Appendix — Chicago Park District v. Alexander
Supreme Court brief1986
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No. 85-1356 ~~
Supreme Court, U.S.
FILED
IN THE MAR se 1986
JOSEPH F. SPANIOL, JR.
Supreme Court of the United States“
OCTOBER TERM, 1985
SILAS J. ALEXANDER, et al.,
Petitioners,
v.
CHICAGO PARK DISTRICT, et al..
Respondents.
APPENDIX TO
RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
THOMAS A. FORAN
JACK J. CARRIGLIO*
JEFF D. HARRIS
DOUGLAS R. STEVENS
FORAN, Wiss & SCHULTZ
30 North LaSalle Street
Suite 3000
Chicago, Illinois 60602
(312) 368-8330
Attorneys for Respondents
Chicago Park District, et al.
*Counsel of Record
Pandick Midwest Inc., Chicago * (312) 733-6000 Q!
App. |
INDEX TO APPENDIX
APPENDIX |
APPENDIX 2
APPENDIX 3
APPENDIX 4
APPENDIX 5
OPINION OF THE COURT OF
APPEALS (September 19, 1985
as modified on November 13,
en
OPINION OF THE COURT OF
APPEALS AFFIRMING THE
DENIAL OF PLAINTIFFS’
MOTION FOR _ PRELIMI-
NARY INJUNCTION (June 3,
eo, ETO LE SEEN
DISTRICT COURT’S ORDER
DENYING PLAINTIFFS’ MO-
TION FOR PRELIMINARY
INJUNCTION (September 30,
5 SARE ORREC ORE S98 TEE DEN ene
MOTIONS FOR DIS-
QUALIFICATON OF JUDGE
PURSUANT TO 28 USS.C.
§§ 144 and 455(a) (November
| RRS. ISON ea CR
DISTRICT COURT’S ORDER
DENYING PLAINTIFFS’ MO-
TION TO DISQUALIFY THE
TRIAL JUDGE (January 7,
IED ciscciniadidasslanabastvaininasnintibapionainelss
Page
2-1
4-|
3-1
App. I-l
APPENDIX I
Silas J. ALEXANDER, et al.,
Plaintiffs-Appellants,
Ve
CHICAGO PARK DISTRICT, et al.,
Defendants-Appeilees.
No. 84-2995.
United States Court of Appeals,
Seventh Circuit.
Argued June 4, 1985.
Decided Sept. 19, 1985.
As Amended on Denial of Rehearing
Nov. 13, 1985.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit
Judge, and WRIGHT, Senior Circuit Judge. *
EUGENE A. WRIGHT, Senior Circuit Judge.
This lengthy litigation alleging discrimination in resources
allocation and employment bv the Chicago Park District during
the years 1970 through 1980 raises these issues:
1) Did the court err in dismissing three counts of the
amended complaint under res judicata and collateral
estoppel?
2) Did it err in dismissing the remaining three counts of
the amended complaint for failure to state a cause of action
under 42 U.S.C. § 1983?
3) Did it err in denying plaintiffs’ recusa! motions?
* The Honorable Eugene A. Wright, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit, is sitting by
designation.
App. 1-2
FACTS
The procedural sequence in this case is convoluted and will
be simplified here to include only pertinent facts.
In 1979, Alexander filed a class action on behalf of all
Black, Hispanic and poor Chicago residents aileging racial
discrimination by the Chicago Park District and its attorneys,
superintendent and past and present commissioners (collec-
tively District). Personal liability is sought against the individ-
ual defendants.
In 1982, we affirmed the court’s deniz! of plaintiffs’ motion
for a preliminary injunction to restrain the budgetary and fund
allocation actions of the District. Alexander v. Chicago Park
District, 709 F.2d 463 (7th Cir.1983). Plaintiffs then filed two
unsuccessful motions to disqualify Judge Leighton and followed
these with a mandamus petition which we denied on February
8, 1983. Alexander’s petition for an en banc rehearing on this
mandamus petition was denied on April 4, 1983.
In 1983, the district court denied plaintiffs’ motion for class
notification under Fep.R.Civ.P 23(c)(2). It determined that
class members would not be prejudiced because if the defend-
ants prevailed, the class members without notice would not be
bound.
Later in 1983, the district court consolidated this case with
another class action, Midwest Community Council, Inc. v.
