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UNITED STATES v. CITY OF CHICAGO

April 21, 1975

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CITY OF CHICAGO ET AL., DEFENDANTS. RENAULT ROBINSON ET AL., PLAINTIFFS, V. JAMES B. CONLISK, JR., ET AL., DEFENDANTS. TADEO ROBERT CAMACHO ET AL., PLAINTIFFS, V. JAMES B. CONLISK, JR., ET AL., DEFENDANTS. RENAULT ROBINSON ET AL., PLAINTIFFS, V. WILLIAM E. SIMON ET AL., DEFENDANTS.



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

  MEMORANDUM DECISION

Two motions are ready for decision in these consolidated civil rights actions:

(1) in Robinson et al. v. Simon et al., 75 C 79, intervenor-defendant City of Chicago moves for modification of an order entered December 18, 1974, when the action was pending in the District Court for the District of Columbia, enjoining defendants Simon, et al. from making further so-called revenue sharing payments to the City;

(2) in all of the consolidated cases, Tadeo Camacho, et al., (who are the named plaintiffs in 73 C 1252) move for an order requiring defendant City of Chicago and its officials to comply with an interim hiring agreement and order entered by this court on December 16, 1974.

The background facts and contentions of the parties through November 7, 1974 have been reported in Robinson et al. v. Conlisk et al., (N.D.Ill.) 385 F. Supp. 529; United States v. City of Chicago et al., (N.D.Ill.) 385 F. Supp. 540; United States v. City of Chicago et al., (N.D.Ill.) 385 F. Supp. 543. Before turning to the pending motions, some additional facts and background should be recited.

I. FACTS AND BACKGROUND

On September 14, 1973, Renault Robinson, a black Chicago Police Officer, the Afro-American Patrolman's League, an incorporated organization of black Chicago Police Officers (AAPL), and the National Association for the Advancement of Colored People of Chicago (NAACP) (all of whom will from time to time be referred to as the "Robinson plaintiffs") filed with the Department of the Treasury and administrative complaint against the City of Chicago (the City) and various of its officials alleging that the City was using so-called revenue sharing funds received by it under the State and Local Assistance Act of 1972, 31 U.S.C. § 1221 et seq., in violation of Section 122(a) of the Act which provides:

  No person . . . shall on the ground of race, color,
  national origin, or sex be excluded from
  participating in, be denied the benefits of, or be
  subjected to discrimination under any program or
  activity funded in whole or in part with funds made
  available under [the Act]. 31 U.S.C. § 1242 (a).

While the administrative complaint was not ignored by the Department's Office of Revenue Sharing, none of the action requested of the Secretary was taken. Accordingly, on February 7, 1974, the Robinson plaintiffs commenced a civil action in the United States District Court for the District of Columbia against the Secretary and the Director, Chief Counsel and Compliance Manager of the Office of Revenue Sharing (ORS Officials). Jurisdiction was invoked under 28 U.S.C. § 1331, 1343, 1361, 2201, 2202 and 5 U.S.C. § 701-706. The complaint alleged plaintiffs' prior unsuccessful administrative efforts. It proceeded to allege that the City had allocated a major portion of its 1974 revenue sharing allotment to its police department which was engaged in racially discriminatory employment and promotion practices and policies in violation of Section 122(a) of the Act. Again, the allegations were similar to those made here in 70 C 2220. The complaint prayed a declaratory judgment defining the duties of the Secretary and the ORS Officials; a preliminary injunction ordering them to pursue remedial administrative action against the City aimed at enforcing the statutory proscription against the use of federal revenue sharing funds for racially discriminatory purposes and to report regularly to the court on the progress of the administrative proceedings; a preliminary injunction prohibiting the disbursement of additional revenue sharing funds to the City until its police department was found to be in compliance with all applicable anti-discrimination requirements of the Act; and finally, a permanent injunction incorporating the terms of the preliminary injunction and "also prohibiting the [Secretary and ORS Officials] from permitting the City . . . to retain any federal revenue sharing funds disbursed to it during any period in which the [Chicago Police Department] is found to have engaged in racially discriminatory employment practices."

While the City was not made a defendant in the District of Columbia action, it is clear that it was, at all times, aware of the action and, as subsequently appears, ultimately it intervened in the action as a defendant and obtained its transfer here under 28 U.S.C. § 1404(a).

