Shakman v. Democratic Organization of Cook County

• Decision Date: 09 April 1976
• Docket Number: No. 75-1666,75-1666
• Citation: 533 F.2d 344
• Parties: Michael L. SHAKMAN et al., Plaintiffs and Petitioners-Appellees, v. DEMOCRATIC ORGANIZATION OF COOK COUNTY et al., Defendants, and City of Chicago and Michael Cardilli, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 344

533 F.2d 344

Michael L. SHAKMAN et al., Plaintiffs and Petitioners-Appellees, v. DEMOCRATIC ORGANIZATION OF COOK COUNTY et al., Defendants and City of Chicago and Michael Cardilli, Respondents-Appellants.

No. 75-1666.

United States Court of Appeals Seventh Circuit.

Argued Jan. 5, 1976.

Decided April 9, 1976.

William R. Quinlan, Corp. Counsel, Richard F. Friedman, Asst. Corp. Counsel, Chicago, Ill., for respondents-appellants.

C. Richard Johnson, Roger R. Fross, Robert Plotkin, Chicago, Ill., for appellees.

Before CASTLE, Senior Circuit Judge, and CUMMINGS and SPRECHER, Circuit Judges.

CASTLE, Senior Circuit Judge.

Respondents appeal from the district court's determination of civil contempt entered against each of them for violating the injunctive provisions of the court's judgment of May 5, 1972, generally prohibiting certain various Illinois political organizations, governmental units, and their officers, agents and employees from compelling or coercing any governmental employee to take part in any political activity as a condition of employment. Plaintiffs-petitioners are representatives of a class composed of the voters of the counties comprising the Northern District of Illinois. Respondents are the City of Chicago, a defendant in the original action, and Michael Cardilli, who at the time of the violations held the position of Director of Administration of the Department of Streets and Sanitation of the City of Chicago.

I.

This appeal is the outgrowth of a class action first instituted by plaintiffs in 1970 and aimed at the political patronage employment systems and practices alleged to prevail in the counties which comprise the Northern District of Illinois. ¹

After this court reversed the district court's dismissal of the plaintiffs' original complaint (Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970)), various defendants including respondent City of Chicago, agreed to the entry of a judgment in settlement of a part of the case. After a class action hearing, the district court entered judgment on May 5, 1972. The judgment provides that public employees, once hired, are not to be subjected to political requirements in connection with their jobs. ² The injunctive provisions of the judgment prohibit those bound by the decree from permitting political activity to be undertaken on public time and also enjoins "conditioning, basing, or affecting any term or aspect of governmental employment on any political purpose." ³ The judgment is binding upon various defendants, including the respondent City, who consented to its entry. The judgment also provides that, among others, it is binding upon "the present and future officers, members, agents, servants, employees and attorneys of each of the defendants." ⁴

Pursuant to paragraph H of the judgment, ⁵ plaintiffs filed a petition for a rule to show cause why Edward Quigley and James Simpson should not be held in civil contempt of court for violating subsections 1 and 2 of paragraph E of the judgment. This petition was subsequently supplemented to add the City of Chicago and Michael Cardilli. The petition was based on the affidavit of United States Congressman Ralph Metcalfe. In the affidavit, Representative Metcalfe swore to the following facts. As the Democratic party committeeman of the Third Ward of Chicago, Representative Metcalfe "sponsored" many persons for employment with various governmental agencies of the City and County headed or controlled by members of the Democratic party. In early December of 1974, Representative Metcalfe announced that he would neither endorse nor organize the circulation of petitions for any candidate for the office of Mayor of the City of Chicago in the upcoming primary election. He was later advised that on December 18 and 19, 1974, numerous individuals associated with the Democratic organization of the Third Ward and employed by agencies of the City or County were summoned by their superiors to report to them during working hours. In particular, Edward Quigley, Deputy Commissioner of Sewers for the Bureau of the City met with his employees and requested that they circulate petitions of candidacy for Mayor Richard J. Daley. Also, James Simpson, Assistant General Superintendent of the Bureau of Streets and Sanitation of the City reportedly met with numerous of his employees and requested that they circulate such petitions. Representative Metcalfe also stated in his affidavit that many members of the Third Ward Democratic Organization told him that they did not want to circulate the petitions but felt that they would be terminated or otherwise discriminated against if they refused.

