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ROBINSON v. CONLISK

United States District Court, Northern District of Illinois, E. D


April 24, 1974

RENAULT ROBINSON AND AFRO-AMERICAN PATROLMEN'S LEAGUE, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFFS,
v.
JAMES B. CONLISK, JR.,[FN*] ET AL., DEFENDANTS.

The opinion of the court was delivered by: Marshall, District Judge.

MEMORANDUM OPINION

Before me is defendants'*fn1 motion to reconsider their motions to strike and dismiss and for summary judgment.

Plaintiffs Renault Robinson [hereafter "Robinson"], a Black policeman employed by the Chicago Police Department [hereafter "the Department"] and the Afro-American Patrolmen's League [hereafter "the League"], a not-for-profit corporation organized by Black Department members, challenge the Department's practices in the areas of promotion, assignments and discipline as violations of the First, Fifth, Thirteenth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1981 and 1983.

This case presents sensitive issues for determination. Plaintiffs, on one hand, properly seek vindication of their federally guaranteed civil rights. Assuredly, there is great value in securing an end to any unlawful practices in the areas of promotion, hiring, and assignments of police officers. Defendants, on the other hand, contest the posture of the case for the court to intervene into the affairs of the Department and insist that the case be presented, if at all, by and against the proper parties.

The defendants set forth five grounds in support of their motion: (1) the City and the Board move to dismiss the Second Amended Complaint on the grounds that the court lacks jurisdiction under 28 U.S.C. § 1343(3) since the City and the Board are not subject to suit under §§ 1981 and 1983 of the Civil Rights Act, 42 U.S.C. § 1981 and 1983; (2) the City and the Board move to dismiss the Second Amended Complaint on the grounds that the court lacks jurisdiction under 28 U.S.C. § 1331, since Robinson and the League do not meet the requisite jurisdictional amount thereunder; (3) all defendants move to dismiss Count 2 of the Second Amended Complaint on the grounds that Robinson and the League lack standing to sue; (4) all defendants move to dismiss the allegations of Count 2 regarding the discriminatory nature of the Department's promotion examinations; and (5) all defendants move to dismiss the Second Amended Complaint on the grounds that plaintiffs do not state a justiciable controversy.

THE SECOND AMENDED COMPLAINT

Count 1 of the complaint alleges that Robinson and the League have been subjected to unequal standards, punishment and treatment for the purposes of harassment in violation of the 1st, 5th and 14th Amendments to the Constitution of the United States and 42 U.S.C. § 1983. Count 2 alleges that League members, including Robinson, have been discriminated against on racial grounds by defendants' practices regarding the hiring, assignment and promotion of police officers in violation of the 5th, 13th and 14th Amendments and 42 U.S.C. § 1981 and 1983.

     JURISDICTION OF THE CITY AND THE BOARD UNDER 28 U.S.C.
                         § 1343(3)*fn2

The City and the Board argue that the plaintiffs are precluded from prosecuting their claims under §§ 1981 and 1983 of the Civil Rights Act, 42 U.S.C. § 1981 and 1983, on the grounds that neither the City nor the Board is a "person" within the meaning of the Civil Rights Act.

Section 1983 of the Civil Rights Act provides:

  Every person who, under color of any statute,
  ordinance, regulations, custom, or usage, of any
  State or Territory, subjects, or causes to be
  subjected, any citizen of the United States or
  other person within the jurisdiction thereof to
  the deprivation of any rights, privileges, or
  immunities secured by the Constitution and laws,
  shall be liable to the party injured in an action
  at law, suit in equity, or other proper
  proceeding for redress.

The Supreme Court held in Monroe v. Pape,
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that § 1983 was intended to provide private parties a cause of action for abuses of official authority which resulted in the deprivation of constitutional rights, privileges and immunities. The Court found, however, that a municipality was not a "person" under § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), extended the Monroe holding that municipal corporations are not "persons" for the purposes of a damage action under § 1983 to an action for equitable relief under § 1983. Thus, to the extent that violations of § 1983 are alleged in Counts 1 and 2 of the Second Amended Complaint, the City and the Board are not subject to suit for such violations. This fact, however, does not deprive the court of jurisdiction over the alleged violations of plaintiffs' constitutional rights in Count 1 since jurisdiction is also founded on 28 U.S.C. § 1331. Infra, p. 536.

