Harper et al v. City of Chicago Heights et al

• Decision Date: 28 August 2000
• Docket Number: 99-2007,Nos. 98-2785,98-3075,00-1503,00-1515,98-2811,98-3004,99-2008,98-3051,98-2899,s. 98-2785
• Citation: 223 F.3d 593
• Parties: (7th Cir. 2000) Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy, Plaintiffs-Appellees, Cross-Appellants, v. City of Chicago Heights and the Chicago Heights Election Commission, Defendants-Appellants, Cross-Appellees, Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy, Plaintiffs-Appellees, Cross-Appellants, v. Chicago Heights Park District, Defendant-Appellant, Cross-Appellee, and David Orr, Cook County Clerk, Defendant-Appellee. <A HREF="#fr1-1" name="fn1-1">1
• Court: U.S. Court of Appeals — Seventh Circuit

Page 593

223 F.3d 593 (7th Cir. 2000)

Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy, Plaintiffs-Appellees, Cross-Appellants, v. City of Chicago Heights and the Chicago Heights Election Commission, Defendants-Appellants, Cross-Appellees, Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy, Plaintiffs-Appellees, Cross-Appellants, v. Chicago Heights Park District, Defendant-Appellant, Cross-Appellee, and David Orr, Cook County Clerk, Defendant-Appellee.

Nos. 98-2785, 98-2811, 98-2899, 98-3004, 98-3051, 98-3075, 99-2007, 99-2008, 00-1503, 00-1515¹

In the United States Court of Appeals For the Seventh Circuit

Argued April 6, 1999

Decided July 27, 2000

Rehearing and Rehearing En Banc Denied Aug. 28, 2000.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 87 C 5112 & 88 C 9800--David H. Coar, Judge. [Copyrighted Material Omitted] Before Kanne, Diane P. Wood, and Evans, Circuit Judges.

Diane P. Wood, Circuit Judge.

The wheels of justice have turned slowly in this voting rights case, which began more than a decade ago and continues to accrete new appeals almost by the month. The finding of a violation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. sec. 1971 et seq., has long since been established. Part of the case before us concerns the remedy for that violation. The district court issued an opinion on May 28, 1998, in which it ordered the implementation of a new election method that relies on cumulative voting. The rest of the many appeals consolidated with the case, up to and including those filed in the early spring of the year 2000, concern attorneys' fees. With respect to the remedy, we have reluctantly concluded that the district court moved too quickly in its understandable desire to put this case to rest. We therefore must reverse and remand. This in turn leads us to affirm in part and reverse in part the district court's grant of attorneys' fees and expenses.

I

The facts and procedural history of this case are set forth in detail in previous opinions. See Harper v. City of Chicago Heights, 824 F. Supp. 786 (N.D. Ill. 1993); Perkins v. City of Chicago Heights, 47 F.3d 212 (7th Cir. 1995); Harper v. City of Chicago Heights, 1997 WL 102543 (N.D. Ill. March 5, 1997). To summarize, in 1987 Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy ("the Class") filed a class action against the City of Chicago Heights ("the City"), alleging that the at-large election method used to elect representatives to the City Council diluted the voting strength of African-Americans in violation of Section 2. In 1988, the Class filed an almost identical suit against the Chicago Heights Park District ("the Park District") aimed at changing the at-large election method used to select the Park District Board. (Although the Chicago Heights Election Commission and the Clerk of Cook County were also named as nominal defendants, these cases have been defended by the City and the Park District.) The district court ultimately consolidated the claims and certified the Class.

The Class wanted the court to order the replacement of the at-large voting systems with single-member districts and to award it attorneys' fees and costs. In February 1989, all parties moved for summary judgment. District Judge Nordberg denied the defendants' motion and granted in part and denied in part the Class's motion. He held that the Class had proven the three "Gingles" factors, see Thornburg v. Gingles, 478 U.S. 30 (1986), that are threshold requirements to a Section 2 vote dilution claim.² See Harper, 824 F. Supp. at 792-93. However, he concluded that genuine issues of material fact remained with regard to the second step to proving a vote dilution claim, the so-called "Senate Report Factors," see S. Rep. No. 417, 97th Cong., 2d Sess. 2, 28-29 (1982).³ The cases were then reassigned to District Judge Will for trial.

