United States District Court, N.D. Illinois
March 30, 2004.
MICHAEL L. SHAKMAN and PAUL M. LURIE, Plaintiffs
DEMOCRATIC ORGANIZATION OF COOK COUNTY, et al., Defendants
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
The City of Chicago and its Mayor, Richard M. Daley, (collectively,
the "City") have filed a motion asking this Court to vacate the June 20,
1983 Consent Judgment agreed to by the parties and approved by the Court
on that date. The City's motion is made pursuant to Fed.R.Civ, P.
60(b)(4) and 60(b)(5). This motion was made in response to the Court's
ruling on September 27, 2001 that the City had violated the Consent
Judgment with respect to hiring temporary employees and in response to
the plaintiffs' request that the City be held in contempt for violating
the Consent Judgment.
In its motion the City contends that this Court actually lacked
jurisdiction to approve and enforce the Consent Judgment. The City cites
the case of Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987) in which the
Seventh Circuit held that the plaintiffs lacked standing to challenge the
hiring practices of the appellants. The plaintiffs respond with three
arguments, each of which, if accepted by the Court, would require denial
of the City's motion. They argue that; 1) the motion to vacate has been
filed too late and that the passage of 15 years after the Seventh
Circuit's ruling deprives this Court of the authority to vacate its 1983
Consent Judgment; 2) the City's agreement to adopt the
Consent Judgment prevents it from later attacking the validity of
the Consent Judgment; and 3) the Seventh Circuit's ruling and reasoning
in 1987 do not undermine the validity of the 1983 Consent Judgment. For
the reasons set forth below, we believe that the plaintiffs are correct
in all three of their arguments,
A brief history of the litigation is in order. The plaintiffs in this
action are Michael Shakman and Paul Lurie. Shakman was an unsuccessful
candidate in the November 1969 election for delegates to the 1970
Illinois Constitutional Convention. Lurie was a resident of the same
voting district and supported Shakman's candidacy. The plaintiffs claimed
that the patronage practices by elected officials and political parties
in Cook County infringed on: 1) Shakman's rights as a candidate to
associate with actual and potential supporters of his candidacy; 2) the
rights of both plaintiffs as voters to participate in the electoral
process free from substantial interference; 3) the rights of both
plaintiffs as taxpayers to be free from coerced political contributions to
the Democratic Party; and 4) the rights of patronage employees to speak,
vote and associate with independent candidates and other independent
The original complaint was dismissed in 1969 by Judge Marovitz who held
that the plaintiffs lacked "standing." Shakman v. Democratic Organization
of Cook County, 310 F. Supp. 1398 (N.D. Ill. 1969). In simple terms,
Judge Marovitz concluded that the relationship between the plaintiffs and
the challenged patronage practices was so tenuous that the Court had no
jurisdiction to consider their complaint. The plaintiffs appealed the
dismissal, and the Seventh Circuit, in a two to one opinion, reversed.
Shakman v, Democratic Organization of Cook County, 435 F.2d 267 (7th
Cir. 1970) ("Shakman I"). The Seventh Circuit held that the plaintiffs
had alleged sufficient injury to them to justify invoking the Court's
jurisdiction and that, therefore, the plaintiffs did have standing
to sue. The defendants' petition for certiori to the United States
Supreme Court was denied, 402 U.S. 909 (1971), so the case returned to
the District Court.
In 1972, some of the defendants agreed to a 1972 Consent Judgment
which, among other things, prohibited "conditioning, basing or knowingly
prejudicing or affecting any term or aspect of governmental employment,
with respect to one who is at the time already a governmental employee,
upon or because of any political reason or factor" and also prohibited
partisan political work during regular working hours of governmental
employment. The District Court specifically retained jurisdiction to
determine whether some public employees were exempt because they
performed policy making or confidential roles and whether
politically-based hiring decisions injured plaintiffs' legal rights.
After prolonged proceedings, Judge Bua issued a detailed, sweeping
opinion in which he enumerated the evils of the patronage system to the
plaintiffs, to government employees and to the general public and
systematically rejected all of the defenses to the suit asserted by the
City. Shakman v. Democratic Organization of Cook County, 481 F. Supp. 1315
(N.D. Ill. 1979). Judge Bua specifically found that the plaintiffs did
have standing and concluded that political hiring is unconstitutional.
