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March 30, 2004.


The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


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 Page 2 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 voters.

  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 Page 3 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 Page 4 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 temporary workers.

  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 Page 5 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 Seventh Circuit.

  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 ...

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