Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 C 3268 - Susan Getzendanner, Judge.
Before BAUER, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
The City of Chicago spied on and infiltrated several organizations of political dissidents. The organizations and some of their members claimed that the infiltration and subsequent adverse publicity violated their rights under the first amendment to the Constitution, applied to the states through the fourteenth. In 1975 the City stopped the infiltration and abolished the unit of the Police Department that had been responsible for it. In 1981 the City consented to the entry of an injunction against investigation and infiltration in the absence of reasonable grounds to believe that the targets are violating or likely to violate the law. Alliance to End Repression v. City of Chicago, 561 F. Supp. 537 (N.D. Ill. 1982). The federal government consented to similar relief. Alliance to End Repression v. City of Chicago, 91 F.R.D. 182 (N.D. Ill. 1981), 561 F. Supp. 575 (1983) (injunction implementing decree), reversed, 742 F.2d 1007 (7th Cir. 1984) (en banc).
The plaintiffs wanted damages as well as an injunction. One group of plaintiffs agreed with the City that the organizations would accept $20,625 and the individuals $10,000 apiece. The plaintiffs in all pending actions accepted this with five exceptions: the Alliance to End Repression, the Chicago Peace Council, William Hogan, Lucy Montgomery, and A.A. (Sammy) Rayner, Jr. These five were happy with the money offer and the terms of the injunction but also wanted a judicial declaration that their rights had been violated. The parties discussed the possibility of the City's adding a confession of misconduct to the money and injunction, but they could not agree. The lawyer for these five plaintiffs explained in open court:
THE COURT: If the City were to agree that the conduct of the Red Squad in the mid-60s was in fact unconstitutional, would that satisfy you?
MR. GUTMAN: If we could do it in a form - our damages claims are secondary. If we could have that in a form that would serve as a legal precedent - for example, if they did not contest that part, and we might agree to limiting the damages, as long as it was something that would serve as a legal precedent, because as we said, we are not interested in the money, it's the principle of the constitutionality of secret police operations.
The parties ultimately agreed to submit the case to the court on stipulated facts and not to appeal the disposition. Plaintiffs agreed to accept as complete relief $10,000 for any prevailing individual and $20,625 for any prevailing organization. The district judge then held that Rayner and Hogan had not established the sort of "chilling effect" that, under Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972), is an essential ingredient of a justiciable controversy about surveillance. Alliance to End Repression v. City of Chicago, 627 F. Supp. 1044, 1052-53 (N.D. Ill. 1985). The other three plaintiffs, the court concluded, had justiciable claims and were entitled to judgment on the merits. Id. at 1050-56. The court awarded $10,000 to Montgomery and $20,625 to each organization. The parties kept their bargain; no one appealed. The plaintiffs' lawyer then asked for attorneys' fees under 42 U.S.C. § 1988, and the district judge awarded him about $129,000. The City has appealed that award to the extent it reflects time spent after the parties agreed on the money damages.
Only "prevailing" parties are entitled to fees under § 1988, and the two sides disagree about what it means to prevail. The City observes that by insisting on a judicial decision, two plaintiffs gave up a sure $10,000 while the other obtained only what they would have had without a trial. The marginal value of the decision to the plaintiffs was a negative $20,000. Why, the City asks, should it be required to pay for the many hours the plaintiffs' counsel spent to reduce the plaintiffs' recovery? It relies on Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Spanish Action Committee v. City of Chicago, 811 F.2d 1129 (7th Cir. 1987); Lenard v. Argento, 808 F.2d 1242 (7th Cir. 1987); Palmer v. City of Chicago, 806 F.2d 1316 (7th Cir. 1986); and other cases saying that courts may not award fees for aspects of the case on which the plaintiffs lost (or achieved no material victory). The plaintiffs reply that they won the case. The City said it was not liable; the judge disagreed; and the marginal cost of litigating on behalf of the two losing plaintiffs was negligible.