Judge Will conducted pretrial mediation, and a consent decree resulted. The decree abandoned the at-large election method and created a new system of government for both the City and the Park District. The new plan called for six single- member districts for the election of six City Council members and six park board commissioners, with a mayor and a park board president elected at large. Three of the districts would be majority white, two would be majority African- American, and one would have a majority population of African-American and Hispanic residents of voting age. The consent decree plan was based on the "strong mayor" form of government authorized by the Illinois Municipal Code, and it replaced a "commission" form of government. (The Code allows Illinois cities to select among several acceptable forms of government. The "aldermanic" form is the basic form, see 65 ILCS 5/3.1, but cities may expand upon the aldermanic form by adopting the "commission," see 65 ILCS 5/4 et seq., "managerial," see 65 ILCS 5/5 et seq., or "strong mayor," see 65 ILCS 5/6 et seq., forms. Cities may normally adopt, alter, or repeal a form of government only through a referendum. Ill. Const. art. VII, sec. 6(f).)

In a development that would later prove problematic, the consent decree plan departed from the statutory "strong mayor" form in several respects. First, instead of five wards with two aldermen each, the decree called for six wards with one alderman each. Moreover, the mayor was authorized to appoint a city clerk and treasurer (persons usually elected at large), as well as administrative assistants and a budget and finance director (positions usually reserved for cities larger than Chicago Heights). The consent decree plan also modified the statutorily defined form of government for Illinois Park Districts. See 70 ILCS 1205/1-1 et seq. Rather than five commissioners elected at large, the decree called for six commissioners, one to be elected from each ward.

Judge Will approved the consent decree over the objections of Kevin Perkins and Robert McCoy ("the Individual Plaintiffs"), who had by this time split from their fellow class representatives. Perkins and McCoy thus appealed from the order entering the consent decree (with Harper, Elliott, the City, the Park District, and certain nominal defendants listed as appellees). See Perkins, 47 F.3d 212. This court found merit in their challenge and held that the district court should not have approved a consent decree that overrides state law without making "properly supported findings that such a remedy is necessary to rectify a violation of federal law." Id. at 216 (emphasis removed). Absent a finding of a violation of federal law, a municipality may modify a statutorily prescribed form of government only through a referendum. We vacated the entire decree and remanded for further proceedings.

By the time the decision in Perkins was handed down (February 7, 1995), the City's 1995 general election was approaching. Judge Will ordered that the election should take place as scheduled, but in recognition of this court's concerns, he also directed that the consent decree should be submitted for voter approval through a referendum. At the same time, he noted that the Park District had passed a resolution adopting the new form of governance specified in the decree and thus that no further action was necessary legally to establish the new Park District structure. On November 7, 1995, Chicago Heights held a referendum and the voters approved the new form of city government--which was modeled on and identical to the form adopted in the earlier consent decree. Judge Will passed away shortly thereafter, and these cases, still on remand to the district court, were reassigned to District Judge Coar.

Following this court's instructions on remand, Judge Coar first reiterated that the old, at- large election method violated Section 2, and he made particularized findings to support this determination. See Harper, 1997 WL 102543, at *12. He noted that Judge Nordberg had found the Gingles factors satisfied; he then considered evidence and found that the Senate Report Factors also pointed to a Section 2 violation. Importantly, neither the City nor the Park District have challenged this finding of liability in the present appeal. Next, Judge Coar considered the appropriateness of the remedy adopted first in the consent decree and later through referendum. (We refer in this opinion to the remedy Judge Coar evaluated for the City as the "referendum system," and to the remedy applicable to the Park District as the "resolution system," to reflect the fact that the systems under which both entities had operated at the outset of this litigation had been replaced by remedial measures.) Expressing concern that the referendum system preserved rather than remedied the effects of the former unlawful at-large laws, he ordered the parties to "propose new governmental structures and voting maps designed to remedy the underlying Voting Rights Act violations." Judge Coar allowed the City, the Park District, and the Class to rely on the referendum system for their proposals.

As requested, the parties submitted their proposals. The City, the Park District, and the Class reaffirmed their support for the referendum system, disagreeing only on where the lines dividing the six districts should be drawn. Perkins and McCoy objected to the solution adopted by consent and later by referendum, arguing that the six-member structure negates the power of the minority representatives because (1) in practice tie votes have frequently resulted, with the mayor (who is still elected at large) usually breaking the tie by voting with the white aldermen; and (2) the mayor may exercise veto power, which can be overridden only by a 3/5 majority of the council (i.e. four of the six aldermen). According to Perkins and McCoy, "the mayor now acts as a seventh alderman--indeed, a super alderman, who has the power to appoint two important City positions and who is...