Opposition Brief — City Council of Chicago v. Ketchum

Office - Supreme Court, U.S.

\ FILED

No. 84-627 NOV 5: 1964

ALEXANDER L. STEVAS.

CLERK

In Tue

Supreme Court of the United States

Octoser Term, 1984

CITY COUNCIL OF THE CITY OF CHICAGO, ILLINOIS,

Petitioner,

Vv.

MARS KETCHUM, et al,

Respondents,

and

CHARMAINE VELASCO, et al,

Respondents,

and

POLITICAL ACTION CONFERENCE OF ILLINOIS, et al,

Respondents.

On Petition For A Writ Of Certiorari Ts The United

States Court Of Appeals For The Seveath Circuit

BRIEF OF THE CORPORATION COUNSEL OF

THE CITY OF CHICAGO ON BEEALF OF

THE CITY COUNCIL OF CHICAGO IN OPPOSITION

JAMES D. MONTGOMERY

Corporation Couns! of the

City of Chicago

610 City Hall, Chiago, IL 60602

(312) 744-7787

Midwest Law Printing Co. — Chicago 60611 — (312) 321-0220

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................. ii

STATEMENT OF THE CASE ............... 1

A. How the 1981 City Council Remap Diluted

the Voting Power of Black and Hispanic

SD canned) tap cha reeds vanes «00 1

B. Trial Ccurt’s Opinion and Remedial

GNIS: coh wad aamalbedate ta deus’ 0000 5

C. The Seventh Circuit Opinion ......... 8

REASONS FOR DENYING THE WRIT ..... 12

I,

PETITIONER LACKS CAPACITY UNDER

ILLINOIS LAW TO FILE ITS PETITION . 12

Il.

IN LIGHT OF THE TRIAL COURT'S PER-

VASIVE ERRORS, THE COURT OF AP-

PEALS HAD NO CHOICE BUT TO RE-

RR EMI Bb dc cb cb ccedeccdececs 15

A. The Trial Court’s Erroneous Interpreta-

tion of Section 2 Required Remand by the

GE OE, I ib st.ccetcivecscoendede. 15

B. The Instruction That the District Court

Consider the Appropriateness of Black

and Hispanic Majorities of Over 50%

Voting Age Population Is Sound ..... 19

NEE Keb cose cdopacecescsenesceccesce 25

‘i

TABLE OF AUTHORITIES

CASES: PAGE

Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982) ... 17

Buskey v. Oliver, 565 F.Supp. 1473 (M.D. Ala.

SD. ooo vscnccnccudnunb dase) onescueen 17, 18

Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.

1984), cert. den., 104 S.Ct. 1433 (1984) ..... 17

Hadley v. Bd. of Trustees of Firemen’s Pension,

447 N.E.2d 958 (Ill.App. 1983) ............. 14

Hotchkiss v. City of Calumet City, 377 Ill. 615, 37

f+ © 8: errr re re ee 14

Inwood Laboratories v. Ives Laboratories, ..... U.S.

a mt Se 8 RR rrr rr re 22

Kelly v. Southern Pacific Co., 419 U.S. 318 (1974) .. 16

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984) ... passim

Kirksey v. Bd. of Supervisors of Hinds County,

Mississippi, 554 F.2d 139 (5th Cir. 1977), cert.

denied, 434 U.S. 968 (1977) ..............- 18

Major v. Treen, 574 F.Supp. 325 (E.D.La. 1983) .. 17, 18

McIntosh Cty. NAACP v. City of Darien, 605 F.2d

a. 2 Ft ee Peeper ee. rere 16

Pullman-Standard v. Swint, ..... US. ....., 102 §.Ct.

SEE SBOE « seek wenieines WERen Redan 19

Rybicki v. State Board of Elections, 574 F.Supp.

pg i te | ee ere ee 17

United Jewish Organizations v. Carey, 430 U.S. 144

EUR wcscncteuns¥¥wesiaescausceseeusebiee 18

iii

United States v. General Motors, 384 U.S. 127

eRe a eco ists cbwenccbass 16

United States Postal Service v. Aikens, ..... US. sas

on ec cencccceseces 16

Wheeling Trust and Savings Bank v. City of

Highland Park, 97 Tll.App.3d 519, 423 N.E.2d

TD cueG skin ci vbasscees bess 14

STATUTES:

Section 2 of the bine Rights Act, 42 U.S.C.

ES SCS ISL REO passim

Ill.Rev.Stat. 1983, ch. 24, 421-11 .............. 13

Municipal Code of Chicago, Chapter 6, §6-2(a) .... 13

Municipal Code of Chicago, Chapter 6, §6-2(d) .... 13

OTHER AUTHORITIES:

Federal Rules of Civil Procedure 17(b) ........ 12

Federal Rules of Civil Procedure 52(a) ........ 16

S.Rep. No. 97-417, 97th Cong., 2d Sess. ...... 17

No. 84-627

In THE

Supreme Court of the Anited States

Octoser Term, 1984

CITY COUNCIL OF THE CITY OF CHICAGO, ILLINOIS,

Petitioner,

v.

MARS KETCHUM, et al,

Respondents,

and

CHARMAINE VELASCO, et al,

Respondents,

and

POLITICAL ACTION CONFERENCE OF ILLINOIS, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

onlin

BRIEF OF THE CORPORATION COUNSEL OF

THE CITY OF CHICAGO ON BEHALF OF

THE CITY COUNCIL OF CHICAGO IN OPPOSITION

This court should reject the petition for certiorari for

two reasons. First, neither Petitioner City Council of the

City of Chicago (“City Council’’) nor its counsel, the Cor-

poration Counsel of the City of Chicago has authorized

the filing of the petition. Second, the decision of the Court

of Appeals was entirely correct. Faced with a district

court decision that had adopted an indefensible interpreta-

tion of the Voting Rights Act and had made almost no

ascertainable findings on any issue of substance, the Court

of Appeals had no choice but to remand this case for con-

sideration of a full and effective remedy for the violations

that had occurred.

