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September 27, 1983


Before Cudahy, Circuit Judge, Grady, District Judge and Bua, District Judge.

The opinion of the court was delivered by: Cudahy, Circuit Judge.


This is the third and we think final chapter of this court's review of Illinois' 1981 state legislative redistricting. In our Opinion of January 20, 1983, as amended, we reevaluated the Crosby plaintiffs' complaints about the South Side district lines particularly in light of the 1982 amendments to the Voting Rights Act. Rybicki v. State Board of Elections, 574 F. Supp. 1147, No. 81 C 6030 (N.D.Ill. Jan. 20, 1983) ("Rybicki II"). Based on our reading of the amended Act, we asked the Commission to submit new district lines in several areas.

Since January, the Commission and the Crosby plaintiffs have worked together to reach an agreement on the new lines.*fn1 We have before us now a Settlement Agreement.*fn2

After reviewing the Settlement Map (which is attached to this Opinion), we find that there has been a significant moving away from coincidence of black-white "boundaries" and the district lines of districts with a very high percentage of blacks. For example, the lines of house district 23 have changed substantially and the percentages of blacks in the district has been reduced from 94% to 84%. Similarly, in house district 24 the percentage of blacks has been reduced from 96% to 89% with some moderate changes in the district lines. The western boundary of house district 36 was left unchanged, as we expected it might be, in order to maintain the black population majority in senate district 18. See Rybicki II at 1157-1158. Finally, the boundaries of house district 31 were changed although the population percentages remained the same. All told a large number of census tracts were affected and we think a substantial step has been taken.

Therefore, since the Crosby and DelValle plaintiffs and the defendants have settled their differences, we hereby incorporate the Settlement Agreement into the redistricting plan ordered by this court on January 12, 1982.*fn3

I dissent and decline to sign the consent decree. Despite some minor changes, the racial wall remains substantially intact, and it is still motivated by the same impermissible considerations which prompted my dissent from the decision of January 12, 1982. By virtue of this consent decree, it is now the law of this Circuit that voting district lines may be drawn — indeed, should be drawn — to suit the preferences of whites who do not wish to associate with blacks and to accommodate black politicians who desire to run in predominantly black districts.[fn1a] These were the primary justifications of the racial wall advanced at the trial and approved by the majority in the decision of January 12, 1982. [fn2a] Today's majority opinion states that in the recent revisions of the court plan which are incorporated in the consent decree, there is a "significant moving away of the coincidence of black-white `boundaries' and the district lines of districts with a very high percentage of blacks." Assuming that to be true for purposes of discussion, there is still a substantial incidence of "black-white boundaries" (i.e., the racial wall) to be found in the revised map.

The Crosby plaintiffs and their attorneys have, in my view, settled a case they had a substantial chance of winning in the Supreme Court, with only slight risk of losing what they gained in this court.[fn3a] It is clear to me that plaintiffs' attorneys do not have an independent understanding of the effects of the new boundary lines and that they continue to rely, as they have throughout this litigation, upon the attorney for the Commission to advise them concerning the demographics of the case. At the hearing on the proposed consent decree which was held on May 27, 1983, the attorneys for the Crosby plaintiffs were unable to explain the maps showing the latest changes and had to rely upon the attorney for the Commission to interpret them.