The City and the Board argue that Monroe and Bruno preclude suits against them under all sections of the Civil Rights Acts, including § 1981.

Section 1983 was derived from § 1 of the Ku Klux Klan Act of April 20, 1871. When the 1871 Act was debated in the Senate, Senator Sherman of Ohio proposed an amendment which provided in material part:

    That if any home, tenement, cabin, shop,
  building, barn, or granary shall be unlawfully or
  feloniously demolished, pulled down, burned, or
  destroyed, wholly or in part, by any persons
  riotously and tumultuously assembled together; or
  if any person shall unlawfully and with force and
  violence be whipped, scourged, wounded, or killed
  by any persons riotously and tumultuously
  assembled together; and if such offense was
  committed to deprive any person of any right
  conferred upon him by the Constitution and law of
  the United States, or to deter him or punish him
  for exercising such right, or by reason of his
  race, color, or previous condition of servitude,
  in every such case the inhabitants of the county,
  city or parish in which any of the said offenses
  shall be committed shall be liable to pay full
  compensation to the person or persons damnified
  by such offense if living, or to his widow or
  legal representative if dead; and such
  compensation may be recovered by such person or
  his representative by a suit in any court of the
  United States of competent jurisdiction in the
  district in which the offense was committed, to
  be in the name of the person injured, or his
  legal representative, and against said county,
  city or parish. . . . Cong.Globe, 42d Cong. 1st
  Sess. 704.

After having been adopted by the Senate, the House rejected it.

The Conference Committee reported another version of the amendment which provided in material part:

    That if any house, tenement, cabin, shop,
  building, barn, or granary shall be unlawfully or
  feloniously demolished, pulled down, burned or
  destroyed, wholly or in part, by any persons
  riotously and tumultuously assembled together; or
  if any person shall unlawfully and with force and
  violence

  be whipped, scourged, wounded, or killed by any
  persons riotously and tumultuously assembled
  together, with intent to deprive any person of
  any right conferred upon him by the Constitution
  and law of the United States, or to deter him or
  punish him for exercising such right, or by
  reason of his race, color, or previous condition
  of servitude, in every such case the county, city
  or parish in which any of the said offenses shall
  be committed shall be liable to pay full
  compensation to the person or persons damnified
  by such offense, if living, or to his widow or
  legal representative if dead; and such
  compensation may be recovered in any action on
  the case by such person or his representative in
  any court of the United States of competent
  jurisdiction in the district in which the offense
  was committed, such action to be in the name of
  the person injured, or his legal representative,
  and against said county, city, or parish and in
  which action any of the parties committing such
  acts may be joined as defendants. . . . Cong.
  Globe, 42d Cong. 1st. Sess. 755.

After extended debate the House rejected the second amendment adopting in its stead a provision which dropped municipal liability and made liable "any person or persons, having knowledge that any" wrongs prohibited by the Act were being committed. 42 U.S.C. § 1986.

The purpose of the 1871 Act was to counteract the rising tide of terrorism in the southern states, led by the Ku Klux Klan. The extent of such terrorism was fully documented in extensive Senate hearings. The type of testimony given in such hearings is set forth in the remarks of Representative William Stoughton, who stated in part:

  The evidence taken before the Senate Committee in
  relation to the outrages, lawlessness and
  violence in North Carolina establishes the
  following propositions:

  (1) That the Ku Klux organization exists
  throughout the State, has a political purpose,
  and is composed of the members of the Democratic
  or Conservative party.

  (2) That this organization has sought to carry
  out its purposes by murders, whippings,
  intimidation, and violence against its opponents.

