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April 1, 2003


The opinion of the court was delivered by: James B. Moran, Senior Judge, United States District Court


The parties bring a total of fifteen pretrial motions seeking to bar evidence and restrict triable issues. For the following reasons, plaintiff's motion in limine number six is granted, and its remaining motions in limine are denied. Defendant's four motions are denied.

As a preliminary matter, many of the motions concern the City of Chicago's (the City) required showing of discrimination. We address this topic generally before turning to the individual motions. Under the Seventh Circuit's reading of City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the City can use gender and racial classifications in public contracting only if it has discriminated in the past either by directly discriminating against a class of people or in some way being complicit in private discrimination. Builders Association of Greater Chicago v. County of Cook, 256 F.3d 642 (7th Cir. 2001)(BAGC v. Cook). Put another way, the classifications cannot be justified merely as a remedy for societal discrimination. Id.

The parties spend much of their briefs arguing about the amount and types of evidence the City will need to prove in order to establish the requisite discrimination. The City relies on a Tenth Circuit opinion which allowed a city to meet its burden by offering enough "strong evidence" of discrimination in the local construction industry from which to infer the city's participation. Concrete Works of Colorado Inc. v. City and County of Denver, ___ F.3d ___, 2003 WL 294582, *37, The Seventh Circuit does not appear to read Croson as liberally. BAGC v. Cook, supra.

But, a different Issue is presented by the motions before us — whether evidence of private discrimination in the construction industry is admissible. We answer this question mindful that motions in limine which seek to exclude evidence should be granted only if the evidence sought to be barred is clearly inadmissible for any purpose. Aquino v. Automotive Service Industry Association, 93 F. Supp.2d 922, 923 (N.D.Ill. 2000). Evidence of industry discrimination alone will not satisfy the discrimination test articulated by the Seventh Circuit. It may be potentially relevant as circumstantial evidence of the City's alleged discrimination, though, enough to satisfy the minimal motion in limine standard, particularly in view of the unsettled law in this area. In reviewing these motions we are mindful that we are undoubtedly only a way-station in this litigation. If others will make the final decision, either the Seventh Circuit or beyond, we think it appropriate to reach considered factual determinations on a variety of issues based on the available evidence, even though we may ultimately conclude that those determinations are irrelevant to, or of marginal help in reaching, a decision on the constitutional issue. Accordingly, in this non-jury case, we are disposed to hearing the evidence without a rigorous analysis of its relevancy. That will, of course, tend to lengthen the trial, but it will, we believe, provide a more complete record both for this court and on appeal. BAGC's Motion No. 1

Builder's Association of Greater Chicago (BAGC or plaintiff) asks us to preclude the City from offering post-enactment and post-litigation evidence. The Seventh Circuit requires that a public agency have a strong evidentiary basis to support its chosen remedy before adopting the remedy. BAGC v. Cook, supra, at 645. Because of this, plaintiff claims that any post-enactment evidence is irrelevant.

We must first consider what is meant by "post-enactment" evidence, and the cases are often not particularly clear about what they mean by that. It could mean evidence arising from the pre-enactment period but not developed then and not considered by the legislative body. It could mean evidence relating to the post-enactment period. In either event, we think such evidence is relevant.

The City should have produced strong evidence that the program was remedial in nature, that a compelling interest existed, before embarking on the M/WBE program. See Shaw v. Hunt, 517 U.S. 899, 909-10 (1996). A failure to have done so would have permitted a successful attack immediately after enactment and a district court might have acted well within its discretion in refusing to allow the government an extended time to marshall its facts. See Associated Grand Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730 (6th Cir. 2000). A failure to have done so could also call into question whether the program was remedial or for another and improper purpose, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-494 (1989); see Schurr v. Resorts International Hotel, Inc., 196 F.d 486, 498 (3rd Cir. 1999).

The issue here, however, is not whether or not the City Council adequately did its homework in 1990, but whether the program was remedial in its inception and whether there is sufficient evidence in 2003 of a compelling need and of narrow tailoring so as to cause the program to pass constitutional muster. The City did not have to prove its justification in 1990, but it does have to show that it then had, based on the evidence, a legitimate remedial purpose. The City has demonstrated, since then, continuing support for that program. Plaintiff is not seeking damages for, say, loss of a contract in 1991. It seeks prospective relief. The focus, then, assuming that the City can establish that it enacted the program for a legitimate purpose in 1990, should necessarily be upon whether there is a compelling need for such a program in 2003, and whether it is now a narrowly-tailored remedy for discrimination. If the focus is more upon the present than the past, then the passage of time cannot defeat plaintiff's claim, as we previously ruled. And if the City is to go forward with its contention that a failure to have such a program makes it a passive participant in discrimination, it must present evidence that there were and are discriminatory practices in the construction industry.

