United States District Court, Northern District of Illinois, E.D
March 5, 1981
MICHAEL L. SHAKMAN AND PAUL M. LURIE ET AL., PLAINTIFFS,
THE DEMOCRATIC ORGANIZATION OF COOK COUNTY; DEMOCRATIC COUNTY CENTRAL COMMITTEE OF COOK COUNTY AND ALL ITS MEMBERS; GEORGE W. DUNNE, INDIVIDUALLY AND AS PRESIDENT OF THE BOARD OF COUNTY COMMISSIONERS OF COOK COUNTY, AS PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE FOREST PRESERVE DISTRICT OF COOK COUNTY, AND AS CHAIRMAN OF THE DEMOCRATIC COUNTY CENTRAL COMMITTEE OF COOK COUNTY; CITY OF CHICAGO, A MUNICIPAL CORPORATION; JANE R. BYRNE, MAYOR OF THE CITY OF CHICAGO; MORGAN M. FINLEY, INDIVIDUALLY AND AS CLERK OF THE CIRCUIT COURT OF COOK COUNTY; EDWARD J. ROSEWELL, INDIVIDUALLY AND AS TREASURER OF COOK COUNTY; STANLEY J. KUSPER, JR., INDIVIDUALLY AND AS CLERK OF COOK COUNTY; THOMAS C. HYNES, INDIVIDUALLY AND AS ASSESSOR OF COOK COUNTY; FOREST PRESERVE DISTRICT OF COOK COUNTY, A MUNICIPAL CORPORATION; RICHARD J. ELROD, INDIVIDUALLY AND AS SHERIFF OF COOK COUNTY; THE CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
This cause comes before the court on the motions of the
Democratic Organization of Cook County; the Democratic Central
Committee of Cook County; Richard J. Elrod, the Sheriff of Cook
County; Morgan M. Finley, the Clerk of the Circuit Court of Cook
County; Sidney R. Olsen, the Recorder of Deeds of Cook County;
Stanley T. Kusper, Jr., the County Clerk of Cook County; Edward
J. Rosewell, the Treasurer of Cook County; Thomas C. Hynes, the
Assessor of Cook County; George W. Dunne, President, Cook County
Board of Commissioners; the Chicago Park District; and the City
of Chicago [hereinafter the Democratic defendants] to have the
judgment order of this court dated September 24, 1979,
481 F. Supp. 1315, certified for appeal under Rule 54(b),
Fed.R.Civ.P.,*fn1 and on the motion of the plaintiffs for entry of
judgment granting relief as to hiring practices. For the reasons
hereinafter stated, all of these motions will be denied. The
September 24, 1979 judgment order, however, will be certified for
appeal pursuant to 28 U.S.C. § 1292(b).
Rule 54(b) Motions
Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure:
When more than one claim for relief is presented in
an action, . . . or when multiple parties are
involved, the court may direct the entry of a final
judgment as to
one or more but fewer than all of the claims or
parties . . . upon an express determination that
there is no just reason for delay and upon an express
direction for the entry of judgment.
Under Rule 54(b), however, only judgment orders which are final
in nature can properly be certified for appeal.*fn2
Occidental Petroleum Corp., 577 F.2d 298
, 302 (5th Cir. 1978);
Acha v. Beame, 570 F.2d 57
, 62 (2d Cir. 1978). A non-final order,
even when it pertains only to some of the parties in the
litigation, is not appealable under the rule.
In the order entered by this court on September 24, 1979,
partial summary judgment was granted to the plaintiffs on the
question of whether the Democratic defendants, in their
capacities as governmental employers, by conditioning their
hiring of certain public employees upon party or political
affiliation violated the candidate-plaintiffs' constitutionally
protected right to an equal chance to be elected, and the
voter-plaintiffs' right to have a reasonably effective voice in
the electoral process. The judgment order was, by its terms,
limited to the issue of the Democratic defendants' liability,
with the question of relief left for later resolution. Shakman v.
Democratic Organization of Cook County, 481 F. Supp. 1315, 1325
n. 4 (N.D.Ill. 1979). The September 24, 1979 order thus was quite
similar to that at issue in Liberty Mutual Insurance Co. v.
Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1967),
regarding which the United States Supreme Court noted:
. . The order . . . constitutes a grant of partial
summary judgment limited to the issue of petitioner's
liability. Such judgments are by their terms
interlocutory, see Fed.Rule Civ.Proc. 56(c), and
where assessment of damages or awarding of other
relief remains to be resolved have never been
considered to be `final' within the meaning of
28 U.S.C. § 1291.
Id. at 744, 96 S.Ct. at 1206 (emphasis supplied).
After Liberty Mutual, the judgment order entered by this court
on September 24, 1979 cannot reasonably be considered final for
purposes of Rule 54(b). Lewis v. Tobacco Workers' International
Union, 577 F.2d 1135, 1138-39, 1138 n. 5 (4th Cir. 1978); Acha v.
Beame, 570 F.2d 57, 62 (2d Cir. 1978). That being true, the
Democratic defendants' motions to have that order certified for
appeal under Rule 54(b) must be denied.
Motion for Entry of Judgment Granting Relief as to Hiring
Through their motion for entry of judgment granting relief as
to hiring practices, the plaintiffs propose to have the
Democratic defendants implement a number of hiring-related
procedures which, if followed, would insure that the defendants'
hiring practices did not operate to impermissibly impinge upon
their [the plaintiffs'] Constitutionally protected rights.