  (3) That it not only bends its members to execute
  decrees of crime, but protects them against
  conviction and punishment, first by disguises and
  secrecy, and second, by perjury, if necessary,
  upon the witness-stand and in the jury box.

  (4) That of all the offenders in this order,
  which has established a reign of terrorism and
  bloodshed throughout the State not one yet has
  been convicted. . . . Cong.Globe, 42d Cong. 1st
  Sess. 320. See also, Representative Stevenson's
  remarks at Cong. Globe 42d Cong., 1st Sess.
  283-300.

The legislative history of the 1871 Act, upon which the Monroe decision was based, establishes that the objection to the Sherman amendment was a concern over the constitutional power of Congress to impose civil liability on municipalities based on the violent acts of third persons. Illustrative of the objection to the Sherman amendment were the remarks of Representative Farnsworth:

  We have a section which authorizes suits to be
  brought against counties and cities in every case
  of destruction of property or injury of the
  person by two or more persons in a riotous or
  tumultuous manner, when it is done in derogation
  of the exercise of some constitutional right of
  the person, or done on account of color, or race,
  or previous condition of servitude; such, for
  instance . . . as this: if a Chinaman should be
  mobbed by three or four miners in California or
  Nevada on account of being a Chinaman, he may sue
  the county in the United States courts and
  recover damages. Or, to take another case of a
  man mobbed in Illinois on account of race or
  color, suppose a colored and a white

  person get married, and some of the young men of
  the village get up a charivari not for the purpose
  of preventing any right to vote, but because of
  color, then the person claiming that he is injured
  may sue the county and recover damages.

  . . . So this section provides, and that too in
  an action of tort, in an action ex delicto, where
  the county has never entered into any contract,
  where the State has never authorized the county to
  assume any liability of the sort or imposed any
  liability upon it. It is in my opinion simply
  absurd. . . . Cong.Globe, 42d Cong. 1st Sess.
  798-799.

The overriding unfairness to local governments in imposing liability upon them for the actions of third parties over whom they had no control also underlay the objections to the Sherman amendment. Representative Kerr of Indiana stated:

  There is, therefore, a total and absolute absence
  of notice, constructive or implied, within any
  decent limits of law or reason. And the bill
  itself is significantly silent on the subject of
  notice to these counties and parishes or cities.
  Under this section it is not required, before
  liability shall attach, that it shall be known
  that there was any intention to commit these
  crimes, so as to fasten liability justly upon the
  municipality. . . . It takes the property of one
  and gives it to another, without right, in the
  absence of guilt or knowledge. . . . Cong. Globe,
  42nd Cong., 1st Cong., 1st Sess. 788.

Section 1981 of the Civil Rights Act, 42 U.S.C. § 1981 provides:

  All persons within the jurisdiction of the United
  States shall have the same right in every State
  and Territory to make and enforce contracts, to
  sue, be parties, give evidence, and to the full
  and equal benefit of all laws and proceedings for
  the security of persons and property as is
  enjoyed by white citizens, and shall be subject
  to like punishment, pains, penalties, taxes,
  licenses, and exactions of every kind, and to no
  other.

In its original form § 1981 was part of § 1 of the Civil Rights Act of 1866.*fn3 That section was cast in sweeping terms:

  Be it enacted by the Senate and the House of
  Representatives of the United States of America in
  Congress assembled, That all persons born in the
  United States and not subject to any foreign power,
  excluding Indians not taxed, are hereby declared to
  be citizens of the United States; and such
  citizens, of every race and color, without regard
  to any previous condition of slavery or involuntary
  servitude, except as a punishment for crime whereof
  the party shall have been duly convicted, shall
  have the same right, in every State and Territory
  in the United States, to make and enforce
  contracts, to sue, be parties, and give evidence,
  to inherit, purchase, lease, sell, hold, and convey
  real and personal property, as is enjoyed by white
  citizens, and shall be subject to like punishment,
  pains, and penalties, and to none other, any law,
  statute, ordinance, regulations, or custom, to the
  contrary notwithstanding.

