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March 7, 1996

JAMES R. KING, Plaintiff,

The opinion of the court was delivered by: KANNE; NORGLE; COAR

 Plaintiff, James R. King ("King"), claims that the configuration of the Illinois Fourth Congressional District violates the Fourteenth Amendment. To address this claim, this court must review the history of the current district map and resolve the unusual procedural issues that accompany King's lawsuit.

 Because the Illinois General Assembly failed to reapportion Illinois' legislative districts following the issuance of the 1990 census report, that task fell to an earlier panel of this court by default. *fn1" See Hastert v. State Bd. of Elections, 777 F. Supp. 634, 641 (N.D. Ill. 1991) (hereinafter "Hastert"). On November 6, 1991, the Hastert court issued an order reapportioning Illinois' twenty (20) congressional seats. Through this order, the Hastert court created a "majority-minority" Hispanic congressional district for the first time in Illinois history. The situs of this Hispanic majority district is Illinois' Fourth Congressional District, which is located in Cook County and the City of Chicago. *fn2" Since November 6, 1991, the United States Supreme Court has issued two course-altering opinions concerning congressional reapportionment and the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 125 L. Ed. 2d 511, 509 U.S. 630, 113 S. Ct. 2816 (1993); Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995). In addition, two congressional elections have been held; in both elections, the electorate of the Fourth Congressional District sent a Hispanic representative to Congress.

 I. Relevant Procedural History

 Following the filing of King's lawsuit, this court permitted Congressman Bobby Rush (Dem.-IL, 1st Dist.), Timuel Black, Al Johnson, Elvira Carrizales, Neomi Hernandez, the Chicago Urban League, and the United States Department of Justice ("DOJ") to intervene as defendants under Federal Rules of Civil Procedure 24(a) and (b). *fn4" In addition, the court permitted the Democratic National Committee to participate amicus curiae.

 On August 15, 1995, King filed a motion for a preliminary injunction seeking to enjoin the Illinois Congressional primary and general elections presently scheduled for March 19, 1996, and November 5, 1996, respectively. King predicated his request for a preliminary injunction on the alleged constitutional deprivation articulated in his complaint; namely, that the Hastert court's configuration of the Fourth Congressional District on the basis of race violated his rights under the Fourteenth Amendment to participate in a "color-blind election process." Pursuant to Rule 65(a)(2), this court consolidated the hearing on King's preliminary injunction motion with the three day trial conducted December 13-15, 1995, on the merits of King's complaint. See Fed. R. Civ. P. 65(a)(2). Since many of the arguments advanced at trial by King either directly or indirectly challenged or implicated factual findings and legal conclusions made by the Hastert court, this court first had to resolve several procedural issues concerning the relationship between this litigation and the Hastert litigation. Two issues predominated: first, whether and to what extent the parties are bound by the Hastert court's findings of fact; and second, the standard by which this court would review the Hastert court's conclusions of law.

 A. Standards Governing the Hastert court's Findings of Fact

 1. Rule 60(b)

 Defendant State Board of Elections ("SBOE") and defendant-intervenor DOJ argued that King's lawsuit should be considered an attempt to modify or vacate the Hastert court's reapportionment order since it essentially attacked the factual findings and legal conclusions of the Hastert opinion. Based upon this characterization, the SBOE and DOJ maintained that King's lawsuit should have been transferred to the Hastert panel pursuant to Local General Rule 2.21D(8). *fn5" If the case had been transferred, King would have had to petition the Hastert court to reopen those proceedings and permit him to intervene. The Hastert court, in turn, would have considered King's challenges to its November 1991 reapportionment order under Rule 60(b)(5) or (b)(6). *fn6" Proceeding under Rule 60(b) would have been a daunting task, since "relief from a judgment under Rule 60(b) is an extraordinary remedy reserved for the exceptional case." *fn7" See Camp v. Gregory, 67 F.3d 1286, 1290 (7th Cir. 1995).

