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American Civil Liberties Union of Illinois v. City of Chicago

September 30, 2008

AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS ET AL. PLAINTIFFS,
v.
CITY OF CHICAGO ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

The defendants City of Chicago et al., (collectively the "City") have moved to dissolve the modified consent decree (the "MCD") entered into between the City and plaintiffs the American Civil Liberties Union (the "ACLU"), American Friends Service Committee ("AFSC"), and various other public interest groups and individuals (collectively the "ACLU plaintiffs"). For the reasons set forth below, the City's motion to dissolve the modified consent decree is denied.

I. BACKGROUND

In 1974 and 1975, two class actions, later consolidated into the instant case, were filed by the plaintiffs against the City of Chicago. The suits alleged that the Chicago Police Department ("CPD") Intelligence Division "Red Squad's" covert investigations of the plaintiffs' allegedly subversive activities*fn1 had violated the class members' First Amendment rights under 42 U.S.C. § 1983. In 1981, the parties agreed to a consent decree imposing detailed restrictions on the CPD's investigative activities; the decree was approved by the court in 1982.

In 2001, the Seventh Circuit held that the consent decree should be modified to remove "a dizzying array of highly specific restrictions on investigations of potential terrorists and other politically or ideologically motivated criminals," but leaving intact the core provisions forbidding "investigations intended to interfere with or deter the free expression that the First Amendment protects." Alliance to End Repression v. City of Chicago, 237 F.3d 799, 800 (7th Cir. 2001). Upon remand from the Seventh Circuit, the MCD was entered by Judge Williams on March 23, 2001.

Specifically, the MCD: (1) enjoined the City from "investigating, prosecuting, disrupting, interfering with, or harassing any person for the purpose of punishing or retaliating against that person for engaging in conduct protected by the First Amendment, or for the purpose of preventing them from engaging in such conduct"; (2) required all current and future employees to be served with a copy of the MCD; (3) required the Superintendent of Police to conduct a departmental audit of the CPD's compliance with the MCD during the ensuing five years, the results of which were to be communicated to the Mayor, the Police Board, and the court; (4) directed the Police Board to review the Superintendent's audit annually and report to the Mayor, the Superintendent of Police, and the public concerning its findings; and (5) also required an audit of the City's compliance with the terms of the MCD to be performed by a national independent public accounting firm within five years of the MCD's entry. The MCD also added the threats of civil and criminal contempt to the usual sanctions for infringing civil rights and non-compliance with the decree. Id. Presently before the court is the City's motion to dissolve the MCD.

II. ANALYSIS

"Decrees that vest federal district judges with supervisory powers over organs of state or local government are extraordinary, and the goal should be to wind them up as fast as possible rather than to perpetuate them indefinitely.." U.S. v. City of Chicago,870 F.2d 1256, 1259 (7th Cir. 1989). In deciding whether to dissolve a consent decree, a district court must take into account the specific terms of the decree when deciding whether to terminate it. Dyer v. City of Chicago, No. 83 C 5376, 1997 WL 308843, at *5 (N.D. Ill. June 3, 1997) (citing Heath v. DeCourcy, 992 F.2d 630, 633 (6th Cir. 1993)). Specifically, when looking to dissolve a consent decree, the court should look to: (1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree's underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree's enforcement. Dyer, 1997 WL 308843, at *5 (citing Heath, 992 F.2d at 632).

As an initial matter, the City has stipulated that an order dissolving the consent decree will not deprive the court of jurisdiction to hear the petitions for enforcement of the MCD that are pending before the court. Alternatively, the City represents to the court that it will not object to an order of dissolution that includes a specific reservation of jurisdiction to adjudicate pending petitions to enforce the MCD. The court finds that even if it were to dissolve the MCD, it will implicitly and explicitly retain jurisdiction to hear the pending petitions to enforce the MCD. Federal courts have inherent power to enforce an injunction via contempt proceedings, even if that injunction has ended the lawsuit. Shapo v. Engle, 463 F.3d 641, 644 (7th Cir. 2006). Moreover, the U.S. Supreme Court has noted that when a lower court reserves its power to enforce a settlement, "a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist." Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 378-82 (1996); see also Lucille v. City of Chicago, 31 F.3d 546, 548 (7th Cir. 1994). The court finds, therefore, that an order dissolving the MCD, but reserving jurisdiction to hear those pending petitions to enforce the MCD, would not deprive the ACLU plaintiffs of possible relief.