My dissatisfaction with the settlement is heightened by the fact that it includes not just the merits of the case but the important question of plaintiffs' attorneys fees as well. The appearance of a possible trade-off is hard to avoid in those circumstances, and, for that reason the courts have repeatedly admonished that any effort to negotiate fees should be postponed until after judicial resolution of the merits. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 453-54, n. 15, 102 SCt. 1162, 1167-68, n. 15, 71 L.Ed.2d 325 (1982) (simultaneous negotiation over fees and liability "may raise difficult ethical issues for a plaintiff's attorney . . . "); Parker v. Anderson, 667 F.2d 1204, 1214 (5th Cir. Unit A), cert. denied, ___ U.S. ___, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982); Obin v. Dist. No. 9, International Assoc. of Machinists, 651 F.2d 574, 582-83 and 582, n. 10 (8th Cir. 1981) ("This situation may raise a serious ethical concern . . . because counsel would be placed in the position of negotiating a fee ultimately destined for his pocket at the same time that all thoughts ought to be singlemindedly focused on the client's interest," 651 F.2d at 582 (footnote omitted); Mendoza v. U.S., 623 F.2d 1338, 1352-53 (9th Cir. 1980), cert. denied sub nom., Sanchez v. Tucson Unified School District No. 1, 450 U.S. 912, 101 S.Ct. 1851, 67 L.Ed.2d 336 (1981) ("We cannot indiscriminately assume, without more, that the amount of fees have [sic] no influence on the ultimate settlement . . . when, along with the substantive remedy issue, it is an active element of negotiation. [citation omitted] Nor do we believe that this potential conflict disappears simply because there is no fund or money damages being negotiated"); Prandini v. National Tea Company, 557 F.2d 1015, 1021 (3d Cir. 1977); Jones v. Orange Housing Authority, 559 F. Supp. 1379, 1384 (D.N.J. 1983) ("[H]ad plaintiff's attorney initiated any such discussion [of attorney's fees prior to settlement of the merits], she would have been acting improperly"); Munoz v. Arizona State University, 80 F.R.D. 670, 671-72 (D.Ariz. 1978) ("Attorneys fees are subsidiary to the issue of settlement and should be considered subsequent to reaching a tentative settlement by the parties. [citation omitted] The practice of plaintiffs' counsel here appears to have created a clear conflict of interest"); Lyon v. Arizona, 80 F.R.D. 665, 669 (D.Ariz. 1978) (plaintiff's counsel's negotiation for his fees at the same time he was negotiating for settlement of the claims "constitutes a direct conflict of interest and is impermissible"); Regalado v. Johnson, 79 F.R.D. 447, 451 (E.D.Ill. 1978) ("This interest in the fee makes it improper for the lawyer in a civil rights suit to inject the question of attorney's fees into the balance of settlement negotiations"); City of Philadelphia v. Chas. Pfizer & Co., 345 F. Supp. 454, 471 (S.D.N.Y. 1972) ("A plaintiff's lawyer who has an agreement that defendants will pay his fees has a strong motive so to conduct himself that defendants will not question or oppose the amount for which he ultimately applies as a fee"); Norman v. McKee, 290 F. Supp. 29, 36 (N.D.Cal. 1968), aff'd, 431 F.2d 769 (9th Cir. 1979). See also Manual for Complex Litigation § 1.46 (1981) (1 Pt. 2 Moore's Federal Practice, Pt. 1, § 1.46 (1981) at 75) ("When counsel for the class negotiates simultaneously for the settlement fund and for individual counsel fees, there is an inherent conflict of interest").

In this case, the sequence of events seems to me particularly unfortunate. In February 1982, the attorneys for the Crosby plaintiffs filed interim fee petitions covering their work up to the time of the original decision in the case. The amount claimed by Jenner & Block was $122,419.00, and, in addition, to the complete surprise of the court, two of the named plaintiffs who testified as witnesses in the case, State Representative Carol Moseley Braun and State Senator Richard Newhouse, claimed attorneys fees of $44,460.00 and $33,420.00 respectively. When these original fee petitions were filed in February 1982, a month following our original decision, the Commission filed lengthy and detailed objections in which it argued that plaintiffs were not entitled to recover any fees whatsoever. The Commission contended that the Crosby plaintiffs were not prevailing parties within the meaning of the Civil Rights Attorney's Fees Act, 42 U.S.C. § 1988, inasmuch as the plan proposed by Crosby plaintiffs had been rejected by the court. As an alternative position, the Commission argued that if plaintiffs were entitled to fees, it would be only on those aspects of the case where they prevailed. And in no event, urged the Commission, should the plaintiffs Braun and Newhouse be allowed any attorneys fees, because, inter alia, pro se plaintiffs have consistently been denied fees under Section 1988. The Commission went on to argue that in the Jenner & Block claim there was considerable duplication of time and that a percentage of the amount claimed should be deducted on this account. The Commission further contended that the use of a multiplier was inappropriate because the case was not particularly complex. Finally, the Commission objected to most of the expenses for which reimbursement was sought, including the $50,000.00 requested for United Technologies Unlimited.