STATEMENT OF THE CASE

Petitioner’s Statement of the Case all but ignores the

trial record and the trial court’s oral opinion. Since the

trial record and the district court’s treatment of that

record are fundamental prerequisites to any analysis of

the Seventh Circuit’s opinion, they are briefly summarized

below.

A. How the 1981 City Council Remap Diluted the Voting

Power of Black and Hispanic Voters

The 1970’s witnessed a substantial shift in the demo-

graphic profile of the Chicago population. The white pop-

wiles

ulation dropped from 65.5% to 43.2%, while the black

and Hispanic populations grew from 32.7% to 39.8% and

from 7.3% to 14.0%, respectively. These populations show

an extreme degree of residential segregation. Over 92%

of Chicago’s 1,197,000 blacks reside in two geographically

cohesive and overwhelmingly black areas on the South and

West Sides of the City. Similarly, the Hispanic popula-

tion, over 250,000, resides in three geographically cohesive

communities.

Under the City’s 1970 ward map, blacks in 1970 were

in a majority in 15 wards, while Hispanics were not in

the majority in a single ward (PX 157). By 1980—under

the 1970 ward map—blacks had grown to hold majorities

in excess of 62.6% in 19 wards and a plurality of 49.38%

in an additional ward; and Hispanics held majorities in

four wards and pluralities in two.

In 1981, the City Council redrew the City’s 50 wards.

In a city that was 48% white, 40% black and 14% His-

panic, the City Council approved a map in November 1981

that gave whites voting age majorities in 28 wards (56%),

blacks voting age majorities in 17 wards (84%), and His-

panics voting age majorities in two wards (4%). Conse-

quently, whites, with only 3% more total population than

blacks, ended up with voting control in 28 wards, eleven

more than blacks.

To accomplish this massive dilution of minority voting

strength, the City Council manipulated ward boundaries

to reduce minority voting strength within specific wards,

and it “fractured” large and cohesive black and Hispanic

communities by placing many of their residents in neigh-

1 Citations. The trial transcript is cited “Tr. __ intiffs’ trial

exhibits, “PX ____”; . defendant's trial exit, « ten ae

petition ‘for writ of certiorari, “Cert. eee. appendix to

the petition for writ of certiorari, “App. ___..

Sm

boring wards where they would constitute a minority of

the population. Both techniques were employed in text-

book fashion.

First, specific ward boundaries were redrawn to reduce

black or Hispanic populations. For example, four wards

that had been majority-white in 1970 had turned majority-

black by 1980 (Wards 37, 15, 9 and 7), and a fifth ward

(Ward 18) had turned from majority-white to piurality-

black (PX 41; PX 187). The following chart shows how

the City Council responded to those changes:

Black Pop Black Pop. Race of

Black 1980 1980 Incumbent

Pop. Old New at Time of

37 12.5% 16.3% 36.8% White

15 8.3% 66.4% 41.7% White

18 28.3% 49.3% 46.4% White

7 26.9% 62.6% 58.4% Black

9 28.3% 90.1% 89.1% Black

(See PX 41; PX 1387; PX 142; Stip. 441.) Thus, each of

the three wards that had a white incumbent at the time

of redistricting was redrawn so that whites ended up with

a majority of the voting age population. The 7th Ward,

where the black population was approaching the pcint of

political power, was redrawn so as to substantially chip

away at the black majority. The only ward left unscathed

was the 9th Ward, which had grown so heavily black that

it would have been impossible to dissipate the 90% black

majority.

The 37th Ward provides a good example of how boun-

daries were manipulated. To achieve wards of equal pop»-

lation, the 37th Ward’s population had to be reduced by

16,886 persons (from 77,394 to 60,101). To accomplish that,

40,035 persons, of whom 38,513 (96.2%) were black, were

removed from the ward and 23,149 persons, of whom

19,676 (84.9%) were white, were added to the ward. As

ee

a consequence, a black majority ef 76.3% became a black

minority of 34.5% (PX 187, 1388) (See App. 17).

Second, “fracturing” of the black and Hispanic com-

munities was the rule rather than the exception.2 Two

examples (out of a massive number) will illustrate. Within

the South Side predominantly black community live

900,000 persons of whom approximately 820,000 are black

(PX 212; DX 70, 129A). This geographically cohesive black

community is bordered by Lake Michigan on the east and

a ring of seven wards to the south, west and north. More

than 110,000 blacks who reside in the outer perimeter of

this area were split off and placed in minority status in

the surrounding band of seven white-controlled wards.®

Similar fracturing occurred with Hispanics. Within the

Near Northwest Side Hispanic community live more than

130,000 Hispanics. This Hispanic population was splintered

among six wards which radiate outward from the heart

of the Hispanic community (PX 164-208).

There was no corresponding fracturing of the white com-

munity. The City Council’s map contained not a single

instance in which a sizable white population that could

have been included in a majority white ward was frac-

tured off and included in a majority black ward (PX 142,

199 and 205).

2 Defendants’ witnesses acknowledged this to be true. See, Ket-

—_ v. Byrne, 740 F.2d 1898, 1409, n.9 (7th Cir. 1984); App. 20,

n.9.

3 Since each ward required 60,191 residents, this number is suf-

ficient to fill two additional wards. Indeed, experts for both par-

ties testified that accepted redistricting procedures would have

Eistoad of 18, a0 the City Councils map produced (Ir. Saab

ins of 13, as ’s map . ;

<i

B. The Trial Court’s Opinion and Remedial Order

On December 21, 1982, Judge Thomas R. McMillen de-

cided this case in an oral opinion (App. 43-71) delivered

extemporaneously from the bench. The opinion contains

virtually no findings of fact, fails to review the evidence

in a cow yrehensive manner, and undertakes no analysis

of existing case law.

First, the trial court rejected plaintiffs’ Fourteenth

Amendment claim by asserting that the City Council had

had no intent to discriminate against blacks and Hispanics.

