Gautreaux v. City of Chicago

• Decision Date: 18 May 1973
• Docket Number: No. 72-1409,72-1410,72-1485 and 72-1486.,72-1409
• Citation: 480 F.2d 210
• Parties: Dorothy GAUTREAUX et al., Plaintiffs-Appellees, v. CITY OF CHICAGO and Richard J. Daley, Defendants-Appellants, v. Fred B. ROTI et al., Members of the City Council of the City of Chicago, Defendants-Appellants, v. Edward R. VRDOLYAK, Defendant-Appellant, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

480 F.2d 210 (1973)

Dorothy GAUTREAUX et al., Plaintiffs-Appellees, v. CITY OF CHICAGO and Richard J. Daley, Defendants-Appellants, v. Fred B. ROTI et al., Members of the City Council of the City of Chicago, Defendants-Appellants, v. Edward R. VRDOLYAK, Defendant-Appellant, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellant.

Nos. 72-1409, 72-1410, 72-1485 and 72-1486.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 1973.

Decided May 18, 1973.

Patrick W. O'Brien, Edward T. Joyce, Richard L. Curry, Corp. Counsel, William R. Quinlan, James R. Thompson, U. S. Atty., William T. Huyck, Chicago, Ill., for defendants-appellants.

Alexander Polikoff, Alex Elson, Chicago, Ill., for plaintiffs-appellees.

Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

This chapter in a long unfinished story deals with the power and propriety of the district court's implementation of prior judgments which were designed to alleviate racial discrimination in site selection and tenant assignment procedures in public housing, by restructuring the local decision-making process in order to bypass a discriminatory bottleneck in that process.

I

The facts of this case have been recited so often that a brief summary will suffice at this juncture. Black tenants in and applicants for public housing brought suit in 1966 against the Chicago Housing Authority (CHA) and others challenging the constitutionality of CHA's site selection policy. Preliminary motions by the defendants to dismiss and for summary judgment were disposed of in 1967. D.C., 265 F.Supp. 582. Plaintiffs' motion for summary judgment, on the other hand, was granted in 1969. D.C., 296 F.Supp. 907. That judgment was implemented later in the year by entry of an order which comprised a comprehensive plan for site selection. D.C., 304 F.Supp. 736. CHA submitted no sites for family dwelling units to the City Council of Chicago for approval and consequently the prior orders were further implemented in 1970 by a timetable and deadline order, which was affirmed by this court in Gautreaux v. Chicago Housing Authority, 436 F.2d 306 (7th Cir. 1970), cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661 (1971).

The same plaintiffs, simultaneously with the filing of the CHA complaint in 1966, also filed another complaint against the Secretary of the Department of Housing and Urban Development (HUD) seeking declaratory and injunctive relief. The district court dismissed all four counts of the complaint but this Court reversed that judgment as to two counts, holding that HUD had violated the due process clause of the Fifth Amendment by assisting in carrying on a racially discriminatory public housing system in the Chicago area and entitling the plaintiffs to summary judgment. Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971).

While the CHA and HUD cases were resulting in determinations that both agencies were guilty of unconstitutional racial discrimination in public housing site selection, HUD was approving annual money grants to the City of Chicago under the Model Cities Program established by the Domonstration Cities and Metropolitan Development Act of 1966 (42 U.S.C. § 3301 ff.). The first year grant of $38 million was paid by HUD to Chicago but in 1971 the district court enjoined HUD from paying any second-year Model Cities Program money unless and until at least 700 dwelling units in white areas had received City Council approval. D.C., 332 F.Supp. 366. This order was reversed and remanded by this court with one judge dissenting. Gautreaux v. Romney, 457 F.2d 124 (7th Cir. 1972).

On April 10, 1972, the district court found, among other things, that acquisition of sites by CHA is necessary to enable CHA to comply with the 1969 judgment order to increase the supply of dwelling units as rapidly as possible; that under state law (Ill.Rev.Stat. ch. 67½, § 9) CHA may not acquire sites without City Council approval; that there was no showing of any necessity or reason for the failure of the City Council to take any action since July 1, 1971 to approve any acquisitions of proposed sites, particularly in light of the evidence that many of the sites were suitable for the provision of dwelling units; and that such failure had had the effect of preventing CHA from complying with the 1969 judgment order and of preventing the Court from assuring that relief to which the plaintiffs were entitled was provided. The Court ordered that until further order the statute requiring City Council approval of CHA sites shall not be applicable to CHA's actions taken for the purpose of providing dwelling units and directed CHA to proceed with appropriate steps to provide the 1500 dwelling units that were the subject of the District Court's July 20, 1970 and subsequent orders. 342 F. Supp. 827.