For our purposes, the language that all citizens are guaranteed "the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens . . ." is the key. To the Congress that passed the Civil Rights Act of 1866, it was clear that the right to do these things might be infringed by "custom or prejudice" and by "State or local law." Jones v. Mayer Co., 392 U.S. 409, 423, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). Thus, in providing that the right to make and enforce contracts was to be enjoyed equally by all, Congress intended to secure that right against interference from any source.

The objections made to the 1866 Civil Rights Act were based on the broad coverage of the Act. The remarks of Representative Kerr, speaking against the 1866 Act, exemplify the objections:

  This bill forbids any discrimination in civil
  rights and immunities on account of race or
  color. Under the laws of Indiana no person except
  male inhabitants can be allowed to engage in the
  business of retailing spirituous liquors. But a
  negro procures the requisite petition and applies
  to a county board for a license to retail
  liquors. It is refused. Now, this discrimination
  is based both upon color and race. And the county
  board, by refusing the license, violates the
  second section of this act*fn4. . . . Or, the
  city of New Albany, in which I live, whose
  ordinances follow the State law, might refuse a
  license to a negro under the same circumstances,
  and the common council would thus become
  wrongdoers. . . . Cong.Globe, 39th Cong., 1st
  Sess. 1270-1271.

In plain and unambiguous terms, § 1981 grants to all persons the same right to make and enforce contracts and to the full and equal benefit of all law. Section 1981 prohibits all discrimination, whether it be by individuals, municipalities or police review boards. I cannot ignore the legislative history and the broad language of § 1981. Section 1981 means what it says: all discrimination is prohibited, regardless of whether the source of the discrimination is a municipal corporation.

The City and the Police Review Board, protected from suit under § 1983, are subject to suit under § 1981.*fn5 Count 2 of the complaint alleges discriminatory and arbitrary practices by the City and the Police Review Board in the management and operation of the Chicago Police Department. The unfairness of holding a municipality liable under § 1983 for the acts of a third person, over whom the municipality has no direct control, is not present when the type of conduct alleged is that which is engaged in by the municipality itself and is covered by § 1981. Consequently, I find jurisdiction over the City and the Board in Count 2 under 28 U.S.C. § 1343.

The City and the Board argue that Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), applies the Monroe and Bruno limitations of § 1983 to all other sections of the Civil Rights Acts.

Moor was a suit against certain police officers and the County of Alameda for damages arising from injuries allegedly suffered by the plaintiffs as a result of the wrongful discharge of a shot gun by a County deputy sheriff. Against the County, the plaintiffs alleged federal causes of action under §§ 1983 and 1988*fn6 as well as pendent state claims. As to the Civil Rights Act claims, the County moved to dismiss, contending that it was not a "person" under § 1983. The plaintiffs argued that § 1988 incorporated into federal law California's law of vicarious liability which exposed the County to liability.

The Court held for the County, finding that § 1988 was only intended to instruct federal courts as to what law to apply in causes of action under the federal civil rights acts. Since Monroe and Bruno, supra, held that there could be no cause of action against a municipality under § 1983, § 1988 was not applicable. Concisely stated, the Court held that § 1988 could not be used to create a federal cause of action by importing a state cause of action against a municipality into federal court. Thus, Moor does not face the issue of whether the other sections of the Civil Rights Act are subject to the Monroe and Bruno limitation of § 1983.

Accordingly, the motion of the City and the Board to dismiss Count 2 of the complaint on the grounds that they are not subject to suit under § 1981 of the Civil Rights Act [and consequently for lack of jurisdiction under 28 U.S.C. § 1343(3)] is Denied.

     JURISDICTION OF THE CITY AND THE BOARD UNDER 28 U.S.C.
                           § 1331*fn7

Robinson and the League allege in Counts 1 and 2 of the Second Amended Complaint inter alia that League members, including Robinson, have been denied promotions and increases in pay; that League members, including Robinson, have been subjected to suspensions from the Department with loss of pay and vacation days with pay; that Robinson has lost $30,000 as a result of suspensions and pay forfeitures; and that the League has been handicapped in retaining members, recruiting new members and obtaining community and financial support, the direct result of which has been a loss of financial support to the League in the amount of $100,000.*fn8

From the good faith allegations of the complaint, supported by affidavits, it appears that the claim of each plaintiff exceeds $10,000, exclusive of interest and costs. Consequently, jurisdiction of this action also lies under 28 U.S.C. § 1331.