Instead, the court found that “the motivating reason for

the adoption of the 1980 redistricting map by the City

Council, in my opinion, was to preserve the incumbencies

of those members of the City Council who were voting

on the map” (App. 47).

Having disposed of plaintiffs’ Fourteenth Amendment

claim, the trial court turned to plaintiffs’ Voting Rights

Act claim. The court began by expressing doubt that the

Act even applied to redistricting or concerned the dilu-

tion of minority voting strength (App. 53).

The court continued that any violations of the Voting

Rights Act had to be shown to exist “over the City’s 50

wards in a totality” and not in specific areas of the City

(App. 56). The trial court based this conclusion on the

phrase “totality of circumstances” in Section 2(b) of the

Act, which it interpreted as follows (App. 54):

I think “totality of circumstances” is a very impor-

tant concept in this particular case because we are

not ing about individual wards or legislative dis-

tricts or Congressional districts. We are talking about

a city with 50 different wards in it. I think that is

the entity that must be examined.

Having adopted this analysis of Section 2, the trial court

declared that it construed Section 2 “as a test of overall

6

Pe ee

“i

fairness not only to the minorities and the plaintiffs but

also the population as a whole” and summarized the issue

as follows (App. 57):

[D]o they [the black and Hispanic plaintiffs] have a

reasonably fair opportunity to participate in the

voting and elective processes in the City of Chicago.

Having created this test, the court applied it by holding

that the City Council vote, “taken simply on its face

value,” was “fair to everyone living in the City of Chi-

cago”’ because “each alderman was voting for his consti-

tuency and had in mind the rights of his constituents, be

they black, Lithuanian, Chinese, or whites, and voted ac-

cordingly” (App. 57).

The court then held that because it was looking at the

case in the light of overall fairness to the persons in the

minority communities, plaintiffs’ evidence of fracturing and

manipulating specific ward boundaries was not releveut.

The court’s explanation for disregarding this evidence is

crucial to its treatment of the whole case, including its

earlier holding on intent. In essence, tHe court said that

when a city is becoming more heavily minority, manipu-

lating boundaries to cause fracturing and packing is both

inevitable and excusable. As to fracturing, the court ex-

plained (App. 58, emphasis added):

Fragmenting, of course, will occur in a city where

population has been moving and particularly where

roe wnd population has been moving and where it

but primarily when it is moving

from the center of the city to. the west and to the

north, those so-called “fingers” are going to be in

somebody else’s ward. As long as the person in

whose ward is voting on the plan you are going to

find minority groups in a ward. There are probably

more minority—should say, I can find that there are

more minority groups who are black in white major-

ity wards than there are white minorities in black

yf

majority wards. That is primarily for two reasons,

one, that the blacks were moving in a direction that

caused them to be somewhat dispersed along the

borders of their communities and, secondly, because

of the aldermen who represented those wards into

which the blacks were moving, and to some extent

the Hispanics were moving, wanted to preserve the

majority, whatever it might have been, which elected

them to office.

Thus, the court held that when an expanding black or His-

panic population begins moving into a white ward, the

white alderman, to save his incumbency, can properly vote

for a plan that will fracture those minority populations in

order to preserve the white majority that will protect his

incumbency. Indeed, according to the trial court. such frac-

turing is “really a step toward integration” (App. 59).

Finally, the court turned to the issue of retrogression.

Having expressed doubt that dilution of minority voting

strength is the concern of Section 2, and having held that

it was irrelevant to consider how specific ward boundary

changes affected minority communities in Chicago, the

trial court concluded that “as a matter of fairness” there

should be no citywide retrogression—that is, no reduction

of minority voting strength as it existed in the wards just

before the ward lines were redrawn. Since there had been

19 majority-black wards before redistricting but only 17

majority-black wards afterwards, the court ruled for the

black plaintiffs on this theory (Tr. 4106-4107; App. 62).

The trial judge also found that the voting rights of His-

panics had been violated (Tr. 4123; App. 71).

Having found for plaintiffs on the theory of citywide

retrogression, the trial court turned to the issue of

remedy and declared that “a black majority [must be

restored] to the 37th and 15th Wards . . . without chang-

ing the basic population mix of the adjacent wards” (App.

as

62). In restoring black majorities to these two wards, the

trial court decided that it would be sufficient to give

blacks a bare majority of voting-age population. In the

case of Hispanics, the court stated that the 31st, 32nd

and 26th Wards should be redrawn so that Hispanics

would constitute majorities of 52%, 54% and 55% of the

voting-age ,opulation, respectively (App. 65).

Two days later, the parties submitted revised ward

maps. At that time, plaintiffs moved for an evidentiary

hearing on the remedial issue. The trial court denied plain-

tiffs’ motion, declaring that the court was only interested

in seeing “if defendants can comply with my ruling” (Tr.

4128). And in fact, the map defendant submitted was not

in accordance with the district court’s decision. Its map

produced Hispanic voting-age majorities in the 26th and

32nd Wards of 50.0% and 38.8%, as opposed to 55% and

54% as the court instructed. At the same time, the His-

panic voting-age majority in the 3lst Ward was reduced

from 52.4% to 50.6% (DX 261). The map was approved

over the objections of the privat plaintiffs and the Justice

Department.*

C. The Seventh Circuit Opinion

The City Council did not appeal from the district court

decision. Plaintiffs, dissatisfied with the district court’s

as a hi factor ghed > qomget nh teem

ts 4 higher facior than the voting 41 and (the revised

neither “equitable” nor “fair’ ’ to the minority communities

-

remedy, did. On August 14, 1984, in an amended opinion,

the Court of Appeals affirmed in part, reversed in part,

and remanded for consideration of the appropriate rem-

edy, finding that the district court had misinterpreted

and misapplied Section 2, and that as a consequence, the

district court’s remedy “{did] not eliminate, in accordance

with well-accepted principles of redistricting, the illegal

dilution of minority voting strength accomplished by the

City Council map.” Ketchum v. Byrne, 740 F.2d 1398,

1412 (7th Cir. 1984) (App. 1).