Appeals were taken by the City, the Mayor, CHA and 39 of the 48 aldermanic defendants. Five of the nonappealing aldermanic defendants (Aldermen Cousins, Despres, Langford, Simpson and Singer) admitted all allegations of the supplemental complaint involved here, took the position in the court below that they "fully support the efforts being made by the plaintiffs" and unsuccessfully sought leave to file a brief on this appeal in support of the order entered below. Four others (Aldermen Hedlund, Hoellen, Lawlor and Simon) have likewise not appealed. In addition, Alderman Holman, who is one of the appellants, while dissatisfied with the provisions of the 1969 judgment order, said,

"I would say that the Court enter an order that whether we have City Council approval or not, that we proceed . . . . The prayer to by-pass the City Council is one for the Court\'s suggestion, and I do not quarrel with it . . . ."

HUD has not appealed. In its answer to the supplemental complaint HUD said:

"HUD suggests that the inclusion of the City of Chicago, Richard J. Daley, Mayor of the City of Chicago, and individual members of the City Council, as defendants herein, is appropriate to achieve just and equitable relief and urges this Court to enter such order or orders against the aforesaid defendants as this court deems just and equitable."

The City, Mayor and appellant aldermen have contended (1) that it was improper to join them as parties-defendants for purposes of relief inasmuch as they have not been found to have violated any of plaintiffs' rights nor have their objectives in the location of public housing been found to be unconstitutional; (2) that the City Council's authority to approve public housing sites does not deny plaintiffs any relief to which they are entitled; and (3) that both the order appealed from and the original 1969 judgment constitute abuses of discretion because of the hardships they introduce.

CHA has contended that the order is an abuse of discretion because it "promises to do nothing but add to CHA's already awesome burdens while contributing nothing to the complex problem of providing integrated public housing opportunities in the Chicago area."

II

"Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971).

It has long been conclusively established in this case (1) that "plaintiffs, as present and future users of the system, have the right under the Fourteenth Amendment to have sites selected for public housing projects without regard to the racial composition of either the surrounding neighborhood or of the projects themselves," 265 F.Supp. 582, 583; (2) that CHA had violated the Fourteenth Amendment by intentionally choosing sites for family public housing and adopting tenant assignment procedures for the purpose of maintaining existing patterns of residential separation of races, 296 F.Supp. 907, enforced by 304 F.Supp. 736, affirmed in 436 F.2d 306 (7th Cir. 1970), cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661 (1971); and (3) that HUD had violated the due process clause of the Fifth Amendment by its knowing acquiescence in CHA's discriminatory housing program. 448 F.2d 731 (7th Cir. 1971).

The rights and violations are firmly established and are far beyond appeal or dispute. What remains is the district court's task "to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution." Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 16, 91 S.Ct. at 1276. This has proved to be a Herculean task requiring both the wisdom of Solomon and the patience of Job. See Gautreaux v. Romney, 457 F.2d 124 (7th Cir. 1972) (court's opinion, 124-129, and dissent, 129-140).

As early as in his opinion of February 10, 1969, supporting an order of the same date, the district court found that:

"CHA follows an unvarying policy `based upon actual experience in submitting sites to the City Council for approval\' of informally clearing each site with the Alderman in whose Ward the site is located and eliminating each site opposed by an Alderman." 296 F.Supp. at 913.

The court further found (at 914):

"It is also true that there is no evidence that the Aldermen who vetoed White sites were necessarily motivated by racial animus when they followed a policy of keeping Negroes out of White neighborhoods. Most Aldermen apparently talked to their constituents and received unfavorable reactions before exercising their informal vetoes.

* * * * * *

"CHA finally contends that the impulse originating and sustaining the policy against choosing White sites came from the City Council. But by incorporating as an automatic step in its site selection procedure a practice which resulted in a racial veto before it performed its statutory function of formally presenting the sites to the City Council, CHA made those policies its own and deprived opponents of

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