Chicago Park District (Midwest), No. 79 C 3187 (N.D.IIL.
Sept. 16, 1983) (unpublished), which raised similar dis-
criminatory recreational resources allocation claims against the
District. The Midwest action sought only equitable relief.
In count I of the second amended complaint, plaintiffs
alleged that defendants administered the Chicago Park District
in a racially discriminatory manner, so that parks located in
predominantly Black communities were allocated less park
resources, including state and federal funds, resulting in injuries
and disparities in equipment and services. This count was
brought under 42 U.S.C. § 1983.
App. 1-3
Relying on the Due Process and Equal Protection clauses
of the United States and Illinois Constitutions and on § 1983,
plaintiffs brought employment discrimination claims in counts
I] and III. Count II charged that a civil service examination
administered by the Park Service was not (1) job-related
(2) culturally, racially and sexually unbiased, and (3) objec-
tively administered.
Count III dealt with hiring, assigning and promoting
employees based on race and ethnicity. This count also alleged
a variance in numbers of administrative. recreational, support
and maintenance staff between parks in white and non-white
communities. This in turn was alleged to have forced certain
plaintiffs to resign from park employ because of limited job
opportunities.
Count IV, brought under § 1983, alleges personal injuries
to several plaintiffs resulting from these racially discriminatory
practices. A fifth count was subsequently deleted.
The consolidated cases were tried in 1983. The court
severed Alexander’s employment discrimination and _ tort
claims. During trial, Alexander filed a third amended com-
plaint, similar to the second in the relevant allegations.
After a three-month tria!, the jury returned a verdict for the
defendants on the resources allocation claims and judgment
was entered against plaintiffs on count J in the Alexander suit.
Because the jury heard the Midwest claims in an advisory
capacity only, the court subsequently entered judgment for the
District, incorporating its own findings of fact and conclusions
of law. No appeal was taken from the Midwest judgment.
Defendants moved for summary judgment contending that
the jury verdict on count I was res judicata on all claims in
counts II, IIf and IV. In an order dated September 23, 1983,
the court granted summary judgment on count IV, reasoning
that the underlying basis of the tort claim was discriminatory
resources allocation causing dangerous conditions in black
neighborhood parks. The court granted a partial summary
App. |-4
judgment on counts II and IIIf to the extent that discrimination
in resource allocation or administration would not be reliti-
gated. It then dismissed counts II and II] under Fep.R.Civ.P.
54(b) to allow the parties to appeal.
Alexander did not appeal but filed an amended complaint
as authorized in the September 23 order. Count I alleged that
the District expended federal funds in a racially and ethnically
discriminatory manner in violation of regulations of the Depart-
ment of Housing and Urban Development and Department of
Interior under 42 U.S.C. § 1983.
Count II sought an injunction, reinstatement, back pay and
damages under Due Process and Equal Protection Clauses of
the United States and Illinois Constitutions and under 42
U.S.C. § 1983. It challenged the civil service examination given
by the District on November |, !977 for a physicai instructor
position.
Count III incorporated the allegations of count I that
defendants allocated resources to the parks in a discriminatory
manner and the allegations of count II concerning the civil
service examination. li also was brought under 42 U.S.C.
§ 1983.
Count IV alieged that the District had a policy of alloca-
ting resources and employees on a discriminatory basis in
violation of the Due Process and Equal Protection Clauses of
the United States and Illinois Constitutions and 42 U.S.C.
§ 1983. It sought monetary relief for hiring, assignment and
payment of personnel on a racially discriminatory basis.
Count V alleged that the District expended federal funds in
a discriminatory manner and contrary to federal regulations,
resulting in class members being forced to resign from the
District’s employ. Count VI alleged that the policy of ex-
pending federal funds in a discriminatory manner resulted in
reduced maintenance, aid and inspections at minority parks,
resulting in physical injuries to minority members.
App. 1-5
The District moved to dismiss on the grounds of res
judicata and that the complaint failed to state a claim under 42
U.S.C. § 1983. The court granted the motion on October 18,
1984, dismissing counts I, V and VI on res judicata grounds and
counts II, II] and IV for failure to state a claim.