The Court of Appeals began by rejecting the district

court’s overall theory of the Voting Rights Act. it pointed

out that “(the legislative history and subsequent judicial

interpretation of the 1982 amendments [to the Voting

Rights Act] clearly demonstrate that claims of vote dilu-

tion come within the scope of the Act . . . [and] that the

amendments are intended to apply to redistricting plans”

(citations omitted). 740 F.2d at 1404; App. 10.

Next, the Court of Appeals rejected the trial judge’s

theory that it could not look at what was done in in-

dividual wards. It wrote: :

In a case where lines are drawn to establish discrete

electoral units and to distribute racial and ethnic pop-

ulations among districts, the ways in which these

lines are drawn may become independent indicia of

discriminatory intent or result. [Cite omitted.]

740 F.2d at 1405; App. 13.

The Court of Appeals then discussed the importance of

the largely undisputed facts and rejected the trial court’s

assessment of those facts in virtually every respect. It

recognized that the manipulation of ward boundaries was

“strong evidence of intentional discrimination.” 740 F.2d

at 1407; App. 16. It expressly found that “the manipula-

. tion of racial voting populations” in this case violated Sec-

-

tion 2. 740 F.2d at 1407; App. 16. It also held, contrary

to the district court’s reasoning, that fracturing may dilute

minority voting strength and violate Section 2, and it

found that the fracturing of the Hispanic community,

which the trial court had believed legally irrelevant, had

unlawfully diluted Hispanic voting strength. 740 F.2d at

1409; App. 21. While the district court had viewed

“preserving incumbencies” by manipulating ward racial

makeups as legitimate, the Court of Appeals rejected that

theory, stating that “discrimination based on an ultimate

objective of keeping certain whites in office” is indis-

tinguishable from “discrimination born of pure racial

animus.” 740 F.2d at 1408; App. 19. Although the Court

of Appeals commented that it was unnecessary to make

a formal finding that “these considerable indications of

minority voting strength dilution through manipulation,

packing and fracturing” constituted intentional discrim-

ination under the Fourteenth Amendment, it found them

basic to a proper assessment of Section 2 of the Voting

Rights Act.

Having rejected the district court’s legal theories, the

Court of Appeals turned to the trial court’s treatment of

the remedy. Citing the legislative history of Section 2,

it began with the observation:

. . . the remedy fashioned must be commensurate

with the right that has been violated. . . . The cvart

should exercise its traditional equitable powers to

fashion the relief so that it completely remedies the

prior dilution of minority voting strength and fully

provides equal opportunity for minority citizens to

Peeeieaie and to elect candidates of their choice.

mphasis added.)

And it concluded that the trial court had failed to meet

this exacting standard:

.. . we find that the py ig map has not pro-

vided an adequate remedy for the Voting Rights Act

iin

violation because it does not eliminate, in accordance

= well-accepted principles of redistricting, the il-

dilution of minority voting strength accomp-

ik ed by the City Council map.

740 F.2d at 1412; App. 27.

The Court of Appeals remanded the case to the district

court with instructions to remedy the fracturing of the

Hispanic community (740 F.2d at 1418 n.25; App. 41 n.25);

to examine whether the fracturing of the black community

directly affected blacks’ opportunity to elect represen-

tatives of their choice, Jd.; and to give careful considera-

tion to whether the 50% bare voting-age majority stand-

ard used by the district court was an adequate remedy.

740 F.2d at 1414-1415; App. 32-33.

In giving this last instruction, the Court of Appeals

noted that the “district court rejected for most wards the

use of any majority greater than 50% of voting age pop-

ulation as a threshold for determining an effective ma-

jority of blacks or Hispanics.” 740 F.2d at 1411; App. 25.

For two reasons, the Court of Appeals directed the dis-

trict court to reconsider this question. First, the Court

of Appeals found that the trial court failed “to consider

carefully all of the factors which are present here .. .

and which have led other courts to employ such a cor-

rective (frequently 65% of the total population or 60%

voting age population or some variation of these guide-

lines). . . .” 740 F.2d at 1413; App. 29. Second, the dis-

trict court’s approach failed to recognize that in cer-

tain wards, such as the 15th and the 37th, minority groups

had achieved majorities of more than 65% of the popula-

tion prior to redistricting. Thus, in those wards, the

reconstruction of “supermajorities” should be viewed not

as an artificial supplement to a 50% majority but as a

fair antidote to the retrogression that had resulted from

the manipulation of racial voting populations. 740 F.2d at

1417; App. 37.

a.

Having identified the errors in the trial court’s analysis,

the Court of Appeals remanded the case for determina-

tion of an effective remedy for the City Council’s viola-

tions of the Voting Rights Act. In so doing, the Court

declined to state what the new ward boundaries should

be or precisely what racial percentages should be set. It

left these matters to the district court on remand. As the

Court of Appeals explained:

It is not . . . the proper role of this court to for-

mulate its own redistricting plan or to dictate to a

district court minute details of how such a plan

should be devised.

740 F.2d at 1412; App. 24. See also, 740 F.2d at 1415;

App. 33.

REASONS FOR DENYING THE WRIT

This petition should be denied because the petitioner

has no capacity under Illinois law to appeal from the

Court of Appeals’ decision. The petition should also be

denied because the Court of Appeals’ decision was right.

Faced with a district court decision that had misconstrued

the Voting Rights Act and that had reached a decision

that lacks everi the most basic findings of fact, the Court

of Appeals had no choice but to remand this case for fur-

ther proceedings.

I.

PETITIONER LACKS CAPACITY

UNDER ILLINOIS LAW TO FILE ITS PETITION

Under F.R.Civ.P. 17(b), the capacity of the petitioner

to sue is governed by Illinois law. Under Illinois law, the

present petitioner has no legal capacity to file this appeal.