 This court, which includes two of the three judges who presided over the Hastert case, declined to transfer King's case as suggested by the SBOE and DOJ for three reasons. First, the doctrine of the law of the case mandated this court's rejection of the SBOE and DOJ argument. The law of the case doctrine typically provides that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Donohoe v. Consolidated Operating & Prod. Corp., 30 F.3d 907, 910 (7th Cir. 1994) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed. 2d 318 (1983)). The doctrine applies not only to the prior decisions of the same court, but also to prior decisions of a coordinate court in the same case. Id. (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-18, 108 S. Ct. 2166, 2177-79, 100 L. Ed. 2d 811 (1988)). In this context, the doctrine of the law of the case functions like the doctrine governing reconsideration; that is, "a court will ordinarily not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling." See Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir. 1991) (quoting Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir. 1982), cert. denied 459 U.S. 1226, 103 S. Ct. 1233, 75 L. Ed. 2d 467 (1983)). Thus, when a court is asked to change a prior decision in its own case or in the case of a coordinate court, the law of the case doctrine permits it to avoid reexamining the prior decision "unless powerful reasons are given for doing so." Id.

 In this case, King filed a petition for the appointment of a three judge panel pursuant to 28 U.S.C. section 2284(a) shortly after filing his complaint. *fn8" The SBOE agreed that a three judge panel was appropriate but argued that the three judges who presided over the Hastert litigation should be reappointed since King's complaint sought "to modify" that court's redistricting order. (See SBOE Resp. Mem., at PP4-5). In accordance with 28 U.S.C. section 2284(b)(1), the petition was transferred to the Honorable Richard A. Posner, Chief Judge of the Seventh Circuit Court of Appeals, for decision. *fn9" Judge Posner appointed the present panel, and thereby rejected the SBOE's request for assignment of the case to the Hastert court.

 Second, neither the SBOE nor DOJ established that Local Rule 2.21D(8) applied to the unique circumstances of King's complaint. The purpose of Local Rule 2.21D(8) appears to be three-fold: to prevent forum or judge shopping; to ensure continuity of decisions; and to promote judicial economy. Given these purposes, it is axiomatic that when a court enters a judgment resolving a dispute among certain parties, the same court must preside over any secondary action brought by one of the parties to enforce, modify or vacate that judgment. King, however, does not fall within the parameters of this axiom. He was neither a party to nor in privity with any party to the Hastert proceeding, and thus lacked standing to petition the Hastert court under Rule 60(b) for an order vacating or modifying its judgment order. See Fed. R. Civ. P. R. 60(b); National Acceptance Co. of Am. Inc. v. Frigidmeats, Inc., 627 F.2d 764, 766 (7th Cir. 1980) ("it is well settled that . . . 'one who was not a party lacks standing to make a 60(b) motion'") (quoting Wright & Miller, Federal Practice and Procedure § 2865, at 225-26 (1973)). In addition, there is no evidence that he engaged in any impermissible judge shopping, which would have been a particularly fruitless endeavor since Judge Posner appointed two of the three Hastert judges to preside over this case. Similarly, the interests of judicial economy were not compelling as King alleged that both the governing law and the relevant facts had changed since the Hastert court issued its reapportionment order. Thus, the law of the case doctrine notwithstanding, the DOJ and SBOE failed to establish that King's complaint was eligible for reassignment under Local Rule 2.21D(8).

 Finally, the Hastert court did not retain jurisdiction to hear and decide future constitutional challenges to its reapportionment order. The DOJ argued that the Hastert court implicitly retained jurisdiction to enforce or modify its judgment in light of changed circumstances, but the authority it cited concerned the modification of injunctive relief. See System Fed'n No. 91 Ry. Emp. Dept., AFL-CIO, v. Wright, 364 U.S. 642, 647-48, 81 S. Ct. 368, 371, 5 L. Ed. 2d 349 (1961) (district court abused its discretion in refusing to modify consent decree that enjoined a number of specific discriminatory acts); United States v. Swift & Co., 286 U.S. 106, 114, 52 S. Ct. 460, 462, 76 L. Ed. 999 (1932) (court in equity has power to modify an injunction to adapt to changed conditions, even where the injunction was entered by consent decree). This authority is inapposite as the Hastert court issued its reapportionment order pursuant to Section 2 of the Voting Rights Act. To that end, the Hastert court ordered that the court-ordered redistricting plan "shall govern the nomination and election of members of the House of Representatives from the State of Illinois, effective with respect to the 1992 primary and continuing until Illinois congressional districts are reapportioned in accordance with law." Hastert, 777 F. Supp. at 662. The Hastert court thus not only declined to retain jurisdiction to consider subsequent non-party challenges to its reapportionment order but, equally important, it conditionally limited the duration of its order. *fn10" See Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 730 n.1 (5th Cir. 1978) ("we note . . . that in reapportionment, unlike school desegregation and institutional reform cases, the court's jurisdiction is not continuing, and the plan, once adopted and acted upon [i.e., an election is held], does not require further judicial supervision").