ANALYSIS
Res Judicata
Res judicata is a doctrine of repose. “It’s enforcement is
essential to the maintenance of social order; for, the aid of
judicial tribunals would not be invoked for the vindication of
rights of person and property, if ... conclusiveness did not
attend the judgments of such tribunals.” Nevada v. United
States, 463 U.S. 110, 129, 103 S.Ct. 2906, 2918, 77 L.Ed.2d 509
(1983), quoting Southern Pacific Railroad v. United States, 168
U.S. 1, 49, 18 S.Ct. 18, 42 L.Ed. 355 (1897). See also Grip-
Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 469 (7th
Cir.1982) (purpose is to reduce costs of litigation).
Under res judicata, or claim preclusion,’ a prior judgment
on the merits bars the same parties or their privies from
' Preclusion occurs under two theories: issue preclusion and claim
preclusion. Claim preclusion bars relitigation of claims or issues
which were or could have been raised in a prior suit on the merits
between the same parties or their privies. Plaintiffs’ claims are
merged in the judgment for plaintiff while judgment for defendant
acts to bar any further claims by plainuff against that defendant. It is
usually referred to as res judicata, and that is how we use it. See
Migra v. Warren City School Dist. Bd. cf Education, 465 U.S. 75,
—___.. 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 ( 1984).
Issue preclusion prevents relitigation of a matter of fact or law
that was previously litigated and decided. See Jones v. City of Alton,
757 F.2d 878, 879 n. | (7th Cir.1985). It is usually referred to as
coilateral estoppel.
The trial court dealt with both issue and claim preclusion.
Because of our decision on claim preclusion, we need not reach the
collateral estoppel issue.
App. |-6
relitigating all issues which were raised and decided or could
have been raised in the prior action. Harper Plastics, Inc. v.
Amoco Chemicals Corp., 657 F.2d 939, 945 (7th Cir.1981); Lee
v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982). The
Goctrine applies in civil rights suits as well. Lee, 685 F.2d at
198-99: Local 1006, A.F.S.C. M.E.. AFL-CIO v. Wurf, 558
F.Supp. 230, 233 (N.D.III.1982). See also Migra v. Warren
City School Dist. Bd. of Education, 465 U.S. 75, —, 104 S.Ct.
892, 899, 79 L.Ed.2d 56 ( 1984) (state preciusion law applies in
federal § 1983 suit brought subsequent to state suit).
In determining the preclusive effect on the six counts in the
fourth amended complaint of the jury’s verdict on count I and
the summary judgment on count IV of the third amended
complaint, the court analyzed the three threshold requirements
of res judicata: (1) identity of parties: (2) identity of causes of
action; and (3) a final judgment on the merits. Lee, 685 F.2d
at 199. See Nevada v. United States, 463 U.S. 110, 129-30, 103
S.Ct. 2906, 2918, 77 L.Ed.2d 509 (1983); Local 1006, 558
F.Supp. at 234.
!. Identity of Parties
The court found that named plaintiffs in the fourth
amended complaint were named also in the third amended
complaint and so concerned itself only with the last two
requirements. Twenty-seven plaintiffs were named in the third
amended complaint. They were named in the fourth amended
complaint, with the addition of the Commite Latino. No
allegations were made as to the membership of the Commite
and no motion for intervention was made. See 3B J. Moore,
J. Kennedy, Moore’s Federal Practice 4 23.90[2] (2d ed.
1985). The court ignored it as not properly a party to this class
action and we agree.
On appeal the plaintiffs argue that res judicata was in-
appropriate because the court refused to require notice to the
class. This does not affect application of res judicata against the
App. |-?
named plaintiffs. Any preclusive effect against potential class
members not notified of the suit is not an issue before us. See
Teamsters Local 282 Pension Trust Fund v. Angelos, 762 F.2d
522 (7th Cir.1985) (second court decides for itself preclusive
effect of first litigation ).
2. Identity of Causes of Action
The trial court held that counts I of the third and fourth
amended complaints were identical. It found that counts V and
VI were premised on the same facts, which ts sufficient identity
for res judicata purposes.
A cause of action consists of “ta single core of operative
facts” which give rise to a remedy. Mandarino v. Pollard, 7\8
F.2d 845, 849 (7th Cir.1983) (operative facts were employ-
ment termination and surrounding circumstances ), cert. denied,
US —_., 105 S.Ct. 116, 83, L.Ed.2d 59 (1984); Coward
v. Colgate-Paimolive Co. 686 F.2d 1230, 1234-35 (7th
Cir.1982) (essential fact underlying first and second suit was
seniority), cert. denied, 460 U.S. 1070, 103 S.Ct. 1526, 75
L.Ed.2d 948 (1983); Lee, 685 F.2d at 200 (cause of action
consists of single core of operative facts ).