Accordingly, the motion of the City and the Board to dismiss the complaint on the grounds that the court lacks jurisdiction under 28 U.S.C. § 1331(a) is Denied.

STANDING

Defendants argue that Robinson and the League do not have standing to prosecute the claims of Count 2 of the Second Amended Complaint.*fn9 Count 2 alleges the existence of Department-wide patterns and practices in the areas of promotion, discipline and assignments, the consequence of which has been to affect adversely all Black policemen [including members of the League] in contravention of the Fifth, Thirteenth and Fourteenth Amendments.

Defendants contend that Robinson has failed to allege any injury from the action that he is assailing, and thus, lacks standing to litigate his claims under Count 2.*fn10 The League, defendants argue, cannot sue on behalf of its members until it shows an injury to the organization distinct from that to its membership.*fn11 The defendants contend that the League, having failed to establish such an injury, lacks standing to prosecute the claims of Count 2.

Exhibit "I" to plaintiffs' memorandum in opposition to defendant's motion for reconsideration is an affidavit submitted by Robinson, in which he states that he is a member of the League and that he has been subjected to the discriminatory acts alleged in paragraph 22 of Count 2. Robinson has established sufficient personal interest in obtaining the relief sought so as to have standing to prosecute Count 2. Accordingly, defendants' motion to dismiss Robinson from Count 2 of the Second Amended Complaint is Denied.

The remaining standing issue before me is whether the League has standing to assert the constitutional rights of its members. The League urges that it may assert, on behalf of League members, a right personal to them to be protected from discriminatory employment practices in promotion, discipline and assignments.*fn12

In NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), Alabama sought to compel the NAACP, a foreign corporation, to produce the internal documents of the organization, including the names and addresses of its members. The NAACP refused to disclose the membership lists and was, thereafter, held in contempt. The Supreme Court, in holding that the disclosure of the NAACP's membership lists would violate the members' right of association and assembly under the due process clause of the Fourteenth Amendment, held that the NAACP had standing to assert the rights of its members.

The Court found inter alia that the NAACP was likely to suffer diminished membership if the production were compelled,*fn13 that the nature of the right [freedom of assembly and association] ranked high on the hierarchy of constitutional values,*fn14 that the relationship between the NAACP and its members was more than formal membership, since the purpose of the organization was to protect the rights of Blacks and others who were interested in the welfare of the Negro race;*fn15 that it was impracticable to require the individual members to prosecute the suit for if individuals filed suit, their rights would be nullified by the very act of assertion.*fn16

In the present case, if the members of the League are required to sue individually, they might reasonably expose themselves to the imposition of extra-legal sanctions by the defendants. Such action by the defendants would result in diminished financial support and membership in the League. In view of this fact, the League might have standing to sue on its own behalf, if it sought an injunction against the defendants' alleged conduct.*fn17 Moreover, the purpose*fn18 for which its members join the League is to protect their rights and interests jointly.*fn19 Since the League is the collective embodiment of its members, the League has standing to protect its members' rights against encroachment by third parties.

The alleged practices of the defendants deal with the members of the League, not as individuals, but as members of a class*fn20 of which the League is a representative. McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914), involved a state statute permitting railroads to provide sleeping cars and other facilities for only whites. While the Court declared that the statute violated the equal protection clause of the Fourteenth Amendment, the Court held that the plaintiffs, a group of Blacks, had no standing to secure injunctive relief against such discrimination because they had not been harmed by the action of the railroad. The effect of McCabe was to preclude plaintiffs from vindicating their rights until after they had been violated. In view of the fact that it may be difficult for an individual class member of the League to have standing to sue to protect his civil rights until they are violated, the League should be able to challenge the alleged conduct against the class members whose interests the League exists to protect.