- =

While the appeal of this case was pending in the Court

of Appeals, mayoral and aldermanic elections were held

in Chicago in April 1983. The previous mayor, Jane M.

Byrne, was defeated by Harold Washington, and a new

administration took office. A substantial number of new

aldermen were also elected to the City Council.

By Illinois law, the Corporation Counsel of the City of

Chicago is “the legal advisor of the City Council.”

Ill.Rev.Stat. 1983, ch. 24, §21-11. By Illinois statute, the

Corporation Counsel “shall appear for and protect the

rights and interests of the City in all actions, suits, and

proceedings brought by or against it . . .” Jd. Consistent

with the State statute, the City Council of the City of

Chicago has vested in the Corporation Counsel the ex-

clusive authority to “conduct all of the law business of

the City.” Chapter 6, §6-2(a) of the Municipal Code of

Chicago. This includes the authority to decide whether

or not an appeal should be pursued. “{WJhen the Corpora-

tion Counsel is of the opinion that an appeal is not

justified, he may certify such judgment to the City Comp-

troller at any time. . . .” Ibid., §6-2(d).

When the Court of Appeals rendered its initial decision

in May 1984, the new administration carefully reviewed

the opinion and concluded that the decision was correct,

that the redistricting litigation should end, and that it was

in the best interest of the City of Chicago that the deci-

sion he implemented as expeditiously as possible. To that

end, the present Corporation Counsel sent a letter te the

private attorney, William J. Harte, who had been approved

by the previous administration’s Corporation Counsel in

1981 to represent the City Council in the litigation. The

letter advised this attorney that his services were no

5 A oop of this ordinance is attached hereto as Exhibit A to

=i4—

longer needed. (This letter is attached to the Response

in Opposition to Petition for Stay of Mandate filed by the

Corporation Counsel in this Court.) Immediately there-

after, the Corporation Counsel entered his appearance for

the City Council.

However, Mr. Harte has taken the position that he is

entitled to pursue further appellate proceedings in the

name of the City Council. He took this position neither

on the basis of an authorization from the Corporation

Counsel nor on the basis of a City Council resolution, but

on the basis of individual authorizations from 26 members

of the 50-member City Council. On the basis of these in-

dividual authorizations, Mr. Harte has commenced pro-

ceedings in the name of the “City Council.”

While a number of individual aldermen obviously sup-

port this effort to appeal to this Court, they lack authority

to do so without a formal resolution or ordinance, adopted

by the City Council, directing such action. Hotchkies v.

City of Calumet City, 377 Ill. 615, 619, 87 N.E.2d 332

(1941); Wheeling Trust and Savings Bank v. City of

Highland Park, 97 Ill.App.3d 519, 423 N.E.2d 245

(Ill.App. 1981); Hadley v. Bd. of Trustees of Firemen’s

Pension, 447 N.E.2d 958, 961 (Ill.App. 1983). The City

Council, as a legisiative body, has never taken steps to

authorize such action. Consequently Mr. Harte has no

power to pursue this petition on the “City Council’s”

behalf, or on behalf of any other party, since all parties

other than the City Council were dismissed before the

appeal to the Seventh Circuit.

To summarize: neither the City Council nor the Corpora-

tion Counsel has authorized the filing of the petition for

certiorari. As the only authorized legal representative of

the City Council, the Corporation Counsel respectfully re-

quests this Court to deny the petition for certiorari so

that remedial proceedings on remand can begin at once.

==

IN LIGHT OF THE TRIAL COURT’S PERVASIVE

ERRORS, THE COURT OF APPEADCS HAD NO CHOICE

BUT TO REMAND THIS CASE -

The Court of Appeals found that the district court deci-

sion on the Voting Rights Act was based on a thoroughly

mistaken set of legal principles. Because it misinterpreted

the law, the district court failed to properly analyze the

particular instances of unlawful dilution of minority voting

strength that respondents proved. And while it rightly

found the Act had been violated, its identification of the

actual violations was so totally deficient as to require

remand.

As will now be shown, the petition for certiorari scarce-

ly disputes that the district court used a mistaken set of

Voting Rights Act principles to consider this case. In-

stead, the petition focuses on one limited aspect of the

Court of Appeals’ analysis—its instruction that the district

court on remand consider whether black or Hispanic m=.

jorities in excess of 50% voting-age population may be

appropriate in several wards.

As will be seen, nothing about this non-mandatory sug-

gestion deserves this Court’s review. Whatever the details

of the remedy may turn out to be, the district court’s

decision could never have been allowed to stand. And the

Court of Appeals was right to require consideration on

remand of possible majorities in excess of the bare

minimum ordered by the district court.

A. The Trial Court’s Erroneous Interpretation of Section 2

Required Remand By the Court of Appeals

Totally aside from the issue of proper majorities, the

Court of Appeals had no choice but to remand for fur-

ther proceedings, for everything the trial court did was

—16—

based on erroneous legal standards.* United States Postal

Service v. Aikens, ..... US. ....., 108 S.Ct. 1478, 1483

(1983); Kelly v. Southern Pacific Co., 419 U.S. 318, 323

(1974); United States v. General Motors, 384 U.S. 127, 141

n.16 (1966).

Thus, the greater pa. . of the Court of Appeals’ opinion

is spent correcting the district court’s erroneous legal

theories of Section 2 of the Voting Rights Act.

disagreed and found that Section 2 applied to redis-

tricting plans and that “claims of vote dilution come

within the scope of the Act”. 740 F.2d at 1404; App. 10.

Petitioner neither defends the district court’s misinter-

pretation of the Act nor protests the Court of Appeals’

reading of it.’

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7 The legislative hi lea question that the Court of

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(Footnote continued on following page)

eileen

(2) The district court had concluded that in considering

whether Section 2 has been violated, the court should not

look at what was done in individual wards (Tr. 4099-4101;

App. 57-58). The Court of Appeals reversed this un-

founded theory:

In a case where lines are drawn to establish discrete

electoral units and to distribute racial and ethnic

ee Seas Se rege Bs wee Base

ines are drawn may become independent indicia of

discriminatory intent or result.