Upon deposing Simpson, plaintiffs learned that respondent Cardilli had interviewed many employees of his department during working hours and requested them to circulate similar petitions. Plaintiffs thereupon supplemented their original petition and added Cardilli as a respondent. In addition, plaintiffs added the City of Chicago as a respondent on the ground that as a defendant in the original action and employer of the three individuals named in the petition for a rule to show cause, it should be held responsible for their actions. Thereafter plaintiffs dropped Simpson from their petition. Respondents' motion to dismiss the petition was denied and a hearing was subsequently held.

At the hearing, George Jones testified that he and four other co-workers in the Streets and Sanitation Department reported to Simpson's office during working hours on December 19, 1974 after being summoned the previous day. Each of the five had been "sponsored" by Representative Metcalfe. He testified that they were taken in one at a time to see Cardilli. Cardilli's administrative assistant was also present. Jones testified that Cardilli asked him if he would take and circulate petitions of candidacy for Mayor Daley. After being asked twice, Jones responded "Why? What would happen if I don't?" Cardilli then repeated "Are you going to take them?" Jones thereupon did.

Respondents City and Cardilli stipulated that Jones' testimony was true as relating to the events concerning not only himself but also of his four co-workers. It was also stipulated that the official petitions of candidacy for Mayor Daley had been filed with the Board of Election Commissioners prior to 8:20 a. m. on December 18, 1974 and thus before these employees were asked to circulate them.

At the conclusion of the evidence, the court discharged Quigley and found the City and Cardilli in civil contempt of court. The court found that since Mayor Daley's petitions of candidacy were filed prior to the time the five workers were summoned to report to Cardilli, the purpose of calling the employees to City Hall and urging them to take the petitions "was to determine whether they would support Mayor Daley's candidacy and/or to coerce and intimidate them by making clear that their departmental superiors, who controlled their jobs, expected them to support Mayor Daley's candidacy." Thus the court found the City and Cardilli in violation of paragraph E of the 1972 judgment.

The court asked plaintiffs to submit a bill of costs and suggest whatever further sanctions they believed necessary. The court awarded costs and attorney fees to plaintiffs ⁶ but denied their suggestion that the court pursue criminal contempt proceedings against respondents.

II.

Respondents raise various arguments on appeal in support of their contention that the district court erred in holding each of them in contempt.

A.

Their first argument is grounded upon the distinction between civil and criminal contempt. Respondents maintain that they were found in civil contempt for conduct which could only be found contemptuous after a criminal proceeding.

Respondents argue that "past performance of an affirmative act violating a prohibitory order of the court" constitutes criminal contempt and therefore it was erroneous for the district court to find Cardilli's actions on December 18 and 19, 1974 in civil contempt of court. Respondents thus advance a standard in which the nature of the contemptuous act is determinative of whether a contemnor has committed civil or criminal contempt.

Respondents' proffered distinguishing test is erroneous and attempts to oversimplify a most difficult problem. The distinction between civil and criminal contempt cannot turn on the nature of the act, since as the Supreme Court has pointed out, "(c)ommon sense would recognize that conduct can amount to both civil and criminal contempt." United States v. United Mine Workers, 330 U.S. 258, 298-99, 67 S.Ct. 677, 698, 91 L.Ed. 884, 915 (1947). And as the Court stated over a half century ago, "(c)ontempts are neither wholly civil nor altogether criminal. And 'it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both.' " Gompers v. Bucks Stove and Range Company, 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911), quoting Bessette v. W. B. Conkey Company, 194 U.S. 324, 329, 24 S.Ct. 665, 667, 48 L.Ed. 997, 1002 (1904). See also Backo v. Carpenters' Local 281, 308 F.Supp. 172, 175 (N.D.N.Y.1969), aff'd, 438 F.2d 176 (2d Cir. 1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971).

The "real distinction between criminal and civil contempt is the nature of the relief asked and the purpose of that relief." 3 C. Wright, Federal Practice & Procedure § 704, at 159 (1969); see also In re Persico,491 F.2d 1156 (2d Cir. 1974), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974); Southern Railway Company v. Lanham, 403 F.2d 119, 124 (5th Cir. 1968); Comment, Right to Trial in Contempt Cases: A Critical View of the Sentence Aggregation Rules, 70 Nw.U.L.Rev. 533, 534 n.3 (1975). In Gompers v. Bucks Stove and Range Company, supra, the Court stated that distinction in the following terms:

If (the...