With few exceptions, e.g., Rothe Development Corp. v. United States Department of Defense, 262 F.3d 1306 (Fed.Cir. 2001) (inadmissible to establish a strong basis but admissible for other purposes); West Texas Chapter of Associated Builders and Contractors, Inc. v. Board of Education of the Memphis City Schools, 64 F. Supp.2d 714 (W.D. Tenn. 1999), courts have permitted post-enactment evidence in both senses of the term, both to buttress the original determination and to demonstrate that there remains a compelling need which the program is narrowly tailored to address, e.g., Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 6 F.3d 990 (3rd Cir. 1993); Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513 (10th Civ. 1994); Engineering Contractors Association of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895 (11th Cir. 1997). So do we. We do not read BAGC v. Cook, supra, to the contrary, where Judge Grady permitted the introduction of such evidence and the Court of Appeals, while noting that the enactment had to be supported by a strong evidentiary basis (at p.645), did not reject that post-enactment evidence as inadmissible. Plaintiff's motion number one is denied. BAGC's Motion No. 2 and Defendant and Intervenors' Motion to Bar Relitigation

On October 4, 1996, we granted five contract associations permission to intervene and defend the City's ordinance. BAGC v. City of Chicago, 170 F.R.D. 435 (N.D.Ill. 1996). These associations, Black Contractors United, Hispanic American Construction Industry Association, Federation of Women Contractors, Association of Asian Construction Enterprises and Illinois Association of Minority Contractors (intervenors), also intervened in BAGC v. Cook, 123 F. Supp.2d 1087 (N.D.Ill. 2000), In defense of the county ordinance. BAGC argues that the intervenors' anecdotal evidence of racial, ethnic and gender bias against M/WBE's in the construction industry is barred by res judicata and collateral estoppel.*fn1 Defendant and intervenors also move to preclude relitigation of issues addressed in BAGC v. Cook, based on the doctrine of collateral estoppel.*fn2

Res judicata bars claims when there is an identity of the parties or their privies, an identity of the causes of action, and a final judgment on the merits. La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 907 (7th Civ. 1990). Collateral estoppel applies where the issue to be litigated is the same issue involved in a prior action, the issue was actually litigated in the prior action, determination of the issue was essential to final judgment in the prior action, and the party precluded from relitigation was represented in the prior action. Id. at 906.

In BAGC v. Cook, Judge Grady states:

The proof of lack of solicitation was provided by the minority and women contractors who testified that they had not been solicited to submit bids on private work although they had persistently requested to be considered for private work. There was also testimony that M/WBE assist organizations never received any information from general contractors about the private projects they were bidding on. Finally, the general contractor witnesses admitted that, for the most part, they made no effort to solicit M/WBEs for bids and did not send project information to M/WBE assist organizations.
We believe this evidence does establish a systemic lack of any effort on the part of non-M/WBE general contractors to solicit bids specifically from M/WBEs for subcontract work. But whether this results in a systemic lack of opportunity to bid is another matter. . . .
We conclude, therefore, that defendants have not established a systemic lack of opportunity for M/WBEs to bid on private contracts, the point to which their proof of failure to solicit was directed.
We turn to the second question, assuming there had been a showing of a systematic failure to solicit, and that this resulted in a systematic denial of the opportunity to bid, was the denial because of race, gender, or ethnicity?
. . . While the anecdotal evidence may be sufficient to make a case against the small number of general contractors the witnesses testified about, it stops there. It tells us nothing about bias on the part of any other general contractors and it does not establish a pervasive bias in the industry.
123 F. Supp.2d at 1113-1114.

In its motion, defendant asserts that the cited passages show factual findings adverse to BAGC regarding discrimination in the construction industry. It is inappropriate for BAGC to collaterally attack defendant's defense of the city ordinance, it argues, since the evidence has already been found to show discrimination. While Judge Grady did conclude that the evidence "establish[ed] a systemic lack of any effort on the part of non-M/WBE general contractors to solicit bids specifically from M/WBEs for subcontract work," and showed some hiring discrimination on the basis of race and gender, he ultimately found that on its own the testimony did not show a lack of opportunity to bid on contracts. Id. it is this conclusion, that the evidence was ultimately insufficient to establish pervasive discrimination, that was essential to the district court's final determination.

But does Judge Grady's finding that the testimony was insufficient to justify the county's ordinance bar us from considering that same evidence as justification for the city's ordinance? To determine if res judicata applies, we must look at the facts. In order to determine if a cause of action, or in this case a defense, is so closely related to a prior cause of action as to be arising from the same transaction. Anderson v. Chrysler Corp., 99 F.3d 846, 852 (7th Civ. 1996). There is no question that a portion of the factual predicate for the defense overlaps significantly with the facts on which the defense in BAGC v, Cook was based. But the testimony is now being offered ...

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