740 F.2d at 1405; App. 13. Here again, the Court of Ap-

peals’ approach is consistent with all the decisions under

Section 2, all of which look at the impact of specific bound-

ary changes on minority voting strength. Gingles v. Ed-

misten, 590 F.Supp. 345, 372-375 (E.D.N.C. 1984) (three

judge court), cert. denied, 104 S.Ct. 1433 (1984); Major

v. Treen, 574 F.Supp. 325, 353 (E.D.La. 1988) (three judge

court); Rybicki v. State Board of Elections, 574 F.Supp.

1082, 1113-1117 (N.D.IIl. 1982) (three judge court); Busbee

v. Smith, 549 F.Supp. 494, 517 (D.D.C. 1982) ‘three judge

court); Buskey v. Oliver, 565 F.Supp. 1473, 1483 (M.D.Ala.

1983).

white areas, or the adoption of discriminatory redistricting

S.Rep. No. 97-417, 97th , 2d Sess. at 8 (hereinafter, “Senate

avoid any ambiguity, the Senate

it

2. For example, the trial court found no fault with defen-

dant’s pervasive frac‘uring of black and Hispanic cum-

munities, and indeed it opined that such fracturing was

a positive “step toward integration” (Tr. 4101-4103; App.

58-59). However, the Court of Appeals recognized, as has

every court before it, that fracturing may dilute minori-

ty voting strength and violate Section 2. 740 F.2d at

1408-1409; App. 18-19.° Petitioner does not question this

conclusion.

(4) The trial court had found that the manipulation of

ward boundaries to reduce minority voting strength was

excusable if motivated by incumbents who “wanted to

preserve the majority . . . which elected them to office”

(Tr. 4101; App. 58). The Court of Appeals denounced such

manipulation of ward boundaries and found that “the

manipulation of racial voting populations to achieve

retrogression” in this case violated Section 2. 740 F.2d

at 1406; App. 14. Petitioner does not challenge this

holding, which is consistent with the existing case law.

See, e.g.,. Major v. Treen, supra, 574 F.Supp. at 1109-

1112; Buskey v. Oliver, supra, 565 F.Supp. at 1483.

8 Courts ize ‘racturing as the classic device for diluting the

voting anmeth of a large, geographically cohesive minority

community:

eae i ryt rte ims ech ct ag da

rma nyt ech egse wt oloe participation, however,

remains the er cieediy cote tent

what could o communi-

ae dismemberment of ye lack voting ng community

gna aco debilitating the organiza-

tion and decreasing the participation of black voters. -

Kirksey v. Board of Supervisors, 564 F.2d 139, 149 (6th Cir. 1977)

(footnote omitted). It 1s not surprising, therefore, that

pend me ty Seng! voy,» rincipal evils at which the Voting ts Act was

ie UT. nited Jewish Organizations v. Carey, US. 144,

—19~—

(5) The trial court had viewed “preserving incumben-

cies” by manipulating racial groups® as a legitimate

motivation in this case. The Court of Appeals recognized

that “discrimination based on an ultimate objective of

keeping certain whites in office” is indistinguishable from

“discrimination born of pure racial animus.” 740 F.2d

at 1408; App. 19.

In short, entirely independently of the question of the

proper majorities on remand, the Court of Appeals faced

a district court opinion that had been constructed on a

thoroughly erroneous interpretation of the Act. It

therefore had no choice but to remand for further pro-

ceedings. See, Pullman-Standard v. Swint, ..... Si <eeniss

102 S.Ct. 178i (1982).

B. The Instruction That the District Court Consider the

Appropriateness of Black and Hispanic Majorities of

Over 50% Voting-Age Population Is Sound

The focus of the petition is on the Court of Appeals’

directive that on remand, the dist’ ict court carefully con-

sider the appropriateness of using plack and Hispanic ma-

jorities of more than 50% voting age population to remedy

the violations that have been found to exist. According

to petitioner, the Court of Appeals has rewritten Sec-

tion 2 to require the “maximization” of minority voting

array equ se nd ee en ae

Marcin sat “{Tjhere a ee cae © bestest the

Sema a2 ing made to save

[Alderman x (the white alderman of the th Ward] (PX

3B). However Council’s interest in protecting incumbents was

Tth Ward) and Jose Martiner {an Hispanie alderman from the Bs

Ward) were redistricted out of their wards.

—20—

strength or to “guarantee the election of a . . . minority

group” (Cert. pet. at ii). This charge is unfounded.

The district court concluded that 50% voting age ma-

jorites would presumptively remedy all violations of the

Act. The Court of Appeals rejected this conclusion. It

recognized that the district court’s approach failed to take

~ account of the fact that in key wards, such as the 15th

and 37th, the pre-remap black majorities had reached 66%

and 76% respectively. In the face of these facts, the par-

tial restoration to a 50% majority is not, in the words

of the Court of Appeals, a “fair antidote to retrogression.”

740 F.2d at 1417; App. 37. Similarly, it is not a “fair an-

tidote” to the fracturing of the Hispanic community.

This analysis is unassailable. A complete and effective

remedy must aim, so far as possible, to provide blacks

and Hispanics with the same opportunity to elect repre-

sentatives of their choice that they would have had but

for defendant’s unlawful dilution of black and Hispanic

voting Put differently, the district court should

have in considering a remedy, what the likely ward

configuration would have been but for the illegal pack-

ing, fracturing and manipulation that actually took place.

On this record, there was no reason to assume that ab-

sent the unlawful dilution, blacks and Hispanics would

have had nothing more than bare 50% voting age ma- |

jorities in each of the wards that had been distorted by

the City Council’s unlawful dilution. To the contrary, the

reason these Voting Rights Act violations took place was

that blacks and Hispanics otherwise would have had solid

majorities in the wards in question.

