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June 10, 2004.

ED H. SMITH, et al., Plaintiffs,

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Twenty-three current or former aldermen of the City of Chicago have sued the City under the First and Fourteenth Amendments for unequal treatment in the payment of attorneys' fees and expenses in connection with litigation surrounding the 1992 remap of Chicago's ward boundaries.*fn1 This case was filed on February 14, 1994 and assigned to Judge Plunkett, who supervised discovery over a lengthy period before partially granting the City's motion for summary judgment on August 1, 2002. See Smith v. City of Chicago, No. 94 C 920, 2002 WL 1770532 (N.D. Ill. Aug. 1, 2002), amended in part, 2003 WL 57035 (N.D. Ill. Jan. 7, 2003). The case was then reassigned to this court on May 20, 2003 pursuant to 28 U.S.C. § 294(b). Following a bench trial on all remaining issues, the City moved for judgment as a matter of law on partial findings, and both parties seek judgment in their favor on all claims. For the reasons set forth here, the City's motion is denied and judgment is entered in favor of Plaintiffs. BACKGROUND

The facts of this matter as presented in Judge Plunkett's August 1, 2002 Memorandum Opinion and Order ("Order") were largely confirmed at trial. See Smith, 2002 WL 1770532, at *1-2. This opinion thus assumes the reader's familiarity with that decision.

  In 1991, the Chicago City Council was required by law to draw a new map of the city's ward boundaries in accordance with the 1990 Census. Smith, 2002 WL 1770532, at *1; Barnett v. Daley, 809 F. Supp. 1323, 1326 (N.D. Ill. 1992). The council members could not agree on a map, so two groups of aldermen submitted their competing proposals for a referendum vote by Chicago voters, pursuant to Illinois state election law. The first group consisted of 28 predominantly white aldermen who were generally sympathetic to Mayor Richard M. Daley's administration. These "Administration Aldermen" promoted a map with 24 majority white wards, 19 majority African-American wards, and 7 majority Latino wards. Id.; (Tr. 69, 156, 197-98; Uncontested Facts ¶ 8.) The second group consisted of the 23 predominantly African-American aldermen who were at that time often at odds with the mayoral administration and who are Plaintiffs in this case. These "Opposition Aldermen" supported a map with 21 or 22 majority white wards, 21 or 22 majority African-American wards, and 7 or 8 majority Latino wards. Id.; (Tr. 69; Uncontested Facts ¶ 9.) On March 17, 1992, City voters approved the map submitted by the Administration Aldermen (the "Referendum Map"). Id.

  A. The Remap Litigation

  Unhappy with this outcome, three groups responded by filing lawsuits. In Barnett v. Daley, No. 92 C 1683, nine African-American voters claimed the Referendum Map was unconstitutional and violated the Voting Rights Act, 42 U.S.C. § 1973. In Smith v. Daley, No. 92 C 2104 ("Smith I"), Plaintiffs in this case alleged a Voting Rights Act claim on behalf of all African-American residents of the City. Finally, in Bonilla v. City Council of the City of Chicago, No. 92 C 2666, six Latino voters sought changes to the map that would have created additional wards "alleged to have sufficient population to permit Latino residents in those wards to elect the candidates of their choice." (Uncontested Facts ¶¶ 11-13.) All of the City's aldermen were named as defendants in Barnett, but the court later dismissed them from the suit in December 1992. See Barnett v. Daley, 809 F. Supp. 1323 (N.D. Ill. 1992); (Uncontested Facts ¶ 14.) None of the aldermen was named as a defendant in Smith I or Bonilla, but the Administration Aldermen voluntarily intervened as defendants in both cases. They also voluntarily intervened as defendants in Barnett after being dismissed from that suit. Id. (Uncontested Facts ¶¶ 11-14; DX 15.) Ultimately, all three cases were assigned to Judge Brian Barnett Duff of this court, and Smith I was consolidated with Barnett. (Id. ¶ 15.) The Second Amended Complaint in Barnett, filed in 1993, did not name any aldermen as defendants, but they remained in the case voluntarily as defendant-intervenors. (Id. ¶ 31.)

  B. The Dispute Over Attorneys' Fees — Smith II

  The Administration Aldermen and Opposition Aldermen separately retained private counsel to represent them in the aforementioned legal proceedings. Smith, 2002 WL 1770532, at *1. The Administration Aldermen were represented by the law firms of Jenner & Block, Pope & John, and Donald Hubert & Associates. (Uncontested Facts ¶ 27.) At the direction of Alderman Edward M. Burke, Chairman of the Finance Committee of the City Council, the City paid the attorneys' fees of the Administration Aldermen both when they were named as defendants in Barnett, and after they voluntarily intervened as defendants in that case and in Smith I and Bonilla. (Id. ¶¶ 30, 32.) In total, the City paid more than $16 million in legal fees on behalf of the Administration Aldermen. Smith, 2002 WL 1770532, at *1; (Tr. 579; PX 88, at 45-46; Uncontested Facts ¶ 23.)

