United States v. City of Chicago, 73 C 2080

• Decision Date: 02 February 1976
• Docket Number: 75 C 79.,70 C 2220,73 C 1252,No. 73 C 2080,73 C 2080
• Citation: 411 F. Supp. 218
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF CHICAGO et al., Defendants. Renault ROBINSON et al., Plaintiffs, v. James B. CONLISK, Jr., et al., Defendants. Tadeo Robert CAMACHO et al., Plaintiffs, v. James B. CONLISK, Jr., et al., Defendants. Renault ROBINSON et al., Plaintiffs, v. William E. SIMON et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

411 F. Supp. 218

UNITED STATES of America, Plaintiff, v. CITY OF CHICAGO et al., Defendants.

Renault ROBINSON et al., Plaintiffs, v. James B. CONLISK, Jr., et al., Defendants.

Tadeo Robert CAMACHO et al., Plaintiffs, v. James B. CONLISK, Jr., et al., Defendants.

Renault ROBINSON et al., Plaintiffs, v. William E. SIMON et al., Defendants.

Nos. 73 C 2080, 70 C 2220, 73 C 1252, 75 C 79.

United States District Court, N. D. Illinois, E. D.

January 5, 1976.

Supplemental Memorandum and Final Decree February 2, 1976.

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Philip B. Kurland, Norman J. Barry, Donald E. Egan, Alan L. Unikel, Rothschild, Barry & Myers, Chicago, Ill., for Louis Arado, John Minogue, James O'Neill, Martin Barrett, Richard Pekarek, William Kasniak, Thomas Reilly, Erwin O'Bartuch, Joseph McManus, Michael Chido, intervenor-defendants.

Richard Gutman, Mary L. Sfasciotti, Chicago, Ill., for Carolyn Burauer, Barbara Chiczewski, Sharon Doherty, Bonita Drefs, Frances Jamen, Hattie Knazze, Shirley Stapleton, and Pamela West, intervenor-plaintiffs.

Frank Cicero, Jr., Thomas A. Gottschalk, John P. Wilson, Jr., Gary M. Elden, Kirkland & Ellis, Chicago, Ill., James M. Johnstone, Kirkland, Ellis & Rowe, Washington, D. C., for Renault Robinson, and others.

Donald Pailen, Francis A. Cronin, Elaine C. Afable, Dept. of Justice, Washington, D. C., Ilana Diamond Rovner, Asst. U. S. Atty., Chicago, Ill., for the Government.

William R. Quinlan, Acting Corp. Counsel, Richard J. Phelan, Earl L. Neal, Sp. Counsel, Daniel R. Pascale, Ann Acker, Asst. Corp. Counsel, Jerome A. Siegan, Roseann Oliver, Asst. Corp. Counsel, Chicago, Ill., for the City of Chicago, and others.

Michael L. Meyer, Barry S. Alberts, Schiff, Hardin & Waite, William J. McNally, Judith Bernstein, Chicago, Ill., for Camacho, and others.

Medard Narko, Lloyd M. Sonenthal, Chicago, Ill., for intervenor-defendants Roy Isakson, Fred Sansone, Robert Buckner, Larry Payne, Martin Leal, George Flood, and others.

Perry L. Fuller, E. Michael Kelly, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, James J. Ahern, Chicago, Ill., for intervenor-defendants Nicholas J. McNamara, John Meade, Thomas W. Toolis, John Hagemann, Richard Kraft, James Moore, Michael J. Connolly, Edward Wodnicki, John F. Kelly, August J. Annerino, Thomas P. McGady, Austin J. Kennedy, Howard A. Knight, Ronald R. Rubin, Paul S. Jankowski, Robert W. Goldsmith, William J. Collins, Nestor W. Chakonas.

MEMORANDUM DECISION

MARSHALL, District Judge.

The defendants in these complex, consolidated civil rights cases, which involve sexual and racial discrimination in the Police Department of the City of Chicago, are now pursuing their fifth¹ interlocutory appeal to the Court of Appeals for this circuit. We understand that the appeal has been fully briefed and is set for oral argument on January 6. In these circumstances considerations of policy (but not jurisdiction²) could suggest that we stay our hand in deciding the merits of the cases until the Court of Appeals has spoken. This is so because while the legal issue on appeal is a narrow one, the propriety of our November 13, 1975 refusal to vacate an earlier order preliminarily enjoining current payments of so-called revenue sharing moneys to the City,³ the factual issues in the cases are so inextricably interwoven with the legal issues—including that of the revenue sharing cut-off—that guidance beyond that narrow, albeit important, question might be forthcoming from the Court of Appeals. We have concluded, however, that we should not defer our decision on the merits of certain of the issues in the cases.