The City first filed a Notice of Appeal of Judge Bua's decision, but on
June 7, 1983 agreed that its appeal should be dismissed with prejudice.
Instead of prosecuting its appeal, the City elected to enter into the
1983 Consent Judgment, the same Consent Judgment that the City now asks
this Court to vacate. The 1983 Consent Judgment specifically empowers the
Court to enforce the decisions reached by Judge Bua in his 1979 opinion,
including his assertion of jurisdiction over hiring practices and the
enforcement of the provisions of the 1972 Consent Decree. The City thus
became bound to the terms of both the 1972 and 1983 Consent Judgments,
and this Court's
jurisdiction to enforce those judgments was agreed to by the City.
It was based on this authority that this Court in 2001 held that the City
had violated the 1983 Consent Judgment and invited plaintiffs to suggest
sanctions for that violation.
Not all of the defendants, however, chose to agree to Consent
Judgments, so a portion of Judge Bua's 1979 decision did reach the
Seventh Circuit for decision. In Shakman v. Dunne, 829 F.2d 1387 (7th
Cir. 1987) ("Shakman II"), the Seventh Circuit reversed Judge Bua's
ruling as to the right of the appealing defendants to make hiring
decisions based on political considerations. It is this ruling that the
City now cites as the basis for vacating the 1983 Consent Judgment and
presumably setting aside this Court's recent ruling that the City's hiring
of temporary employees violated the 1983 Consent Judgment.
With this background in mind, we turn to the three reasons why
plaintiffs resist the City's motion.
1. Is the motion to vacate timely? We think that it is not. The City
certainly knew about Shakman II as soon as the opinion was issued. The
City was then operating under the constraints of the 1983 Consent
Judgment, so its attorneys surely immediately analyzed the impact of
Shakman II. The City failed to file this motion with the Court at that
time in 1987 and, indeed, failed to raise any of the issues presented in
its motion to vacate in the recent briefing on the issue of whether it
was complying with the Consent Judgment with respect to the hiring of
Federal Rule of Civil Procedure 60(b) requires that motions to vacate
final judgments be made "within a reasonable time." Although the Rule
itself sets no specific time limit, the Seventh Circuit in United States
v. Deutsch, 981 F.2d 299, 302 (7th Cir. 1992) and Kagan v. Caterpillar
Tractor Co., 795 F.2d 601, 710 (7th Cir. 1986), established guidelines
which must be met in order
for Rule 60(b) motions to be timely. A review of these cases reveals that
the City has met none of the time-related guidelines established by the
2. Does the City's agreement to the 1983 Consent Judgment prevent the
City from attacking the Judgment? Under the circumstances of this case,
the answer to that question is an affirmative. The City's 1983 request
that this Court enter the Consent Judgment, coupled with the dismissal of
its appeal, prevents the City from subsequently attacking the judgment.
The Supreme Court in Ackermann v. United States, 340 U.S. 193 (1950) and
the Seventh Circuit in Local 322, Allied Indus. Workers v. Johnson
Controls, Inc., 969 F.2d 290 (7th Cir. 1992), held that a party is not
entitled to relief under Rule 60(b) after making a deliberate decision
not to appeal a ruling of a lower court.
3. Did this Court have the jurisdiction to enter the 1983 Consent
Judgment? We conclude that this Court did have that authority.
The City argues that the decision in Shakman II completely undermined
this Court's authority to approve the 1983 Consent Judgment. In Shakman
II, the appellants argued to the Seventh Circuit that their patronage
hiring practices did not threaten the constitutionally protected rights
of the plaintiffs and that the plaintiffs, therefore, lacked "standing"
to challenge those practices before this Court in this lawsuit. If there
were no connection between the plaintiffs' rights and the practices of
the City, then there would be no "case and controversy" between the
parties. Because Article III of the United States Constitution empowers
federal courts to resolve only matters involving a "case and
controversy," then this Court would not have the authority to grant the
relief contained in the 1983 Consent Judgment, A person who does not have
an actual case and controversy with another does not have the "standing"
to sue that other person in federal court. The Seventh Circuit agreed,
In this case, we find the line of causation between
the appellants' activity and the appellees' asserted
injury to be particularly attenuated. . . . We do not
believe, therefore, that the plaintiffs can assert,
with the certainty required by the
case-and-controversy requirement, that the injury they
assert, is `fairly traceable' to the actions of the
defendants that form the basis of their complaint.