  The Opposition Aldermen were represented by Judson Miner of Miner, Barnhill & Galland (Uncontested Facts ¶ 28.) On February 12, 1993, Alderman Lawrence Bloom sent a letter to Alderman Burke on behalf of the Opposition Aldermen requesting reimbursement for attorneys' fees they incurred in connection with the Smith I litigation. (Id. ¶¶ 33, 34; PX 28.) Alderman Burke refused to pay those fees, stating in a February 16, 1993 letter that "there is no basis in the Municipal Code of the City of Chicago to . . . authorize the payment of legal fees for those persons [who sue the City]." (Id. ¶ 34; PX 29, Letter from Burke to Bloom of 2/16/93.) According to Alderman Burke,
Section 2-152-170 of the Municipal Code*fn2 authorizes the payment of legal fees for City officials when an action has been brought against them for activities performed in the course of their employment. This Section does not authorize the payment of legal fees for those persons bringing the action.
(PX 29.) A month later, Alderman Burke reiterated these sentiments in another letter to Bloom dated March 16, 1993: "I have not found any language in the Municipal Code to authorize the Committee on Finance to pay the fees of outside lawyers hired to sue the City of Chicago, its officials and employees." (PX 30, Letter from Burke to Bloom of 3/16/93.)

  Another alderman, Jesus Garcia, retained his own separate counsel, Matthew Piers of Gessler, Flynn, Fleischmann, Hughes & Socol, to represent his interests after being named as a defendant in Barnett. (Uncontested Facts ¶ 35.) Alderman Garcia, who by March 1993 was a state senator, took positions in the case that were different from any other party. (Id. ¶ 36; PX 17B.) Mr. Piers exchanged letters with Alderman Burke and Susan Lichtenstein, the City's Deputy Corporation Counsel, regarding Alderman Garcia's legal expenses, and on July 19, 1993, the City voluntarily paid some $74,479.20 in fees and costs Alderman Garcia incurred in connection with the Barnett case. (PX 17, Letter from Piers to Burke of 9/15/92; PX 17A, Letter from Piers to Burke of 1/28/93; PXB, Letter from Piers to Lichtenstein of 3/3/93; PX 18, Letter from Burke to Piers of 7/19/93.) Alderman Garcia claims, however, that the City refused to reimburse approximately $7,000 in additional expenses arising from his legal representation in that case. (Id. ¶¶ 37, 38.)

  Three additional aldermen, Dexter Watson, Madeline Haithcock, and Ricardo Munoz, all appointed in 1993 after the referendum vote, also asked Alderman Burke in March 1993 about the possibility of getting reimbursed for legal expenses if they decided to intervene in the redistricting litigation. Smith, 2002 WL 1770532, at *1; (PX 31.) By letter dated March 16, 1993, Alderman Burke informed Alderman Watson that § 2-152-170 of the Chicago Municipal Code "authorizes appointment of private counsel only to defend against an action brought against an official or employee." (Uncontested Facts ¶¶ 39-40; PX 32, Letter from Burke to Watson of 3/16/93.) Alderman Munoz testified that Alderman Burke told him during a brief conversation in the spring or summer of 1993 that the City would not pay his legal expenses if he chose to intervene in the litigation because he was "not part of the City Council when these [re-]maps were adopted." (Tr. 368-70.) Alderman Munoz sought leave to intervene as a plaintiff in the consolidated Smith I/Barnett cases in any event, enlisting the legal assistance of Mr. Piers. The court denied Alderman Munoz's request on December 22, 1994, and the City refused to pay his legal expenses. (Tr. 370-71; Uncontested Facts ¶ 42.)

  On February 14, 1994, the Opposition Aldermen filed the instant lawsuit (Smith II) alleging that the City violated their First and Fourteenth Amendment rights by failing to pay their legal fees and expenses incurred in connection with Barnett, Smith I, and Bonilla, while at the same time paying those same expenses on behalf of the Administration Aldermen. The Opposition Aldermen sought fees for Judson Miner and Matthew Piers, a declaration that the City's failure to pay those fees violated their First Amendment right to free speech and Fourteenth Amendment right to equal protection of the laws, and present and future injunctive relief. C. The Barnett, Smith I, and Bonilla Decisions