When the revenue sharing injunction was first entered against the Secretary of the Treasury and others by the District Court for the District of Columbia, the City appealed to the Court of Appeals for this circuit from our refusal to issue a countermanding injunction. It also sought review of the Secretary's decision to comply with the District of Columbia injunction. After the Court of Appeals observed in an unpublished memorandum order that the appeal should have been taken to the Court of Appeals for the District of Columbia,⁴ the City dismissed the appeal and its petition for review.

The revenue sharing case was then transferred here on the City's motion under 28 U.S.C. § 1404(a). Upon its arrival, the City requested that we modify or vacate the injunction. After an evidentiary hearing, we adopted the injunction, approved it and refused to vacate or modify it.⁵ The City did not appeal that order. Now, truly at the eleventh hour, it has appealed from the denial of an identical motion.

Furthermore, as we noted in denying the City's most recent revenue sharing motion, we have already once postponed this decision on the merits awaiting the results of another narrow interlocutory appeal taken by the Arado intervening defendants who deemed themselves aggrieved by our refusal to enjoin the Police Department's temporary sergeants program which was unilaterally announced by the Department while the cases were in trial on the merits. The briefs in that appeal, while purporting to speak only to the question of our refusal to enjoin the temporary sergeants program, launched a full scale attack on our preliminary injunction findings of fact⁶ and then proceeded to argue evidence adduced at the trial on the merits which we had not yet passed upon. Thus, we waited for the Court of Appeals to rule. When it did, it did not get drawn into the thicket of facts. It limited its unpublished memorandum order of affirmance to the matter of the temporary sergeant appointments pointedly observing that "nothing stated herein is intended to have any bearing whatsoever on any issue on the merits now pending before the district court."⁷

Within days of that affirmance, the City was back with its renewed request for interlocutory relief in respect to revenue sharing. When that request was denied, the pending appeal followed.

In light of this record, and in view of the numbers of parties to this action who are represented by separate able counsel, we have concluded that the numbers of potential interlocutory appeals are limited only by the ingenuity of counsel. Indeed, the next may be triggered by the Department's new method of selecting patrol officers which the parties, the public and the court have awaited since April, 1974.

Additionally, we understand that the City has taken the position in the pending appeal that separate interlocutory relief is warranted because we have unduly delayed our decision on the merits. That argument, having been addressed to the Court of Appeals, is not for us to decide. Suffice it here to observe that the delay has been occasioned in part by the overall history of the case, in part by the size of the task confronting us,⁸ in part by our previously noted deference to an earlier interlocutory appeal, and in part by our view expressed in November 1974 that "It is far better in cases of this nature that the remedy come from the parties rather than the court."⁹ That view was, in reality, a hope which had been spawned by the City defendants' repeated representations that a new, non-discriminatory, unisex method of selecting patrol officers was in the offing. First made at a pretrial conference held April 10, 1974, the representation was repeated in testimony given by witnesses called by the City defendants during the preliminary injunction hearings held in June of that year (the estimate was then the fall of 1974), urged as a ground for mootness as far as allegations of sex discrimination were concerned, raised again during the hearings relating to revenue sharing in January 1975, again during the trial on the merits held in March-June, 1975, and periodically since then through in camera disclosures to the court and counsel, the last of which occurred on October 31, 1975. Still the results of the new method of selection have not been made known.

The delay in the new method of selecting patrol officers has not been our only frustration with respect to a remedy coming from the parties. There was also the arrogant, contumacious refusal by the City defendants to honor their interim hiring agreement and our order approving it of December 16, 1974. When, in the spring of 1975, we were urged by the plaintiffs to proceed against the City defendants for their wilful refusal to abide the terms of that order (which would have recognized the aspirations of at least 500 of the men holding places on the 1971 patrolman's eligibility list), we were importuned by the defendants to stay our hand until the results of the new unisex methods for selecting patrol officers were known. Unwisely, in retrospect, we did just that.¹⁰

Thus, we have concluded that the time has come for the court to fashion a remedy.

Finally, there is the possibility that the Court of Appeals will find helpful, in its consideration of the issue before it, our findings and conclusions with respect to the merits of the case. Compare, Silverthorne v. Laird, 460 F.2d 1175 (5th Cir. 1972). This is particularly so in light of our conclusion that the City defendants have knowingly discriminated against women, blacks and Hispanics in the employment of police officers and that the most effective remedy to cure that constitutional malaise is the economic sanction of withholding revenue sharing funds until those defendants meet the affirmative requirements of a decree entered pursuant to this decision.

For these reasons, then, we proceed to a decision on the merits of all of the principal issues in the cases save racial discrimination in discipline and the essentially private claims raised by the plaintiffs in Robinson v. Conlisk, 70 C 2220, at all times cognizant of the superior position, wisdom and objectivity of the Court of Appeals. What follows will stand as our findings of fact and conclusions of law and reasons for our decision pursuant to Rules 52(...