Kearney had her property taken. The school district doing the taking said it wanted to put a septic system on the property, and so commissioned a percolation study. But then it decided that instead, it would connect to a sewer system. The state court jury believed neither side’s appraiser completely, rejecting both Kearney’s appraisal ($1.4 million), and the district’s ($850k), and instead settled on $953,000. 

After trial, Kearny learned about the percolation study. For whatever reason, the district hadn’t disclosed the results, something that Kearney apparently believes was critical to value. On that basis, she sought a new trial, and when the Superior Court denied it, sought and was denied relief in the Court of Appeal (that court essentially put the blame on her, noting “that Kearney should have more timely and thoroughly pursued discovering the test results before trial”).

Finding no relief in state court, she went across the street to federal court, and filed a § 1983 claim there, alleging a taking without just compensation, RICO violations, etc. etc. Want to guess the outcome?

If you guessed that in Kearney v. Foley & Lardner, LLP, No. 16-56593 (Aug. 24, 2018), the Ninth Circuit affirmed the district court’s summary judgment in favor of the district (and its law firm, hence the caption of the case), you’d be right.

This one wasn’t too hard to predict. Federal courts, as we know, are loathe to take a second look at final state court judgments, even if those judgments were procured by fraud. We’re not saying that the district’s withholding of the percolation report was fraud — it might have been merely an oversight, or a case of the property owner not asking for it in discovery — but even if it was fraud, that wouldn’t have been enough:

Moreover, even if Kearney had diligently pursued discovery and Defendants had willfully suppressed such evidence, California law is firm that such intrinsic fraud does not upset the finality of an earlier judgment. The state court trial and post-trial motions were Kearney’s “opportunity for making the truth appear.” Pico v. Cohn, 91 Cal. 129, 134 (1981). If a litigant is “overborne by perjured testimony” or, as alleged in this case, by suppressed evidence “and if he likewise fails to show the injustice that has been done him[,] on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy.” Id. Because Kearney does not challenge the state court procedures that were available to her and because there is no indication in the record that the state proceeding was constitutionally deficient, Kearney was afforded a full and fair opportunity to litigate the value of the Property. Thus, the earlier judgment regarding value must be given preclusive effect.

Slip op. at 5. 

Yes, “full and fair” opportunity to litigate even can mean full and “unfair.” 

Because, as we know, finality is one of the overarching principles of the law. Even more than getting it right, getting it settled is critical. 

Kearney v. Foley & Lardner, LLP, No. 16-56593 (9th Cir. Aug. 24, 2018) (memorandum)