 Accordingly, this court did not transfer King's complaint to the Hastert court for further proceedings under Rule 60(b).

 2. Conditional Judicial Notice

 Although King was not a party to the Hastert litigation and thus could not be bound by that court's findings of fact or judgment under the doctrines of collateral estoppel or res judicata,11 his complaint both directly and indirectly challenged the Hastert court's findings of fact and judgment. In recognition of the unique nature of King's claim and to expedite the proceedings at trial, this court took judicial notice of the Hastert court's findings of fact under Federal Rule of Evidence 201. See, e.g., Philips Medical Sys. Int'l, B.V. v. Bruetman, 982 F.2d 211, 215 n.2 (7th Cir. 1992) (federal courts may take judicial notice of proceedings, including evidence, in other courts both within and outside of the federal judicial system "if the proceedings have a direct relation to matters at issue"); Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 369 (7th Cir.), cert. denied 461 U.S. 960, 103 S. Ct. 2436, 77 L. Ed. 2d 1321 (1983) (same). More specifically, this court informed the parties that it would admit into evidence the Hastert court's finding of facts and would adopt those findings as conclusive unless King showed by law or otherwise that the Hastert court either erred in making specific findings of fact or that the circumstances had changed since November 1991 such that specific findings of fact were no longer valid and needed to be modified. See Tr., at 36, 652.

 This court conditionally admitted the Hastert court's findings of fact through judicial notice for two reasons. First, had King been a party or in privity with a party to the Hastert action, his constitutional challenge of the Hastert court's order and findings of fact would have proceeded under Rule 60(b). *fn12" Under Rule 60(b), the Hastert court's findings of fact made pursuant to Rule 52(a) would have been law of the case. See Bennett v. Arrington, 806 F. Supp. 926, 927 n.2 (N.D. Ala. 1992), aff'd in part, rev'd in part on other grounds 20 F.3d 1525 (11th Cir. 1994). *fn13" As such, the Hastert court would not have reexamined its factual findings to decide a Rule 60(b) motion unless powerful reasons existed for doing so -- such as the occurrence of manifest error or a controlling or significant change in the factual circumstances. *fn14" Since King's lawsuit is at its very core a challenge to the Hastert court's order, this court concluded that King's lack of standing under Rule 60(b) should not determine the standard of review applicable to the Hastert court's findings of fact. The court therefore adopted the standards that would have applied had King sought to modify the Hastert order under Rule 60(b). *fn15" The court also conditionally admitted the Hastert court's findings of fact to promote important interests in finality and judicial economy. *fn16"

 To demonstrate that the Hastert court erred in making a specific finding of fact, King has to establish that the court committed clear error. *fn17" See Fed. R. Civ. P. 52(a). A finding of fact is "'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) (citation omitted); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948); United States v. Price, 54 F.3d 342, 348 (7th Cir. 1995). Under this standard, the court must strongly defer to the trier of fact's findings. In re Love, 957 F.2d 1350, 1354 (7th Cir. 1992). As such, "if the trial court's account of the evidence is plausible in light of the record viewed in its entirety, a reviewing court may not reverse even if convinced that it would have weighted the evidence differently as a trier of fact." Id. "Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105 S. Ct. at 1511. Accordingly, unless clear error is established, this court will defer to the Hastert court's findings of fact. See Johnson v. Mortham, 915 F. Supp. 1529, 1995 WL 707856 (N.D. Fla. 1995). *fn18"

  Alternatively, King must establish by a preponderance of evidence that specific factual circumstances have changed. See Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 730 (5th Cir. 1978). Once such evidence has been proffered, this court will analyze the particular finding of fact de novo.

 In addition to taking judicial notice of the Hastert court's findings of fact, this court took judicial notice of the evidence presented to the Hastert court. (Tr. at 638). The court admitted this evidence for the limited purpose of establishing the evidentiary record upon which the Hastert court relied to make its decision. (Id.). The Hastert court's evidentiary record was not admitted for any other purpose, except where one of the parties individually or jointly moved for the admission of a particular portion of that record.

