Derrickson v. City of Danville, Ill.

• Decision Date: 29 June 1988
• Docket Number: No. 87-2385,87-2385
• Citation: 845 F.2d 715
• Parties: Al DERRICKSON, et al., Plaintiffs, v. CITY OF DANVILLE, ILLINOIS, et al., Defendants-Appellees. Appeal of STATE OF ILLINOIS, Wilbur T. Scharlau, Jerome D. Brown, Raymond T. Randall, Ernie Cox, and Wendell W. Wright, Real Parties in Interest-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 715

845 F.2d 715

Al DERRICKSON, et al., Plaintiffs, v. CITY OF DANVILLE, ILLINOIS, et al., Defendants-Appellees Appeal of STATE OF ILLINOIS, Wilbur T. Scharlau, Jerome D Brown, Raymond T. Randall, Ernie Cox, and Wendell W. Wright, Real Parties in Interest-Appellees.

No. 87-2385.

United States Court of Appeals Seventh Circuit.

Argued Feb. 25, 1988.

Decided April 28, 1988.

As Amended June 29, 1988.

Craig H. DeArmond, State's Atty., James K. Borbely, Kurth, Wolgamot, Borbely, Danville, Ill., for plaintiffs.

Lawrence C. Dinardo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendants-appellees.

Before CUDAHY, FLAUM and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

This case began as a suit under the Voting Rights Act, 42 U.S.C. Secs. 1973-73bb-1, seeking an injunction against the at-large system used by the City of Danville, Illinois, to elect its municipal government. The City, its four elected Commissioners, and its corporate counsel (collectively the Commissioners) were among the defendants. Under the system then used in Danville, the Commissioners possessed both legislative and executive powers.

I

The plaintiffs and the Commissioners immediately began to negotiate and soon produced a draft consent decree providing for the election of a City Council from seven two-member districts, and a Mayor and Treasurer from the City at large. In this new system the Mayor would nominate, and the Council confirm or reject, the heads of the executive departments. The proposal was satisfactory to the plaintiffs. But it came at some cost to the Commissioners, who stood to lose their legislative offices and thereby their executive powers as well. They proposed to handle this with a clause that as finally revised provides:

For a period of three years from the date of the first general election held [under this decree], the current elected Commissioners shall continue in an [sic] office solely in an executive capacity as Administrators of the City Departments of Streets and Public Improvements, Accounts and Finance, Public Property, and Public Health and Safety. These Administrators shall not be members of the City Council and shall have no legislative responsibilities. These Department Heads may be removed for misfeasance or malfeasance of office. In order to remove a Department Head serving this three-year period, eight members of the Council must concur in the decision to remove him from office.

The plaintiffs were agreeable, but the Commissioners' proposed grant to themselves of tenure of office did not sit well with everyone in Danville.

The State's Attorney for Vermilion County, which comprises Danville, opened a criminal investigation, issuing subpoenaes for the Commissioners to appear before a grand jury. He expressed concern that the Commissioners' negotiation on behalf of the City for their own future jobs as individuals violated the state's conflict-of-interest law, Ill.Rev.Stat. ch. 24 Sec. 3-14-4(a), and provisions of the municipal code. This caused unease among the Commissioners, and the plaintiffs (who did not want the Commissioners spooked into abandoning the negotiations) asked the district judge to add the State's Attorney as a party and enjoin the investigation. The district judge did so pending a hearing on the propriety of the consent decree. The district court also enjoined the holding of the municipal elections, scheduled for February 24, 1987.

The district court held a hearing on the proposed decree on February 20 and 25, entertaining objections from many persons to its content (including the three-year terms and the possibility that the existing Commissioners would set their own salaries as Department Heads). At the conclusion of the hearing the court approved and entered the decree, finding that "the proposed decree is fair, adequate, and reasonable and that it does not violate state or federal law." The judge thought the grant of three years' tenure removed an obstacle to the decree: but for it, the Commissioners might have fought tooth and nail to protect their positions and might have succeeded in hanging onto them for more than three years (especially so if elections could not be held!), all the while frustrating the plaintiffs' demands for relief and running up huge legal bills on the City's tab. The self-interested acts of the Commissioners thus had both good and bad qualities, and the court believed that the good predominated. On approving the decree the court dissolved the injunction against the State's Attorney. No one appealed from the order approving the decree.

