Duffy, Senior Circuit Judge, and Kiley and Pell, Circuit Judges. Kiley, Circuit Judge (dissenting).
DUFFY, Senior Circuit Judge.
This suit was commenced in 1966. All of the plaintiffs are Negroes and are either tenants or applicants for public housing. They challenged upon behalf of themselves and the members of their class, the constitutional validity of the site selection policy of the Chicago Housing Authority (CHA).
Plaintiffs' complaint contained four counts. Count I alleged that defendants intentionally chose sites for family public housing and adopted tenant assignment procedures in violation of Title 42, §§ 1983 and 1985 for the purpose of maintaining existing patterns of residential separation of races in the City of Chicago. Count III alleged that regardless of their intent, defendants violated Title 42 U.S.C. §§ 1983 and 1985 by failing to select sites for public housing in a manner which would alleviate existing patterns of racial separation. Counts II and IV repeated the allegations of Counts I and III respectively, but demanded relief under Title 42 U.S.C. § 2000d (Section 601 of Title VI of the Civil Rights Act of 1964).
On March 2, 1967, defendants' motion to dismiss Counts III and IV of the complaint was granted, but a similar motion to dismiss Counts I and II was denied. Gautreaux v. Chicago Housing Authority, D.C., 265 F. Supp. 582. No appeal was taken from that decision.
Between March 2, 1967 and February 10, 1969, both parties submitted much evidence in the form of depositions, affidavits and exhibits to support their respective positions on the merits of the Constitutional issues. On February 10, 1969, both sides moved for summary judgment.
On February 20, 1969, the District Court granted defendants' motion for summary judgment as to Count II, dismissing that Count of plaintiffs' complaint. At the same time, in a memorandum opinion, the Court granted plaintiffs' motion for summary judgment on Count I of the complaint. Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907.
In its opinion, the Court found that while defendant CHA did not necessarily harbor a subjectively racist attitude, it had intentionally maintained a system of public housing which discriminated on racial grounds with respect to the selection of sites for public housing in the City of Chicago, and with respect to tenant assignments within the public housing system. Among the practices specifically cited by the Court as pointing to discrimination on the basis of race was a "pre-clearance" procedure whereby any proposed site for public housing was informally submitted to the alderman of the ward in which the housing project was to be located before the formal procedure of submitting the site to the Chicago Plan Commission and the Chicago City Council was initiated.
It was not disputed that the aldermen to whom proposed sites were submitted for "pre-clearance" vetoed these sites because the 90% Negro waiting list and occupancy rate would create a concentrated Negro population in the White area. The Court further pointed out that the few sites which escaped the aldermen's informal veto were rejected by the City Council on racial grounds. It seems to be conceded that most of the aldermen who vetoed proposed White sites did so because of the unfavorable reaction thereto by residents of their ward.
On July 1, 1969, in accordance with the February 20th opinion and after conferences with both parties at which time comprehensive plans were submitted, the District Judge entered a Judgment Order granting equitable relief to plaintiffs. Gautreaux v. Chicago Housing Authority, D.C., 304 F. Supp. 736. Defendants were ordered to build a certain percentage of all public housing thereafter erected in Chicago, in the "General Housing" areas of that city. The "General Housing" area was synonymous roughly with the predominantly White areas. Defendants were ordered further to submit certain reports to the United States Department of Justice and to the District Court. Paragraph VIII, the modification of which is the subject of this appeal, provided, in relevant part:
"CHA shall affirmatively administer its public housing system in every respect (whether or not covered by specific provision of this order) to the end of disestablishing the segregated public housing system which has resulted from CHA's unconstitutional site selection and tenant assignment procedures. Without limiting the foregoing,
A. CHA shall use its best efforts to increase the supply of Dwelling Units as rapidly as possible in conformity with the provisions of this judgment order and shall take all steps necessary to that end, including making applications for allocations of federal funds and carrying out all necessary planning and development. * * *"
Subsection B of Paragraph VIII permanently enjoined CHA from using the "pre-clearance" procedure, previously discussed.
The District Court retained jurisdiction of the matter "for all purposes, including enforcement and issuance, upon proper notice and motion, of orders modifying or supplementing the terms of this order." The order has been supplemented by five subsequent orders entered on September 12, 1969; September 15, 1969; October 20, 1969; October 23, 1969 and November 24, 1969, respectively.
Up to this point in the litigation, no appeal was ever taken by either party. The validity of the February 20, 1969 opinion finding of racial discrimination on the part of CHA and of the July 1, 1969 judgment order granting equitable relief in favor of plaintiffs, remain unchallenged and are not the subject of this appeal.
Illinois law requires defendant to submit all sites for public housing to the Chicago Plan Commission and then to the Chicago City Council for approval. (Ill.Rev.Stat. Chap. 24, Sec. 11-12-4.1, and Chap. 67 1/2 Sec. 9). As of May 1970 and continuing to this date, no sites for family dwelling units have been submitted by defendant (CHA) since the entry of the July 1, 1969 order.
Beginning in May 1970, plaintiff's counsel began to make inquiries of defendant as to why new sites had not been submitted so as to determine whether defendants were using their "best efforts" in accordance with the provisions of the July 1, 1969 order. Plaintiffs were informed that defendants wished to delay submission of sites and that allegedly, defendants "did not intend to advise the City Council of sites appropriate for dwelling units * * * prior to the Chicago Mayoralty election scheduled to be held in April, 1971."
As a result of the inquiries by plaintiffs' counsel, a series of conferences with the District Judge leading up to the entry of the order now appealed from were arranged. Five such conferences actually took place. The first was scheduled for June 2, 1970. It was agreed between the parties that they would confer in Judge's Chambers "rather than appear before him in open court on his motion call." The parties further agreed that such conferences would take place without a Court Reporter present. Defendants made no objection to the procedure for these appearances before the District Judge.
In a May 25, 1970 letter written to plaintiffs' counsel, confirming the arrangements for the June 2 conference, CHA's counsel also stated that CHA would be prepared "to respond fully on June 2 to plaintiffs' request for information" and that CHA was "eager to discuss the broader issues you allude to in your letter of May 20th." It does not seem to be disputed that the "broader issues" referred to were CHA's various proposals for timing of ...