 B. Standard of Review of the Hastert court's Conclusions of Law

 An appellate court traditionally reviews a district court's conclusions of law de novo. See Apostol v. Landau, 957 F.2d 339, 341 (7th Cir. 1992). Under this standard, the appellate court is not bound by the district court's legal conclusions but instead examines the law "anew." Lulich v. Sherwin-Williams Co., 992 F.2d 719, 721 (7th Cir. 1993); Black's Law Dict. 392 (5th ed. 1979). Although this court is not an appellate court, the nature of King's complaint requires it to review the Hastert court's legal conclusions. Under these circumstances, this court adopted the law of the case doctrine as the standard of review for the Hastert court's legal conclusions. As with a motion to vacate or modify a judgment under Rule 60(b), this court will not disturb the Hastert court's conclusions of law but for manifest or plain error. See Russell v. Delco Remy Div. of Gen. Motors, 51 F.3d 746, 749 (7th Cir. 1995) (discussed supra in footnote 8). At the same time, however, this court will review de novo the Hastert court's conclusions of law where the decisional law has arguably changed.

 King proffers three "powerful reasons" warranting reexamination of the Hastert court's findings of fact and conclusions of law: first, the governing law has changed as a result of the Supreme Court's decisions in Shaw and Miller; second, certain factual findings made by the Hastert court were clearly erroneous; and third, the facts have changed since November 1991.

 III. The Hastert Court's Decision

 The 1990 decennial census report revealed that Illinois' population had grown by 4,084 people, or 0.0357%, between 1980 and 1990. Hastert, 777 F. Supp. at 637. Because the rate of Illinois' population growth was proportionally smaller than that of the United States as a whole, Illinois was only entitled to twenty seats in the United States House of Representatives rather than its previous twenty-two. The Illinois constitution required the General Assembly to reapportion the state's congressional districts to comport with the 1990 census results; however, it failed to do so. As a result of the General Assembly's abdication of its constitutional responsibility, five separate lawsuits were filed seeking a common declaration; namely, Illinois' then existing congressional districting plan was unconstitutional due to the population and demographic changes represented in the 1990 census report. Id.

 The Hastert court conducted a two day trial beginning on October 7, 1991. Due to time constraints imposed by the 1992 election filing deadlines, the court streamlined the proceedings "in a manner that would still enable the parties to present a complete record on the serious constitutional matters at issue." *fn20" Hastert, 777 F. Supp. at 639. To that end, the court "directed the parties to submit their evidence in the form of affidavits and depositions, supplemented by any maps and statistical data . . . ." Id. at 639-40. The court limited the parties to a single proposed plan and map at trial, and entertained argument mainly through post-trial briefs. Id. at 640.

 As a result of these streamlined proceedings, the parties resolved numerous issues through negotiation, concession, and stipulation. In so doing, the parties not only effectively supplanted the Hastert court's fact finding role in many instances but also narrowed the number of substantive legal issues the court needed to decide. The court explained:

The parties worked diligently during discovery and the two-day trial to resolve numerous areas of significant disagreement in their competing plans. The pretrial proceedings were marked by a succession of amendments to the principal redistricting proposals, with each of the new amended plans incrementally eliminating a complex area of potential conflict.

  Id. at 640. The magnitude of complex issues resolved by stipulation among the parties was unprecedented. *fn21" According to the Hastert court, not only did all of the parties agree throughout the proceedings that "the population and demographic changes within the City of Chicago from 1980 to 1990 mandated the creation of an Hispanic majority district," but they also reached an agreement prior to trial as to "the configuration of the proposed Hispanic majority district." Id. These pre-trial agreements between the parties had significant consequences on the conduct and outcome of the trial.

By reaching an agreement on the configuration of a proposed Hispanic district, the parties greatly simplified a perplexing issue Indeed, an agreement on this issue may be the crucial factor in facilitating the creation of an Hispanic district. The agreement on the proposed Hispanic district removed the Hispanic contingent among the Nieves plaintiffs as active participants at trial. *fn22"

 Id. (emphasis added).

 The Hastert court summarized the effect of the streamlined proceedings as follows:

As a consequence of the admirable efforts of counsel to come to an agreement on many issues, the trial focused primarily on the redistricting proposals of the Hastert and Rosebrook plaintiffs. We are left primarily with the task of determining which of the two proposed plans best meets the goals and criteria, both constitutional and non-constitutional, enumerated by the Supreme Court.

 Id. In short, the parties' pre-trial negotiations and agreements significantly narrowed the court's role. Essentially two tasks (relevant to this lawsuit) remained for the Hastert court: first, to analyze the revised Hastert and Rosebrook redistricting plans to determine which plan better satisfied constitutional standards; *fn23" and second, to determine whether Section 2 of the Voting Rights Act required the creation of an Hispanic majority-minority district.