Thus, as the Court of Appeals rightly held, there was

no basis for presuming that a bare majority of voting age

population would restore blacks and Hispanics to where

wed would have been but for the Voting Rights Act viola-

“ile

tions in question. To the contrary, there is the strongest

reason to reject such a presumptive remedy: It would

encourage violations of the Act. If the creation of bare

_ 50% voting majorities were presumptively appropriate to

remedy a Voting Rights Act violation, then incumbents

in jeopardy because of racial changes within their wards

would be encouraged to decimate the voting strength of

the racial group that threatens their incumbency. If they

are later caught by a court, the only consequence will be

to restore the “other” racial group to a level that affords

them no more than an even “50/50” chance to win—no

matter how great a majority that group would have had

in the absence of the violation. Thus, even with such a

“remedy,” such incumbents will have improved their posi-

tion at the expense of the other racial group.

The petitioner seems to argue that a remedial order giv-

ing minorities in a given ward a mere 50% voting age

population would, as a practical matter, give them a fair

opportunity to elect candidates of their choice, even

though in the absence of the violation they might have

had a far greater percentage of that ward. The district

court accepted this view, holding, in essence, that no mat-

ter what that percentage would have been, a 50% voting-

age majority will suffice to correct the problem.

But the Court of Appeals rightly found the district

court’s treatment of this important question to be total-

ly inadequate. Indeed, because of its lack of specific find-

ings and its refusal to cite to specific evidence, it is not

possible to discern with any confidence what evidence the

district court found persuasive in reaching its conclusion

that a 50% standard will correct any dilution, no matter

how massive, of black voting strength. As the Court of Ap-

peals pointed out, there was evidence, including statistical

evidence, that minorities in Chicago need more than a

%

—22—

bare voting age majority to have a realistic chance to elect

a candidate of their choice. For example:

(a) There was expert testimony that adjustments for

lower minority registration and turnout guidelines

typically were in voting rights cases. Indeed,

melo? go ew ge. defendant’s own redistricting ex-

pert, Mr. Brace, testified that the 65% guideline has

received wide recognition and acceptance in the

redistricting field for precisely that reason. 740 F.2d

at 1414.

(b) There was evidence, based on the Chicago political

experience, that minorities in Chicago traditionally

have been able to elect aldermen only when the

minority population reaches the 65%-70% levei in

a ward. 740 F.2d at 1414. There was no testimony

to the contrary.

(c) There was statistical evidence that majorities of 65%

or more are needed to provide an effective remedy

in the wards that had to be redrawn. Again, defen-

dant’s redistricting expert Mr. Brace found that on

the average Hispanics in Chicago need 70% ma-

jorities in order to have a meaningful opportunity

to elect candidates of their choice (Tr. ). And

Faas that biacks in Chicago needed 65% (PX

There is no indication in the trial court’s opinion that the

trial court considered any of this evidence. Since the

district court failed to address this problem in any

coherent way, the Court of Appeals rightiy instructed it

to do so on remand. In so instructing, it was in full ac-

cord with this Court’s cases that require remand when

a trial court “ails to consider relevant evidence. See, ¢.g.,

Inwood Laboratories v. Ives Laboratories, ..... Th: sais

102 S.Ct. 2182, 2190 n.19 (1982).

While the district court’s opinion casts virtually no light

on just what evidence it considered on this issue, the peti-

tion for certiorari tries to make up that deficiency. Ac-

x

cording to the petition, the district court was relying upon

“statistics, as opposed to assumptions, of voting age pop-

ulation, voter registration and voter turnout for white,

black and Hispanic groups for elections from 1975 to 1982”

(Cert. Pet. at 3). According to petitioner, these statistics

were generated by “one of the most extensive data bases

ever developed” (Id.), and they purportedly show that

minorities now register and vote in as great percentages

as whites.

For two reasons, this argument has no merit. First, an

appeal to the Supreme Court is not the place to conduct

a factual analysis that the district court failed to conduct.

As the Court of Appeals correctly observed,

Examples of the sort of statistics which a district

judge might wish to evaluate for their reliability and

significance were provided by both the defendant-

appellee in its rehearing petition, although not in its

original briefs and argument, and by the plaintiffs-

gee ae in their answer. In its rehearing petition,

e defendant included a chart with data on black

voter registration and turnout for the elections from

1979 to 1982. Rehearing Petition at 12. While it

would be within the district court’s discretion to ac-

cept, reject or utilize such statistics in a modified

form, the district court would be required to explain

and justify its reliance on such statistics and on the

numbers on which they are based.

740 F.2d at 1414 n.18; App. 32 n.18.

Second, when the district court on remand ultimately

analyzes petitioner’s touted “data base,” it will find

something different than what petitioner describes in its

petition for certiorari.

Contrary to the implication of defendant’s petition, the

City of Chicago does not maintain any voter registration

and turnout statistics by race. Petitioner’s figures for

—24—

racial turnouts are nothing but estimates based on an ex-

pert’s extrapolations made on tenuous assumptions. This

is not the place to describe the bizarre results of those

extrapolations. Suffice it to say that-this analysis “showed”

a startling number of instances where more people were

registered than actually lived in a precinct or ward.’°

Without denigrating the utility of expert attempts to

ascertain racial turnouts in the absence of direct evidence,

it is clear that on remand the court will have to make the

most careful analysis and findings of any such studies.