The action proceeded apace in the District of Columbia. During its early days, the Director of ORS filed what was denominated a "Statement of Reasons" in which he stated that a civil rights investigation conducted by ORS in October, 1973, had revealed "evidence of discrimination within the [Chicago] police department." Plaintiffs thereupon moved for summary judgment and a preliminary injunction against the disbursement of additional revenue sharing funds to the City.

In the course of a memorandum order entered April 4, 1974, the court made certain rulings. It stated that in view of the fact that ORS had found evidence of discrimination within the Chicago Police Department, the "Secretary is under a non-discretionary duty to follow the procedures" of Section 122(b) of the Act, 31 U.S.C. § 1242(b).*fn1 Accordingly, the Secretary was ordered "to notify the Governor of Illinois of the Secretary's determination of non-compliance under 31 U.S.C. § 1242(a), and request the Governor to secure compliance as required by 31 U.S.C. § 1242(b)." The court also declared that the Secretary had the authority to defer federal revenue sharing funds pursuant to a formal administrative hearing as provided by Title VI of the Civil Rights Act of 1964. It also stated that the Secretary had the authority to defer payment of such funds pending the outcome of such an administrative proceeding, citing Board of Public Instruction v. Cohen, 413 F.2d 1201 (5th Cir. 1969). The court then stated that in view of the civil action then pending in this court brought by the Attorney General regarding "the same discrimination charges made by the instant plaintiffs" (i.e., United States v. City of Chicago et al., 73 C 2080) it was premature to decide whether the Secretary should be ordered to conduct administrative proceedings and to defer payment of revenue sharing funds pending the outcome of such proceedings. Thus the motion for a preliminary injunction was denied without prejudice to its renewal at a later date.

On April 9, 1974, the ORS wrote to the Mayor of the City of Chicago and the Governor of Illinois under Section 122(b) of the Act as they had been directed to do by the District of Columbia court. There ensued a series of letters in which, inter alia, the City, through its counsel, denied that its police department was engaged in discriminatory employment and promotion practices and policies.

On May 29, 1974, the Secretary and ORS referred the Robinson-AAPL-NAACP charges of the City's violation of Section 122(a) to the Attorney General pursuant to Section 122(b)(1). On May 30, 1974, the United States, in the action then pending here as United States v. City of Chicago et al., No. 73 C 2080, sought and obtained leave to amend its complaint which charged racial discrimination in the Chicago Police Department under 42 U.S.C. § 1981 and 2000e et seq. to include allegations that that same conduct violated Section 122(a).

The day that the Government tendered the amendment to its complaint here was the day upon which the evidentiary hearing on plaintiffs' several motions for preliminary injunction regarding the hiring and promotion practices of the Chicago Police Department were scheduled to begin. When the Government presented its motion to amend, it stated that it did not seek preliminary injunctive relief in regard to the alleged violations of Section 122(a). Accordingly, the preliminary injunction proceedings here were not concerned with those allegations.

The Robinson plaintiffs in the District of Columbia action were not satisfied with the action taken by the Attorney General on the referral by ORS of their complaint and on June 3, 1974, they renewed their motion for summary judgment and preliminary relief. They urged upon the District of Columbia court that the City remained out of compliance with Section 122(a), that voluntary compliance efforts which had been initiated pursuant to the court's April 4 order had failed, that ORS had failed to adopt procedures for administrative deferral of payments to Chicago, that the Department of Justice had sought no effective revenue sharing relief in the action in this court, that ORS defendants intended to go forward with further revenue sharing payments to the City, including a July 5, 1974 payment of $16,994,394 even if non-compliance continued, and that plaintiffs continued to suffer injury to their civil rights. Thus they sought an order enjoining further revenue sharing payments to the City until its police department had been determined by ORS to be in compliance with Section 122(a).

The Secretary and ORS Officials resisted the renewed motion relying on their referral to the Attorney General and the resulting revenue sharing amendment to the Government's complaint in this court. Thus, despite the fact that the amendment here had not sought preliminary relief in respect to revenue sharing funds, the Secretary and the ORS Officials contended that any preliminary withholding of funds by the District of Columbia court "would be a prerogative of the Department of Justice and the Federal Judge now hearing the police department case in Chicago."