829 F.2d at 1397.
The Seventh Circuit went on to conclude that;
Because we have determined that the plaintiffs do
not have standing to assert the claim they bring to
this court . . . the judgment of the district court is
vacated and the case is remanded to the district
court. Those aspects of the complaint which challenge
the patronage hiring practice of the defendants are
829 F.2d at 1399.
This language from the Shakman II opinion indeed supports the City's
contention that this Court should now vacate the 1983 Consent Judgment.
We decline for several reasons in addition to the fact that the City
originally agreed to the Consent Judgment and has filed its motion more
than a decade late.
Unlike the subject matter on appeal in Shakman II, the 1983 Consent
Judgment covers far more than hiring practices. The 1983 Consent Judgment
explicitly included the obligations under the 1972 Consent Judgment which
prohibited political firing and also prohibited "conditioning, basing or
knowingly prejudicing or affecting any term or aspect of governmental
employment, with respect to one who is at the time already a governmental
employee, upon or because of any political reason or factor." To these
proscriptions, the 1983 Consent Judgment added the restrictions on hiring
as well as a variety of other provisions. The net effect was the creation
of a comprehensive plan designed to minimize partisan political influence
on employment decisions with respect to employees covered by the two
Consent Judgments, There is simply no doubt that there is a relationship
between the threatened rights of the plaintiffs and the overall
employment practices of
the City. The Seventh Circuit recognized this when it referred to
Shakman I as addressing the "combination of hiring and firing practices."
829 F.2d at 1393. It recognized, as we do today, that the use of partisan
political practices to hire, promote, assign and discharge workers, when
taken in combination, potentially create a cause-and-effect relationship
sufficient to invest standing in the plaintiffs.
The comprehensive nature of the 1983 Consent Judgment, particularly as
it incorporates the terms of the 1972 Consent Judgment, clearly
distinguishes the City's legal position from that of the appellants in
Shakman II. Indeed, the Court respects that this fact may be an
explanation for the City's failure to challenge the validity of the
Consent Judgment for all of these years. The City's attorneys have
understood this distinction and have probably advised against attempting
to vacate the Consent Judgment. That may well be what the Seventh Circuit
had in mind when it concluded in Shakman II that ". . . nothing in our
holding today can be construed as affecting the continued validity of the
Shakman decree." 829 F.2d at 1399. Had that Court meant to undermine the
validity of the Consent Judgment of which it was well aware, it would
have almost certainly have suggested that the parties review the Consent
Judgment in the light of Shakman II. Instead, the Seventh Circuit went
out of its way to do just the opposite.
This Court is conscious of the frustration that the City must feel
because of the long-standing restraint of the ongoing Consent Judgment.
If objective standards of performance can be established, perhaps a
tentative expiration date can be set. In the meantime, the Consent
Judgment certainly can be modified to reduce bureaucratic and legal
expense required to comply with it. Prior to any hearing in open court to
consider modifications to the Consent Judgment, the parties might wish to
exchange and discuss proposals to improve the Consent Judgment.
The parties must, however, remain mindful of the reasons that Judge Bua
ruled as he did over twenty years ago. A restoration of the patronage
system would quickly reduce freedom of political expression for
competitors of elected officials and for government employees. Working
conditions could swiftly deteriorate, injuring both government employees
and their families. The quality of City services could revert to
pre-Shakman standards, undermining the hard earned validity of the moniker
that "Chicago is the City that works."
An axiom of politics has long been that "it is not your enemies that
get you in trouble, it's your friends." Although it is not an explicit
objective of the plaintiffs, the Consent Judgment has provided elected
City officials with a much needed liberation from the influence of their
friends and from, perhaps, their own natural, and normally laudatory,
inclination to help them. It is for friends, not enemies or strangers,
that elected officials are tempted to cross legal and ethical lines. The
Shakman decree empowers this Court to maintain a shield between honest
elected officials and their friends. In doing so, all are protected.
For the foregoing reasons, we deny the motion of the City of Chicago
and Mayor Richard M. Daley to vacate the 1983 Consent Judgment (# 157-1).
This matter is set for status on April 22, 2004 at 8:45a.m. It is so
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