This was the position of the Commission in April 1982, when the parties were still at odds on the merits of the case.[fn4a] The Commission has now done a complete about-face. The attorney for the Commission has advised the court that the Commission has no objection to the fees being claimed by Jenner & Block, counsel for the Crosby plaintiffs, nor by Braun and Newhouse. It is apparent that the Commission desires to bring about payment of the full amount claimed, but it needs a court order to do so. The attorney for the Commission has written the court a letter praising the Crosby attorneys, as well as Braun and Newhouse, and stating that the Commission agrees that the time claimed to have been spent "was certainly reasonable and although several lawyers represented the same class of plaintiffs, appropriate efforts were made to avoid duplication of work." The letter is not simply a consent that the fee petitions be granted in full, it is virtually a request that they be granted in full. The interim amount requested by Jenner and Block has now been increased to a final figure of $279,808.80. The claims of Braun and Newhouse remain at $44,460.00 and $33,420.00, so that the total attorneys fees the Commission is willing to have paid from public funds for the Crosby plaintiffs is $357,688.90. The Commission has abandoned its argument that fees should be allowed only for the work which related to the issues on which plaintiffs prevailed, despite the fact that large amounts of time were spent in connection with matters on which the plaintiffs clearly did not prevail.[fn5a] Apparently there is no objection either to the costs being claimed by plaintiffs' attorneys, including the $50,000.00 to United Technologies Unlimited for preparation of a map that was rejected by the court. And, in what is a first in my experience, the Commission no longer makes any objection to the 20 per cent multiplier requested by Jenner & Block, by Braun and by Newhouse. I have never heard of another case in which one side has conceded, much less practically urged, that the other side is entitled to a multiplier.

This case has accomplished some good, but I believe we have stopped woefully short of what the Constitution requires. It is the policy of the law to favor settlements, but I am greatly troubled about this one, both on the merits and because of the attendant circumstances.

[fn1a] As the majority opinion points out (p. 1127, n. 1), Harold Washington, a black, was elected mayor of Chicago in April 1983. Mayor Washington's election seems not inconsistent with the view I expressed in my January 12, 1982, dissent (pp. 1138-1140) to the effect that quota-based districts are not only unconstitutional, they are unnecessary.

[fn2a] Majority opinion of January 12, 1982, pp. 1114-1115. See also dissenting opinion, p. 1127, n. 2.

[fn3a] It is important to note that this is not one of those near-hopeless situations where a litigant must persuade that overburdened court to take the appeal by way of certiorari; it is instead one of those rare cases where an appeal would be as of right, Therefore, there is little doubt the Supreme Court would address the question of the racial wall.

[fn4a] I express no view at this time concerning the validity of the Commission's arguments except to state that they were clearly not frivolous. The significant thing for present purposes is that the arguments were made.

[fn5a] An example is the work done on the map which was tendered as part of plaintiffs' offer of proof made after the trial was concluded. The offer was refused by the court as coming too late and the map was not even considered. The point here is not so much that the plaintiffs are clearly not entitled to fees for work which did not contribute to the final result. Arguments could be made either way as to whether particular work did or did not contribute. The point, rather, is that in this case we are witnessing a rare if not unique exhibition of generosity by a party litigant: an agreement that the opponent be compensated for every minute of the more than 2,000 hours claimed to have been spent on ...

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