The City contends that it has fully complied with the terms of the MCD and that the court's supervisory role should therefore be terminated. Specifically, the City quotes the "quasi-sunset" provision of the MCD, which states that "[u]pon completion of the independent audit called for in this order, and its submission to the court, the court will consider whether further modification or dissolution of this decree is warranted at that time." Def.'s Mot. to Dissolve, Ex. A at 6. The City points to the report submitted by the accounting firm of Deloitte & Touche LLP (the "Deloitte report"), that it claims fully addresses the MCD's requirement of an independent audit. The Deloitte report comprises a single page of conclusory statements establishing that Deloitte has "examined [the City] management's assertion. that the City of Chicago complied with the April 24 Agreed Order, Judgment and Decree as amended by the March 2, 2001 Consent Decree.." Def.'s Mem. in Supp. of Mot. to Dissolve Ex. B. Accompanying the Deloitte report are four pages of conclusory "management assertions" made by the City management and signed by the Superintendent of Police, the President of the Chicago Police Board, and Corporation Counsel for the City. The Deloitte report states that the examination "was conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants and, accordingly, included examining, on a test basis, evidence about the City of Chicago's compliance with those requirements and performing such other procedures as we considered necessary in the circumstances." Id. The Deloitte report concludes that, with the exception of one instance of material noncompliance: "[T]he City of Chicago complied with the aforementioned requirements [of the MCD] during the period from January 1, 2001 to December 31, 2005, in all material respects." Id. The material noncompliance in question related to the City's failure to provide a copy of the MCD to existing or new non-CPD employees. The City argues that because the independent audit, as well as the annual CPD internal audits, have been satisfactorily completed and submitted to the court, the time for dissolution is ripe.

Furthermore, the City claims that because the unconstitutional activities that were the subject of the MCD have long since ceased, the MCD has effectively fulfilled its purpose and should be dissolved. The City points to, inter alia, People Who Care v. Rockford Board of Education, 246 F.3d 1073, 1076 (7th Cir. 2001), in support of their contention that once a decree has achieved its immediate aims it should properly be dissolved. The City also argues that, for purposes of comity, district courts should promptly relinquish oversight of local governmental functions as soon as the offending behavior ceases.

The ACLU, however, contends that the City has not yet met any of the terms of the MCD and thus the City's motion for dissolution is premature.*fn2 The ACLU points to the AFSC's petition to enforce the MCD that is pending before the court, alleging that the City violated the MCD by publicly disclosing that the AFSC was the subject of a 2002 police investigation, and further alleges that there was an attempt by the CPD to intentionally destroy documents which the City was required to maintain pursuant to the MCD. Moreover, the petition further alleges that the document destruction prevented the adequate performance of the external audit required by the MCD. In short, the ACLU's petition alleges that the City attempted to cover up (via depriving auditors of necessary documents) a cover-up (via document destruction) of an unconstitutional investigation of the AFSC. The ACLU points to the fact that the court has previously denied the City's motion to dismiss the AFSC's petition to enforce the MCD, finding that if these allegations are proven, then a violation of the MCD occurred.

Moreover, the ACLU contests the adequacy of the Deloitte report as an independent audit. The ACLU points to the fact that the report comprises but a single page, backed by four pages of the City management's assertions related to the City's compliance with the MCD. According to the ACLU, full discovery must be conducted with respect to the Deloitte report of the City's compliance for the prescribed five-year period. The ACLU further contends the Deloitte report supplied to the court does not rise to the level of full disclosure of methodology and data underlying the conclusions required for the court to adequately review the MCD. The ACLU submits no authority concerning the requisite scope of the materials that are required to be submitted to the court, other than an affidavit from Kerry Miller ("Miller"), an attorney cooperating with the ACLU. Pl.'s Resp. in Opp'n Ex. F. Miller avers that the statement of conclusions supplied to the court does not provide any basis for an interested party to actually evaluate the City's assertions or Deloitte's conclusions or methodology. Id. ¶ 6. The ACLU has no basis, at this point, to dispute the accuracy of the Deloitte report's conclusions; rather, it seeks full discovery of Deloitte's work papers to verify the accuracy of the audit.

Finally, the ACLU argues that the City has failed to comply with another of the basic criteria of the MCD: the requirement that all current and newly-hired City employees be issued a copy of the MCD. This failure was cited in the Deloitte report as being the sole instance of material noncompliance ...


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