  On June 28, 1974, the District of Columbia court issued a
memorandum opinion and order denying the Robinson plaintiffs'
renewed motion for preliminary relief. It stated:

   . . the only duty imposed upon the Secretary after
  he has determined the impossibility of securing
  compliance with [31 U.S.C.] § 1242(a) is to
  follow one of three alternate courses. The Secretary
  has selected the first alternative [i.e., referral of
  the matter to the Attorney General with the
  recommendation that an appropriate civil action be
  instituted] thereby fulfilling his statutory duty
  until such time as non-compliance has been determined
  by the courts. (Slip opinion p. 2.)

There the matter rested until November 7, 1974 when this court found and concluded that the policies and practices of the City with respect to the employment of patrol officers and the promotion of Sergeants were prima facie racially and sexually discriminatory and in violation of 42 U.S.C. § 1981 and 2000e et seq.*fn2 United States v. City of Chicago, 385 F. Supp. 543 (N.D.Ill. 1974). As a consequence, the City and its officials were preliminarily enjoined from engaging in any act or practice which has the purpose or effect of discriminating against any employee of or any applicant or potential applicant for employment with the Chicago Police Department because of such individual's race, sex, color or national origin. Utilization of the 1971 Patrolman's Eligibility List and the 1973 Sergeant's Eligibility List were preliminarily enjoined because they were the product of racially and sexually discriminatory examinations, practices and policies. The preliminary injunction was issued "without prejudice to an application by the parties, upon a showing of necessity, for interim relief which would permit appointments from the current eligible lists upon an equitable basis pending the development of new hiring and promotion examinations and practices." United States v. City of Chicago, supra, at 562.

On November 26, 1974, the Robinson plaintiffs renewed their motion in the District of Columbia action for summary judgment and for an order directing the temporary withholding of revenue sharing payments to the City. The motion was based on the preliminary injunction findings made here which were tendered to the District of Columbia court. Furthermore, plaintiffs urged that despite the fact that the City's police department had been found to have engaged in unlawfully discriminatory policies and practices regarding employment and promotion, ORS nevertheless intended to continue to make revenue sharing payments to Chicago, and particularly one of approximately $19,000,000 on January 5, 1975.

On December 16, 1974, following negotiations among the parties here, an agreement was reached permitting the employment of 600 patrol officers from the 1971 Patrolman's Eligibility Roster, the use of which had been enjoined, and a 1972 Police Woman's/Matron's Eligibility List. The agreement was presented to this court in the consolidated actions pending here with the consent of all of the parties except intervenor-defendants Louis Arado, et al., who hold positions on the 1973 Sergeant's Eligibility List and who were not directly affected by the agreement. The purpose of the agreement was to alleviate what was represented by the defendants to be a critical shortage of police officers in the City, occasioned in part by the preliminary injunction issued on November 7, 1974. The agreement was approved by an order directing that approximately 600 patrol officer vacancies be filled in three groups of 200 on January 2, 1975, February 2, 1975 and March 2, 1975, with 100 positions in each groups to be filled by blacks and Spanish surnamed males from the 1971 Patrolman's Eligibility List, 33 to be filled by females from the eligibility list based upon the 1972 Police Woman's/Matron's Examination, and 67 positions to be filled by other male persons from the 1971 Patrolman's Eligibility List.

On December 18, 1974, the District of Columbia court heard the Robinson plaintiffs' renewed motion for summary judgment and an order directing the temporary withholding of revenue sharing payments to the City. On the basis of briefs and oral argument and this court's November 7 findings, the court entered an order enjoining the Secretary and ORS Officials from making,

  1. . . . further payments of federal revenue
     sharing funds to the City of Chicago pursuant to
     the State and Local Fiscal Assistance Act of 1972,
     31 U.S.C.A. § 1221, et seq., until further
     order of this Court and in no event until:
     a. Defendants advise this Court and counsel for
     plaintiffs that the City of Chicago is subject to
     a final court order in United States v. Chicago,
     Civ.A.No. 73 C 2080 (N.D.Ill.) and has formally
     assured defendants it will comply in all respects
     with said Order; and
     b. Defendants have monitored the actual compliance
     of the City of Chicago with said final order and
     filed a report with this Court which shows that
     the City has taken adequate steps to comply with
     non-discrimination requirements and what such
     steps are;
  2. That defendants shall thereafter continue to
     monitor the actual compliance of the City of
     Chicago with the non-discrimination requirements
     of the State and Local Fiscal Assistance Act of
     1972 . . .;
  3. That plaintiffs' renewed motion for entry of
     order require defendant to promulgate
     regulations providing for deferral be ...

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