 A. The Court's Constitutional Analysis

 The proposed Hastert and Rosebrook redistricting plans were substantially similar in purpose, design and configuration but differed in the final allocation of the electorate within the twenty congressional districts. *fn24" The Hastert court therefore set forth to determine which proposed plan better satisfied the governing constitutional requirements of population equality, fairness to minority voting rights (i.e., vote dilution), and political fairness.

 The court first assessed the two proposed plans under the one person, one vote theory of representation articulated in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964). The court ultimately concluded that the proposed Hastert plan, with a total deviation of 0.00017% from the ideal congressional district population of 571,530, better advanced the one person, one vote principle than the proposed Rosebrook plan, which had a total deviation of 0.00297%. Hastert, 777 F. Supp. at 644.

 The court next evaluated the proposed plans for their fairness to the voting rights of racial and language minorities. Hastert, 777 F. Supp. at 645. This inquiry required the court to assess whether either of the proposed redistricting plans had the discriminatory effect of diluting the power of minority votes. *fn25" The court found that neither proposal diluted minority voting power and ultimately concluded that the proposed Hastert plan better satisfied this constitutional criterion. *fn26"

  Finally, the court assessed the proposed plans for political fairness, meaning whether one or both of the proposed plans had the effect of discriminating against an identifiable political group. Hastert, 777 F. Supp. at 655, 656. Both plans sought to address the then existing discrepancy between Democratic and Republican congressional representation. *fn27" The Rosebrook plaintiffs argued, however, that the Hastert plan would result in a politically unfair redistribution of congressional seats. Id. at 656, 658. After an extensive analysis, the court rejected this contention, concluding that "the data suggests that the Hastert plan is likely to yield a distribution of seats across party lines that mirrors the statewide partisan makeup of the voting citizenry . . . ." Id. at 659. It further concluded that the Hastert plan was politically more fair. Id.

 B. The Court's Section 2 Voting Rights Act Analysis

 As previously established, all of the parties initially agreed that Section 2 of the Voting Rights Act "mandated" the creation of an Hispanic majority district and further agreed to the general configuration of such a district. As a result, the proposed configurations of the Hispanic district in the Hastert and Rosebrook plans were virtually identical: the district would link the two densely populated Hispanic communities on Chicago's near northwest and near southwest sides though a narrowly drawn, C-shaped connector that wound around the western edge of the Seventh Congressional District. *fn28" The Hastert court concluded that the proposed Hispanic district had an "extraordinary appearance" that was "not unlike a Rorschach blot turned on its side." *fn29" Hastert, 777 F. Supp. at 648 n.24. Even though all of the parties agreed to this extraordinary configuration, the court declined to "accept this conclusion without scrutiny." Id. at 648. It therefore undertook to determine whether Section 2 of the Voting Rights Act required the creation of an Hispanic majority district.

 A minority group seeking the creation of a majority-minority district under Section 2 must "make a threshold showing that it is: (1) sufficiently large and geographically compact to constitute a majority in a properly drawn district; (2) politically cohesive; and (3) that racial bloc voting typically frustrates the election of the minority group's preferred candidate." Hastert, 777 F. Supp. at 649 (citing Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766). The court determined that the Chicago/Cook County Hispanic community satisfied each of these threshold requirements.

 To support its conclusion that the Chicago/Cook County Hispanic community was politically cohesive, the court adopted the findings of cohesiveness made by two federal courts in the early 1980s in cases where the Hispanic community challenged discriminatory redistricting practices at the state and local levels. Hastert, 777 F. Supp. at 650 (citing Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert. denied 471 U.S. 1135, 105 S. Ct. 2673, 86 L. Ed. 2d 692 (1985) (Chicago aldermanic redistricting plan); Rybicki v. State Bd. of Elections, 574 F. Supp. 1082 (N.D. Ill. 1982) (three judge panel) (state legislative redistricting plan), supplemented 574 F. Supp. 1147 (N.D.Ill.), supplemented 574 F. Supp. 1161 (N.D. Ill. 1983)). The court further found that the voting bloc patterns of the Hispanic community also demonstrated its political cohesiveness. Id. More specifically, the court found that "single and bivariate regression analysis of voting patterns in Chicago precincts demonstrate significant ethnic bloc voting patterns." Id. Finally, the court ...

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