More, the plaintiffs say, they won the only thing that mattered to them: the precedent. The precedential aspect of a decision may be valuable, and the award of fees may reflect the benefits judicial decisions provide for other people. E.g., City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 2694-95, 91 L. Ed. 2d 466 (1986) (plurality opinion), id. at 2700 (Powell, J., concurring); Lenard, 808 F.2d at 1248; Kirchoff v. Flynn, 786 F.2d 320, 327 (7th Cir. 1986). The City rejoins that this precedent was worthless because the injunction issued in 1981 gave the plaintiffs and others similarly situated all they could hope for. See our en banc opinion, 742 F.2d at 1015-16. Spanish Action Committee, 811 F.2d at 1136, relied on the injunction to conclude that a similar suit could not "generate any 'external benefits' in civil rights enforcement, beyond the damages awarded, for which the plaintiff should be compensated." But the district court distinguished Spanish Action Committee on the ground that the legal issue here was unsettled and that the court's opinion therefore may benefit people not covered by the injunction - for example, residents of other cities faced with similar surveillance. The plaintiffs add that the precedent will prevent public officials from invoking qualified immunity defenses in future cases, which will either induce compliance with the constitutional rules or smooth the path of future plaintiffs.
We have some doubts about the value of this precedent. The parties agreed not to appeal, which ensured that the decision would not become authoritative within the Seventh Circuit. (A decision is authoritative when it is binding because of the hierarchy among courts, rather than solely because it is persuasive.) A decision of a district judge has persuasive rather than authoritative effect, see Colby v. J.C. Penney Co., 811 F.2d 1119, 1123-24 (7th Cir. 1987). That effect is diminished when appeal is impossible; a constraint on a judge's decision has been removed. Unappealable decisions often lack preclusive effects between the parties, see Restatement (Second) of Judgments § 28(1) and comment a (1982), because the absence of a threat of review makes them less reliable. The value of an unreviewable opinion depends on the persuasiveness of its reasoning rather than one the authority of its author as a judge. This means that the opinion would not overcome an immunity defense, for public officials are entitled to immunity until it has been authoritatively decided that certain conduct is forbidden. Even after an authoritative decision, "until the constitutional right has been stated so that reasonably competent officers would agree on its application to a given set of facts, it has not been 'clearly established'." Chapman v. Pickett, 801 F.2d 912, 923 (7th Cir. 1986) (dissenting opinion), adopted in Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987). See also Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986); Be Vier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986); Benson v. Allphin, 786 F.2d 268, 275-76 (7th Cir. 1986).
Whether the slight precedential effect of an unreviewable decision is the sort of victory for which fees may be awarded is a nice question, but not one we shall decide. There is a more fundamental problem: the absence of a "case or controversy" within the meaning of Article III. This case was settled before the judge decided it. The defendants accepted an injunction against the conduct; the parties agreed on the monetary remedy too. There followed a wager of law: the plaintiffs staked $10,000 (or $20,625) apiece that they were right. Two lost all; three won and got both the money and the precedent. The parties' sole dispute concerned the contents of the court's opinion. That is not a justiciable controversy. It is a request for an advisory opinion - one that cannot help the plaintiffs and has effects, if at all, on strangers to the litigation.
The parties proceed as if the legal views of the district court were the "stakes" of the litigation. The plaintiffs want to acquire an opinion containing certain views; the defendants want to avoid the expression of these views. If this kind of "controversy" were enough to keep a case alive, then an advisory opinion would be its own justification - the fact that the parties cared enough to fight would show that they had a real controversy. Whatever the merits of this as an original interpretation of Article III, it is not the Supreme Court's view and never has been. E.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Haitian Refugee Center v. Gracey, 257 U.S. App. D.C. 367, 809 F.2d 794 (D.C. Cir. 1987) (three opinions exploring every corner of the case-or-controversy requirement). The expression of judicial views is a by-product of the need to decide the case. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). A discussion of constitutional law is a means to resolve a real dispute between the parties, to be avoided unless essential to that end. No matter how desirable it may be to have a constitutional question settled, the resolution must await the concrete controversy, for only then does the judge have an adequate justification for giving an opinion. Understanding that the constitutional is a by-product of a need to develop all of the premises used to resolve a concrete controversy, rather than the raison d'etre of the judicial system, leads to the conclusion that the parties should not have asked the judge to decide this case, and she should not have acquiesced.
Our case is much like Ashcroft v. Mattis, 431 U.S. 171, 52 L. Ed. 2d 219, 97 S. Ct. 1739 (1977). The police killed a fleeing suspect, whose heirs argued that the use of deadly force violated the fourth amendment. Because of the officers' qualified immunity the plaintiffs were not entitled to damages, and obviously they were not entitled to an injunction; there was no risk of the deceased being shot again. Nonetheless the court of appeals, seeking to resolve a recurrent question of constitutional law, declared that the use of deadly force is unconstitutional. The Supreme Court thought the opinion advisory, because no relief turned on the court's answer to the question. We have the same situation except for the stipulated damages: $10,000 (or $20,625) formally changed hands as a result of the answer to the ...