  While this action for fees was pending, the consolidated Voting Rights Act cases proceeded to trial before Judge Duff on February 28, 1996. Following a 48-day bench trial ending August 1, 1996, Judge Duff ruled in favor of Defendants on all claims in Barnett, Smith I, and Bonilla on June 9, 1997. See Barnett v. City of Chicago, 969 F. Supp. 1359 (N.D. Ill. 1997). On April 1, 1998, the Seventh Circuit affirmed the decision with respect to the Bonilla plaintiffs but vacated the decision with respect to the consolidated Barnett/Smith I plaintiffs. See Barnett v. City of Chicago, 141 F.3d 699 (7th Cir. 1998).*fn3 On remand, the case was reassigned to Judge Elaine Bucklo who, after a three-day retrial, found that the Referendum Map violated the Voting Rights Act. Barnett v. City of Chicago, 17 F. Supp.2d 753, 754 (N.D. Ill. 1998). After that ruling, the parties entered into a consent decree modifying the ward map. Id. at 759; Case No. 92 C 1683, Docket Nos. 747-53. The court awarded statutorily allowed attorneys' fees and costs to the plaintiffs (including the Opposition Aldermen) as "prevailing parties" under 42 U.S.C. § 1983. See Barnett v. City of Chicago, No. 92 C 1683, 1999 WL 138813 (N.D. Ill. Mar. 5, 1999); Barnett v. City of Chicago, 122 F. Supp.2d 915 (N.D. Ill. 2000), aff'd, 3 Fed.Appx. 546, 2001 WL 135842 (7th Cir. Feb. 16, 2001). All told, the "combined total of the fees, costs and awards to Plaintiffs' attorneys for the Opposition Aldermen in Smith I and to the Plaintiffs' attorneys in Barnett exceeds eight million dollars." (Uncontested Facts ¶ 51.) It is undisputed, however, that the court's award did not include an additional $246,354.07 in fees and costs incurred by the Opposition Aldermen, the amount at issue in this lawsuit. (Id. ¶¶ 20, 21.)

  D. The Smith II Decisions

  1. Motion for Summary Judgment

  On January 4, 2002, the City moved for summary judgment in the instant Smith II case arguing, among other things, that Plaintiffs lacked standing to pursue their claims and that they could not establish any equal protection violation. On August 1, 2002, Judge Plunkett granted the motion in part and denied it in part. The court held that Plaintiffs had no standing to pursue their claims to recover attorneys' fees owed to Judson Miner because he was representing them "on a purely contingent basis" and Plaintiffs offered no evidence that they remained liable to Mr. Miner for any outstanding fees. Smith, 2002 WL 1770532, at *5. There was no evidence of a similar contingency agreement between Mr. Piers and Alderman Garcia, however, nor any evidence that Mr. Piers had fully absolved Alderman Garcia of his obligation to pay the $7,000 in outstanding fees. Alderman Garcia thus had standing to pursue his claim for money owed. Id. As for Plaintiffs' standing to pursue injunctive and declaratory relief under the First Amendment, the court found no evidence, other than one alderman's speculation that the City's action "would make [her] think twice" about engaging in a redistricting battle in the future, that the City's refusal to pay attorneys' fees had any chilling effect on Plaintiffs' speech. Absent such evidence, the court stated, Plaintiffs did not have standing to pursue First Amendment claims for injunctive and declaratory relief. Id.

  On the other hand, Plaintiffs did have standing to pursue injunctive relief for the City's alleged racial discrimination and speech-based equal protection violations. Those claims both arose from the City's "refusal to pay Plaintiffs' legal fees pursuant to its ordinances [which] forced them to file this suit, a burden not shared by the aldermen whose redistricting views the City favored." Id. at *6. In the court's view, an injunction requiring the City to pay Plaintiffs' attorneys' fees in the remap cases would redress both (1) Plaintiffs' allegation that the City failed to "treat them equally under the ordinances that permit payment of aldermanic legal fees because of their political views and race"; and (2) Plaintiffs' allegation that the City "denied them equal protection because of their opposition to the referendum map." Id. (citing Heckler v. Mathews, 465 U.S. 728, 740 (1984)) ("when the right invoked is that of equal treatment, the appropriate remedy is a mandate of equal treatment"). Plaintiffs did not, however, have standing to seek an injunction barring future unequal treatment, or any declaratory relief for their equal protection claims. Id. at *6-7.

