due process violation, and finally noting that if this court ruled for the plaintiffs on remand it could take account of equitable factors in fashioning a remedy. The plaintiffs argue that this ruling amounts to a conclusion that the equitable balance in this case favors the plaintiffs.
The plaintiffs' reliance on the Seventh Circuit's statements is understandable. Yet, when read in context, the statement regarding the potential impact of finding a due process violation does not stand for the proposition the plaintiffs urge. The Seventh Circuit was addressing not whether Logan applies retroactively to this case, but instead whether (assuming Logan's applicability) the defendant had violated due process at all. Dire or not, it is difficult to see how the consequences of finding a violation could impact on whether a violation occurred: this court knows of no case in which a court has held that whether a defendant violated due process turns on how many times he did so or on the costs he would face in remedying the violation. But cf. Easter House v. Felder, 879 F.2d 1458 (7 Cir. 1989) (Easterbrook, J., concurring) (suggesting that the existence of a due process violation may turn on the frequency with which state officials provide inadequate procedures). Thus, while the Seventh Circuit's stated confidence that this court could fashion a reasonable remedy may have made it more comfortable in allowing this case to proceed, it cannot be read as a ruling on the extent or the legal ramifications of the burden the defendant would face.
It may well be true that this court could fashion a remedy that would not force the Department "to squander its entire budget." 827 F.2d at 73. But there is no question that any relief this court legitimately would impose would have to be quite burdensome to the state. The very process of locating all of the class members would cost the Department many tens of thousands of dollars, and this cost pales in comparison to the expense of reopening and processing the claims of class members who decide to pursue their charges.
Of course, the fact that the defendant would suffer a burden from an adverse ruling does not mean that imposing such a burden would be inequitable: Retroactivity always imposes costs on the adversely-affected party, but liability does not equate with inequity. To be inequitable, the defendant must be subject to costs above and beyond those it would have incurred had it applied the correct rule all along. Such is the case here. The defendant faces massive exposure in this case not merely because the law changed, but because so much time passed between the date the Illinois Supreme Court ruled the plaintiffs' claims barred and the date when the plaintiffs filed this lawsuit. The Seventh Circuit has ruled that the plaintiffs are not at fault for this delay in the sense necessary to bar them by laches, but (aside from its fault in getting the law wrong) the state is not responsible for the delay either.
More important even than the inequity to the defendant is the inequity to the employers who would become the respondents to employment discrimination charges were the plaintiffs granted the relief they seek. The plaintiffs note that Bennett held that these employees are not indispensable parties because this case cannot establish their liability for discrimination. 827 F.2d at 71-72.
Yet, there is no question that the employers will suffer injury if the plaintiffs prevail here. Innocent employers will have to defend against discrimination charges that are many years old, with some facing liability because they lack the evidence to dispute decade-old claims; and guilty employers will face excessive potential liability through a delay that, whoever's fault it was, was not theirs.
Finally, the inequity to the plaintiffs enters the picture. There is no question that the plaintiffs will suffer from nonretroactive application inasmuch as they will be unable to pursue their discrimination claims, and that they will do so because Illinois failed to abide by what we now know to be a constitutional mandate. Yet, like a finding of retroactivity, non-retroactivity always will impose this sort of loss -- or in the criminal context even worse -- on the adversely-affected party; courts order it nonetheless when the inequity of retroactivity would exceed that of nonretroactivity. On the record before this court, this is such a case.
The defendant's motion for joinder is denied. The plaintiffs' motion for summary judgment on the issue of liability is denied. Judgment is entered for the defendant.
DATE: September 6, 1989