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July 11, 1973


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 a re-trial.

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:

    In considering the plaintiffs' claim, founded
  on state law, that the wards are not compact, we
  look for guidance to the Supreme Court of
  Illinois. In dealing with a requirement that
  senatorial districts be formed of compact
  territory, it has said: "There is a vast
  difference between determining whether the
  principle of compactness

  of territory has been applied at all or not, and
  whether or not the nearest practical
  approximation to perfect compactness has been
  attained. The first is a question which the
  courts may finally determine; the latter is for
  the legislature." Notwithstanding the
  irregularities in outline of wards, we could not
  determine from the present record, if it were our
  place to do so, that the principle of compactness
  was not applied at all.
    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 product, ...

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