  Turning to the merits of Plaintiffs' equal protection claims, the court found that Plaintiffs demonstrated that they were an identifiable "class" because they all opposed the Referendum Map favored by the City and were all denied payment of their legal fees. Id. at *7. The City argued that Plaintiffs were not similarly situated to the Administration Aldermen because the ordinances governing payment of aldermanic legal fees only authorize reimbursement of attorneys' fees incurred by aldermen who are defending the City's interests, and not to those who are plaintiffs or "nominal" defendants. Id. In denying summary judgment on this issue, the court noted Plaintiffs' contrary evidence that the City twice paid the legal fees of certain other aldermen who had sued the City. Id. at *8. Specifically, during the administration of Mayor Harold Washington, a group of aldermen twice filed suit against the mayor over the validity of certain City Council procedures and resolutions. Id. See Roti v. Washington, 114 Ill. App.3d 958, 450 N.E.2d 465 (1st Dist. 1983) ("Roti I"); Roti v. Washington, 148 Ill. App.3d 1006, 500 N.E.2d 463 (1st Dist. 1986) ("Roti II"). The attorney representing the aldermen, William Harte, "submitted his bills to the finance committee and received payment for them from a line item in the budget ordinance attributed to the city council and its committees." Smith, 2002 WL 1770532, at *8. (See also Uncontested Facts ¶¶ 52-58.)

  The court next considered whether Plaintiffs had presented sufficient evidence of less favorable treatment based on their race or political views. On the issue of racial discrimination, Plaintiffs submitted an expert report from Dick W. Simpson, professor of political science at the University of Illinois at Chicago. Professor Simpson, who himself served as an alderman from 1971 to 1979 and who has published numerous articles and studies on the Chicago City Council, concluded that increasing minority representation in the Council would weaken Mayor Daley's control of the Council because "minority aldermen have a strong probability of joining and supporting the Independents or Opposition bloc." Id. at *9; Tr. 267-68, 272-73. The court found that conclusion too speculative in that it was based on certain suppositions that were neither inevitable nor even likely to occur. Id. The court therefore dismissed Plaintiff's race discrimination claims. Judge Plunkett was persuaded, however, that Plaintiffs' evidence that the City had paid the legal fees of the Roti I and Roti II plaintiffs supported an inference of bias against Plaintiffs because of their opposition to the Referendum Map. Id. at *10. The City argued that the Roti plaintiffs are not comparable to Plaintiffs in this case "given the difference in time, in City Council composition and in the desired goals of the respective litigations." Id. (quoting City of Chicago's Reply Brief to Supplemental Renewed Motion for Summary Judgment, at 10). The court disagreed: "plaintiffs here and those in the Roti cases are identical in the only respect that matters: they both sued the City." Id. at *11.

  The court also rejected the City's argument that unlike the Roti plaintiffs, who "sought declaratory judgments as to the validity of certain City Council resolutions and procedures," Plaintiffs in this case "were seeking judgments that members of the City Council engaged in intentional race discrimination when they voted for [the referendum map]." Id. According to the court, the City paid the Roti plaintiffs' fees because it found their claims less offensive than those asserted by plaintiffs in Barnett. That explanation — we only pay the legal fees of aldermen-plaintiffs if we deem the cause worthy — is virtually an admission that the City does not apply the fee payment ordinances in a content-neutral fashion.


  2. Motions for Reconsideration

  After receiving Judge Plunkett's decision, both parties moved for reconsideration. On January 7, 2003, the court granted both motions in part and denied them in part. See Smith v. City of Chicago, No. 94 C 920, 2003 WL 57035 (N.D. Ill. Jan. 7, 2003). The court upheld its finding that Plaintiffs had standing to pursue a speech-based equal protection claim even though they lacked standing to proceed on a claim brought directly under the First Amendment. Id. at *1. In doing so, the court rejected the City's argument that Plaintiffs could not seek injunctive relief absent some showing of a threat of future injury, a threat the court had found lacking in the original motion for summary judgment. Id. See also Smith, 2002 WL 1770532, at *6-7. The court recognized that all injunctions seek prospective relief, but distinguished Plaintiffs' claims as follows:
Plaintiffs' claim for an injunction barring the City from applying the fees ordinances in a discriminatory manner . . . seeks to prevent a future injury. Their claim for an injunction requiring the City to pay their lawyers' outstanding fees . . . seeks to redress an injury that has already occurred: their unequal treatment under the ordinances. Standing for the former injunction requires proof that the City is likely to apply the fees ordinances unequally in the future. Standing for the latter, like for an order of reinstatement, does not.
Id. at *1 (citing Dan B. Dobbs, DOBBS LAW OF REMEDIES § 2.9 at 225 (2d ed. 1993)) (comparing "preventive" and "reparative" injunctions).

  The court also rejected the City's claim that an order to pay Plaintiffs' lawyers is the "equivalent of a damage award, a form of relief outside the realm of equity." Id. at *2. Relying on Bowen v. Massachusetts, 487 U.S. 879 (1988), the court found that the requested injunction would not compensate Plaintiffs for their constitutional injury, but would "accord them the equal treatment to which they are entitled." Id. (citing Bowen, 487 U.S. at 895) ("[d]amages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies are not substitute remedies at all, but an attempt to give the plaintiff the very thing to which he was entitled") (internal quotation and citation omitted). The court did clarify, however, that Plaintiffs could only ...

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