Their proposed procedures, the plaintiffs quite properly
contend, while comprehensive, are not so complex or extensive as
to make implementation of them oppressive to the defendants.
Implementation of these procedures, however, as they are rather
numerous and reasonably involved, would very probably prove
costly to the defendants, a point of significance when it is
remembered that it is public money which will be expended in this
regard. Further, because the plaintiffs' proposed procedures
represent a substantial change from the hiring procedures
presently being utilized by the defendants, implementation of
them likely will, at least at the outset, be quite burdensome and
cumbersome to the defendants' personnel.
Also, it must be remembered that the Democratic defendants
herein are municipal entities who employ large numbers of people.
Because they are such entities, it cannot be said with reasonable
the disruption caused by implementation of the procedures
requested by the plaintiffs, and possibly from recission of those
procedures if this court's judgment order of September 24, 1979
ultimately is overturned on appeal, will not be so severe that,
from a public interest standpoint, it would outweigh the benefits
which would accrue from immediate implementation of the
When consideration is given to these facts,*fn3 as the legal
questions associated with this aspect of the Democratic
defendants' liability also are reasonably unsettled, the court
believes that the interests of justice would best be served if
the question of the defendants' liability is resolved more
completely before any affirmative relief is imposed upon them.
The plaintiffs' motion for entry of judgment granting relief as
to hiring practices, therefore, will be denied.
28 U.S.C. § 1292(b)
Regarding appeals from interlocutory orders, 28 U.S.C. § 1292(b)
provides in pertinent part:
(b) When a district judge, in making in a civil
action an order not otherwise appealable under this
section, shall be of the opinion that such order
involves a controlling question of law as to which
there is substantial ground for difference of opinion
and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such
order. The Court of Appeals may thereupon, in its
discretion, permit an appeal to be taken from such
order . . .
This court's judgment order of September 24, 1979, in that it
is interlocutory in nature, is one especially well suited for
certification under § 1292(b). The controlling question of law in
that judgment was whether, in light of the stipulated facts
submitted, the challenged practices of the Democratic defendants,
as governmental employers, in conditioning their hiring of
certain public employees upon party or political affiliation
operated to deny the candidate-plaintiffs their Constitutionally
protected right to an equal chance to be elected, and the
voter-plaintiffs their right to an equally effective voice in
elections. Shakman v. Democratic Organization of Cook County,
481 F. Supp. 1315, 1332-41 (N.D.Ill. 1979). See Shakman v. Democratic
Organization of Cook County, 435 F.2d 267, 270 (7th Cir. 1970).
As was indicated in the September 24, 1979 Opinion, this court is
of the belief that the defendants' hiring practices did operate
to adversely and impermissibly affect these Constitutionally
protected rights of the plaintiffs. This conclusion, however,
because it relates to and is founded solely upon the defendants'
patronage hiring practices, definitely is one upon which
reasonable minds may differ.
In respect to hiring, it presently cannot be said that an
initial conditioning of governmental employment on political
affiliation or other considerations is per se violative of a job
seeker's Constitutional rights. That question, very simply, has
not as yet been resolved with finality. See Mazus v. Department
of Transportation, Commonwealth of Pennsylvania, 629 F.2d 870,
873 (3d Cir. 1980). See also Branti v. Finkel, 445 U.S. 507, 520
n. 14 (Opinion of the Court), 522 n. 2, 100 S.Ct. 1287, 1295 n.
14, 1297 n. 2, 63 L.Ed.2d 574 (Powell, J., dissenting) (1980).
Such being true, this court does not feel that it can be stated
with absolute certainty that the Constitutional rights of
candidates and the electorate to a fair and equitable electoral
process are capable of being infringed by such conditioning, even
when it is practiced in the manner utilized by the defendants
herein. The court thus believes that appellate review of this
legal question is appropriate before the defendants should be
made to implement the costly and somewhat burdensome procedures
which will be required if the plaintiffs are to be assured the
relief they seek.
Final resolution of this question, the court believes, also
will materially advance the termination of this litigation. This
is so because, as was true with other issues in this matter, if
the question of the defendants' legal liability is resolved, the
cause very possibly will settle. For nearly a year after summary
judgment was entered against the Democratic defendants on the
hiring issue, settlement negotiations were conducted between the
parties. In the various status conferences held in the cause
during that period, it was reported that negotiations were
progressing, and that all parties were acting forthrightly and in
good faith. The negotiations failed, though, and no settlement
was reached at least in part because the defendants were
unwilling to make what would prove to be costly, burdensome and
encumbering procedural changes when they felt the plaintiffs'
ultimate legal position was weak. An appellate determination of
the Democratic defendants' liability on the hiring issue will
remove that obstacle to settlement.
In conclusion, as this court strongly believes that its
judgment order of September 24, 1979 is one which should be
certified for appeal under 28 U.S.C. § 1292(b), such will be
For the reasons stated above, the following is ordered:
(1) The motions of the Democratic defendants to have
the judgment order of this court dated September
24, 1979 certified for appeal under Rule 54(b),
Fed.R.Civ.P., are DENIED.
(2) The motion of the plaintiffs for entry of
judgment granting relief as to hiring practices
(3) The judgment order of this court dated September
24, 1979, being interlocutory in nature, is
certified for appeal pursuant to 28 U.S.C. § 1292(b).
IT IS SO ORDERED.