The opinion of the court was delivered by: McMILLEN, District Judge.
This cause came on to be partially retried pursuant to a
decision of the Court of Appeals entered May 25, 1972.
466 F.2d 830 (7th Circuit). The controversy involves the allegedly
discriminatory nature of the defendant's 1970 Ward map which
was adopted by the City Council on November 6, 1970, pursuant
to the Court of Appeals order in Skolnick v. Mayor and City
Council of Chicago et al., 415 F.2d 1291 (7th Cir. 1969),
cert. den., 397 U.S. 954, 90 S.Ct. 984, 25 L.Ed.2d 138 (1970).
Plaintiffs attacked that map on several grounds, but it was
upheld by the trial court and an election was held in which
all of the plaintiff aldermen who ran for re-election were
successful. The Court of Appeals, however, sent the case back
for the re-examination of the discrimination issue by means of
Evidence was received in the form of a pre-trial
stipulation, testimony in open court, certain portions of
testimony given at the original trial, depositions and
numerous exhibits. Very little new evidence was produced but
much of the earlier evidence was shortened. We thus find
ourselves in the rather unusual position of deciding
substantially the same issues as have already been decided by
the trial court, on substantially the same evidence.
Both parties have submitted post-trial arguments in written
form, and the court considers itself fully advised in the
premises. We find and conclude that the plaintiffs are
entitled to but a portion of the relief prayed for in their
Complaint, specifically a revision of the Seventh and perhaps
the Eighth Wards as constituted in the 1970 map.
The first dispute between the parties is exactly what the
re-trial was intended to consist of. The Court of Appeals
defined this at 466 F.2d 838 and 843 as follows:
. . Although we are not prepared to measure, on
this record, any discriminatory effect which may
have resulted, we think that the findings must be
set aside until the question has been more fully
explored in the district court (p. 838).
. . . we are unable to say that plaintiffs'
evidence so clearly established that the ward
boundaries were the product of purposeful
discrimination as to permit this court so to
find. If the litigation concerned ordinary
interests of the plaintiffs alone, we might well
conclude that they must bear the burden of
failure to establish more clearly all elements of
their case. We are of the opinion, however, that
the type of rights involved here requires special
care that claims of impairment be thoroughly
inquired into. (p. 843).
The test of discrimination which the Court of Appeals
intended us to apply is stated at 466 F.2d at 843 as follows:
. . There is no principle which requires a
minority racial or ethnic group to have any
particular voting strength reflected in the
council. The principle is that such strength must
not be purposefully minimized on account of their
race or ethnic origin.
The next question is the standard of proof which must be met
by the plaintiffs to entitle them to relief. As indicated in
the first passage quoted above from 466 F.2d at 843, the Court
of Appeals was searching for evidence which "clearly"
established purposeful discrimination. Although this standard
was merely stated for review purposes, there is no indication
by the Court of Appeals that plaintiffs' burden on re-trial is
any less, nor that they must prove invalidity beyond a
reasonable doubt, as was required in Vale v. Gary National
Bank, 406 F.2d 39 (7th Cir. 1969).
Since the plaintiffs seek to set aside a City ordinance on
constitutional grounds, we believe that the usual requirement
of clear and convincing proof applies in this case. See e.g.,
Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25
L.Ed.2d 174 (1970); Bibb v. Navajo Freight Lines,
359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959). The Court of Appeals
seems to have adopted this standard, because at p. 843 it
found that plaintiffs had "clearly established" that the
location of predominantly black and Puerto Rican areas was
considered in the preparation of the new ward boundaries. At
another point the Court of Appeals found it "clear" that the
Bell-student map had a serious and substantial purpose for the
benefit of the City (466 F.2d at 837).
Finally, these and other findings made by the Court of
Appeals are the law of this case and are binding, particularly
since the evidence on re-trial is substantially the same as on
the first trial. Plaintiffs have argued that the wards drawn
by the City Council lack "compactness" and should be set aside
for this reason alone. We believe this was in effect concluded
as a separate issue when the Court of Appeals said, with
respect to the 1970 map:
Nonetheless, it is our view that when other
facts point to a probability that there has been
invidious discrimination in drawing ward lines,
deviations from maximum compactness may be
considered along with these other facts in
determining whether such discrimination
(violating federal rights) has occurred. (466
F.2d at 833-834).
Turning to the facts, the Bell-student map has been found by
the Court of Appeals to be a "trial run" for the task later
performed at the public hearings. The question thus arises
whether this trial run was itself discriminatory. The three
students testified that Bell engineered the details of that
project and that Alderman Keane and others participated
indirectly by commenting from time to time on the composition
of certain wards. The question of "race" was discussed many
times, but the plaintiffs offered no evidence of the contents
of these particular discussions. No student testified that any
statement was made during this "trial run" tending to induce
discrimination or gerrymandering against any particular group
and Bell did not testify.
Hence the validity of the "student map" must be determined
from circumstantial evidence. This appears in two forms (a)
statements of those who made suggestions or requests about
specific wards during the student project, and (b) the end