10 In order to be able to make these estimates, petitioner’s ex-

pert, Kimball Brace, obtained: (a) 1980 census data showing the

number of voting people in each hical census unit (cen-

sus “tracts” and “blocks”), and (b) Chicago Board of Election

showing the number of people registered and the number

of people who voted in each election year (1975-1982) in each

evttoded ra samreiiia was coe ag: . ses ihe

n or or any

se Mr. ng ig to Mp ant — blocks to precincts, and

nm compare number of people who registered (or turned out

to vote) in that election year (e.g. 1979), to the number of people

who lived in the co nding census blocks at the time of the

This analysis led, however, to massive errors, because there is no

way, te Seeraane ‘ene Soe Sere ae ion in any

precinct was the same on election day in 1 or any other year)

as it was ut the time of the 1980 census. Indeed, both common

sense and the facts on the record tell us that there are signifi-

cant population changes over time. The difference of even a year

is signi For example, the population shifts between 1979 and

1980 were mene | , ov age plaintiffs could identify over 100

precincts in which Mr. ’s registration rates in the 1979 elec-

tion exceeded 100% of the 1980 voting age population in these

precincts (Tr. 3797-3799).

Mr. Brace’s fn nc oil de pene that 1.4% of “i voting

population in was registered to vote. Even in

icago, that number is too high.

Moreover, the difficulty in estimating overall registration and

turnout rates pales in comparison with the difficulty in estimating

separate rates for blacks, whites and Hispanics.

—25—

Such an analysis and findings are precisely what was miss-

ing from the district court’s oral opinion in this case.1

CONCLUSION

For all the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted, a

JAMES D. MONTGOMERY

Corporation Counsel of the

City of Chicago

610 City Hall, Chicago, IL 60602

(312) 744-7787

11 Ip ~~ > only estimates - produced by seo goa

suggest registration and turnout rates app ose

of whites came from the November 1982 gubernatorial election.

That election took place as this lawsuit was winding to a close,

and thus received littie, if any attention. Recognizing this fact, the

Court of Appeals stated:

We understand that the November 1982 ial elec-

tion in Illinois and the 1983 Chicago election indicated

a marked increase in black registration and turn-out. If these

and other elections should oe Chiceny significant —

sistent in voti vior in Chi i

aldermanic i State Would havo te be'a cot i

in redistri practices and

the results of these ions may not be adequate to j

an tt or modification of previously accepted guide-

lines at this juncture. It initially remains wi he dare.

tion of the district judge, however, to determine when such

a consistent and reliable pattern has and when ade-

statistics minority voter

and

se Sh ‘ad tseed ae eee At juncture the

application of an adequate corrective may be considered or

740 F.2d at 1416 n.21; App. 36 n.21.

Ex. 1

EXHIBIT A

CHAPTER 6

DEPARTMENT OF LAW

6-1. Department established

6-2. Corporation counsel

6-3. Delivery to successor

oe Docket Fa

. Legal opinions 3

6-6. ing of ordinances

and nts

6-7. Code revision

6-8. Settlement of suits

and claims

6-1. There is hereby established an executive depart-

ment of the municipal government of the city which shall

be known as the department of law, and which shall em-

brace the corporation counsel and such assistants and

clerks as may be provided for in the annual appropria-

tion ordinance.

- ~ 62. There is hereby created the office of corporation

counsel. He shall be appointed by the mayor, by and with

the advice and consent of the city council, and shall be

the head of the department of law of the city.

Pe: corporation counsel shall perform the following

ties:

(a) Superintend and, with his assistants and clerks,

conduct all the law business of the city;

(b) Appear for and protect the rights and interesis

of the city in all actions, suits and proceedings

brought by or against it ae ow tier Uline, tare

or t, including actions for damages when

brought against such officer in his official capacity;

Ex. 2

(c) Appear for and defend member, officer or

— of the board of health, police department

or department who is sued personally for dam-

ages claimed in consequence of any act or omission

or neglect of his official duties or in consequence of

any act under color of authority or in consequence

of any alleged negligence while engaged in the per-

formance of such duties.

(d) Certify to the city comptroller all ——

rendered against the city as of the date following the

last day on which appeal may be made, when in the

opinion of the corporation counsel no further pro-

ings are proper; provided, that when the corpora-

tion counsel is of the opinion that an appeal is not

justified, he may certify such judgment to the city

comptroller at any time, and provided further, that

when a judgment is rendered against any member

of the police nt for injury to person or prop-

erty Rona, fs m the performance of his duties as

iceman, he shall ritbry | the

eb ri for Lye eer ye & ‘ way in re

opinion, such me of the police nt has

not been guilty of wilful misconduct and the corpora-

tion counsel is of the opinion that an is not

justified. [Amend. Coun. J. 2-26-41, p. » 4-28-52,

p. 2306.]

6-3. Upon the expiration of his term of office, or his

resignation thereof, or removal therefrom, the corpora-

tion counsel shall forthwith, on demand, deliver to his suc-

cessor in office all deeds, leases, contracts, books and

papers in his hands belonging to the city, or delivered

to him by any of its officers, and all or informa-

tion in actions prosecuted or defended by him then pend-

ing and undetermined, together with his register thereof

and record of the proceedings therein.

6-4. The corporation counsel shall keep or cause to be

kept, in proper books to be provided for that pce,

a register all actions in court prosecuted or defended

by his office and all proceedings had therein. These books

Ex. 3

shall at all times be open to the inspection of the mayor,

comptroller, or any member or committee of the city

council.

6-5. The corporation counsel shall, when required so

to do, furnish written opinions upon subjects submitted

to him by the mayor, the city council, or the head of any

department.

6-6. The corporation counsel shall draft such ordinances

as may be required of him by the city council or by any

committee thereof.

He shall draw any deeds, leases, contracts, or other

papers required by the business of the city, when re-

quested so to do by the mayor, the city council, or the

head of any department.

6-7. The corporation counsel shall have general super-

vision of the revision of ordinances and the insertion of

general ordinances into this code in accordance with sec-

tions 1-4 and 1-8.

6-8. The “eo counsel shall have authority, when

directed. by city council, to make settlements of

lawsuits and controverted claims against the city.

It shall be the duty of the corporation counsel and all

other officers of the city, if any, who shall be given

dean Spulah tho city, to tepart le ootting er

, to report in , a

regen Wadlicg of tk cp comma a emth cal ore

month all cases where settlements have been made of

such lawsuits or claims.