Freedom from racial discrimination is the constitutional right sought to be protected. While the nature of the right asserted does not per se compel a finding that the League has standing,*fn21 it is a factor which, when coupled with other circumstances, inspires a greater sensitivity to the League's ability to sue on behalf of its members. Certainly, freedom from discrimination ranks high on the constitutional hierarchy and deserves close protection by the courts.*fn22

To the extent that a significant rather than a fortuitous relationship can be shown, the nature of the relationship is important as to whether there is standing.*fn23 In the present case, the relationship involved was that between the League and its members. The alleged constitutional violations relate to the purpose of such membership, viz., freedom from racial discrimination.*fn24 Certainly, the League is the "medium through which its individual members seek to make more effective the expression of their views" and thus has a significant relationship with its members. 357 U.S. at 459, 78 S.Ct. at 1170.

Finally, in order to sue individually, the League members would expose themselves to extra-legal sanctions of the Department. Thus, for the individual members of the League to file suit is impracticable. Furthermore, standing may be permitted, even though the individual could effectively assert his own rights.*fn25

The criteria which the Court considered decisive in NAACP v. Alabama, supra, are satisfied in the present case. The League's nexus with its members is sufficient to permit it to act as their representative in contesting the alleged discriminatory practices of defendants as alleged in Count 2 of the Second Amended Complaint. Accordingly, defendants' argument that the Association lacks standing to assert the constitutional rights pertaining to its members, who are not parties to the litigation, is rejected.

The allegations of paragraph 22 of Count 2 adequately allege the League's standing to sue.*fn26 Accordingly, defendants' motion to dismiss the League from Count 2 is denied.

PROMOTION EXAMINATIONS AND QUALIFICATIONS

All defendants move to dismiss the allegations of Count 2 of the Second Amended Complaint regarding the Department's promotion examinations and qualifications on the grounds that they have no power or control over promotion of police officers. Defendants assert that the Civil Service Commission of the City is the proper party defendant as to these claims.

The Civil Service Commission provides for promotions in the Department on the basis of merit, seniority and examination. Ill.Rev.Stat. ch. 24, §§ 10-1-13, 10-1-14. The members of the Commission, however, are appointed by the Mayor of Chicago and are paid by the City of Chicago. Ill.Rev.Stat. ch. 24, § 10-1-1. Consequently, the City effectively controls the Civil Service Commission and thus the process of promotion in the Department.

The practices of the Department are directly in issue. Thus, Conlisk, Rochford, the Board and the members thereof of who are named as defendants are proper parties under Count 2.

Accordingly, defendants' motion to dismiss on the grounds that they have no control over promotion in the Department is denied.

JUSTICIABILITY

All defendants move to dismiss the Second Amended Complaint on the grounds that it fails to state a justiciable controversy. The apparent basis of defendants' motion is the alleged inability of the court to fashion a remedy that would not involve it with the daily administration of the Department. Defendants contend that such involvement is best left to the legislative and executive branches of government.

The legal issues involved in the present case regarding the alleged discriminatory nature of the hiring and promotion of City police officers have been considered by other courts. Bridgeport Guardians, Inc., et al. v. Members of the Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972). The types of equitable remedies which properly may be invoked once a finding of unlawful discrimination has been made are varied. See Arnold v. Ballard, 5 E.P.D. ¶ 8630 (N.D.Ohio May 14, 1973); Harper v. Mayor and City Council of Baltimore, 359 F. Supp. 1187 (D.Md. 1973).

Accordingly, defendants' motion to dismiss the Second Amended Complaint on this ground is denied.

Thereupon, it is ordered that defendants' motion to reconsider their motion to strike and dismiss and for summary judgment is denied.

Defendants Conlisk, City of Chicago, Goodrich, Hauser, Johnson, Daniel, Perch, the Police Review Board and Rochford are ordered to answer the Second Amended Complaint in 20 days.


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