety as a protection to the City.