The State's Attorney then presented his case to the grand jury, which returned an eight-count indictment against the Commissioners and corporate counsel. Their worst fears realized, the Commissioners returned to the district court, filing a motion in the Voting Rights Act case requesting the court to "effectuate" its judgment. On July 28, 1987, Judge Mills granted a preliminary injunction against the state prosecution, and on August 27 Judge Baker, who had approved the consent decree, converted it into a permanent injunction, adopting the opinion of Judge Mills without rereading the proceedings of February. (Judge Baker remarked: "I don't know what the record says verbatim in the proceedings of February 25th, and that record will speak for itself.")

Judge Mills, in the opinion adopted by Judge Baker, concluded that Judge Baker's statement that the decree is consistent with state law resolved the question the State's Attorney had raised in the criminal case, and that an injunction is both necessary to protect the court's decree and authorized--despite Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)--by the relitigation exception to the Anti-Injunction Act, 28 U.S.C. Sec. 2283. (The opinion may depend on the suppressed assumption that anything not forbidden by the Anti-Injunction Act is authorized, an assumption the City questions but which, for reasons developed below, we do not reach.) Judge Mills also relied on Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 2328, 81 L.Ed.2d 186 (1983), for the proposition that Younger requires abstention only to the extent the state proceedings gets underway before the federal case; here, Judge Mills pointed out, the federal case was over before the state case began. Because Judge Baker had resolved the central question in the state case, Judge Mills concluded, the State's Attorney could not relitigate the matter in the guise of a criminal proceeding. The State's Attorney appeals.

II

This case illustrates a potential problem of consent decrees: the divergence of interest between those who negotiate the decree and the people they represent. See Geoffrey P. Miller, Some Agency Problems in Settlement, 16 J. Legal Studies 189 (1987). Today's agents may be tempted to do by "consent" what federal law does not require or state law permit. See, e.g., Douglas Laycock, Consent Decrees Without Consent: The Rights of Nonconsenting Third Parties, 1987 U.Chi.Legal Forum 103; Michael W. McConnell, Why Hold Elections? Using Consent Decrees to Insulate Policies from Political Change, id. at 295; and other articles in that symposium issue. Officeholders may try to bind their successors to policies that they could not otherwise protect beyond their tenures. See Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1014-15 (7th Cir.1984) (en banc). Here officeholders have prolonged their tenures directly. The Commissioners were to stand for reelection on February 24, 1987, and could have been turned out; instead they signed and the court approved a decree ensuring their status as Department Heads until mid-1990.

If the State's Attorney had been a stranger to the consent decree, there would have been no obstacle to the criminal prosecution. He wields the authority of the State of Illinois, and the City of Danville may not contract away the prosecutorial power of the State. We held in Dunn v. Carey, 808 F.2d 555 (7th Cir.1986), that a consent decree is fundamentally a contract and therefore does not bind a governmental body to any greater degree than a contract.

Because a consent decree's force comes from agreement rather than positive law, the decree depends on the parties' authority to give assent. A party who settles a dispute but lacks such authority may withdraw the assent, we concluded in Morgan [v. South Bend Community School Corp., 797 F.2d 471, 477-78 (7th Cir.1986).] Third parties, not even colorably bound by the decree, also should be able to challenge the authority of the person assenting to the decree. [Citations omitted.] Some rules of law are designed to limit the authority of public officeholders, to make them return to other branches of government or to the voters for permission to engage in certain acts. They may chafe at these restraints and seek to evade them; if they do, the people for whose protection the restraints were created are entitled to repair to the forums designed to hear arguments that officeholders have acted without authority.

Id. at 559-60. See also Kasper v. Board of Election Commissioners, 814 F.2d 332, 341-42 (7th Cir.1987) ("A consent decree is not a method by which state agencies may liberate themselves from the statutes enacted by the legislature that created them. The Commissioners are agents, not principals; they need their principals' approval to alter the terms of the agency."); National Revenue Corp. v. Violet, 807 F.2d 285 (1st Cir.1986). We concluded in Dunn that taxpayers aggrieved by a decree committing the government to spend money may seek in state court an injunction against the expenditure, even though success in this quest could frustrate implementation of the federal decree. The State's Attorney does not want a state court to forbid compliance with the decree; he simply wants to apply the penalties that (the grand jury believes) attach to unauthorized...