Plaintiffs assert that they complain of violations of federal
regulations in counts V and VI, charges not made in previous
compiaints. This argument is to no avail. The essential fact in
count I of the third amended complaint was discriminatory
fund disbursement. It is the essential fact underlying counts V
and VI of the fourth amended complaint.
A mere change in the legal theory does not create a new
cause of action. Shadid v. Oklahoma City, 494 F.2d 1267, 1268
(10th Cir.1974). See also Harper Plastics, 657 F.2d at 945
(“An unsuccessful party may not... frustrate ... res judicata
by cloaking the same cause of action in the language of a theory
untried in the previous litigation.” ). Extensive evidence regard-
ing compliance with the regulations was presented at trial.
App. |-8
Piainuffs argue also that the general jury verdict is in-
sufficient to determine precisely what was found on each issue.
This confuses res judicata and collateral estoppel.
They assert that they were precluded from presenting
evidence on injuries and deaths at the parks. The injury
evidence went only to the issue of damages, not liability.
Both of the preceding arguments can be characterized as a
challenge to the opportunity to fully and fairly litigate these
claims. See Kremer v. Chemical Construction Corp., 456 U.S.
461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Lee, 685 F.2d at
201. This argument cannot be sustained in view of the three-
month jury trial. Plaintiffs had a fuil and fair opportunity to
litigate the issue of fund allocations. See Jones, 757 F.2d at
884; Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 745 F.2d 441,
451-52 (7th Cir.1984), cert. denied, __. U.S. ___.,, 105 S.Ct.
2656, 86 L.Ed.2d 273 (1985).
3. Finality
The plaintiffs challenged finality on the grounds that the
September 23 order was insufficient for rule 54(b) purposes.
The district judge did not agree but found that, even if the
order was not applicable, it had the requisite finality for res
judicata purposes.
Rule 54( b) requires that if a court enters final judgment on
fewer than all the claims it must make a determination that
there is no just reason for delay and expressly order the entry of
judgment. Fep.R.Civ.P. 54(b). The September 23 order did
not technically comply with Rule 54(b), but it was clear:
In order to enable the parties to this cause to appeal or
cross-appeal, and in conformance with Rule 54(b),
Fep.R.Civ.P., counts II and III of the Third Amended
Complaint are dismissed, subject to the right of plaintiffs to
file a Fourth Amended Complaint. ...
App. 1|-9
The plaintiffs argue that remarks made by the court at a
post-judgment conference indicate that the judgment was not to
be considered final. The remarks came upon entry of the order.
Because it is clear, and because the parties were explicitly told
that the court wanted guidance from an appellate decision, we
are convinced that the parties knew of their right to appeal.
The court did say it would certify under 28 U.S.C.
§ 1292(b) the res judicata effect of the count I verdict on counts
1], Il and IV. Even though no 28 U.S.C. § 1292(b) certifica-
tion was entered, this did not make less clear the September 23
order.
Finally, while not expressly determining there was no just
reason for delay in the order itself, the judge did determine that
an appeal would be in the interest of the public, the court and
the plaintiffs. This litigation had been before Judge Leighton
for four and one-half years.
Although reluctant to deviate from the strict Rule 54(b)
requirements, we have held that less than technical compliance
will suffice when neither party is prejudiced by the lack of
formality. Local P-/71, Amalgamated Meat Cutters & Butchers
v. Thompson Farms Co., 642 F.2d 1065, 1072-73 (7th
Cir.1981); accord Equal Employment Opportunity Comm'n vy.
Delta Air Lines, Inc., 578 F.2d 115, 116 (Sth Cir.1978).
Plaintiffs’ prejudice, if any, stems from their choice not to
appeal the September 23 order and not from lack of sufficient
notice that the order was appealable.
Plaintiffs also challenge the dismissal of count IV of their
third amended complaint on res judicata grounds. This issue
was appealable as of September 23, 1983. We note that the
district court correctly determined this issue.
The district court was also correct that the September 23
order was sufficiently final for res judicata purposes even if not
appealable. Lurmmas Co. v. Commonwealth Oil Refining Co.,
297 F.2d 80, 89 ‘2d Cir.1961), cert. denied, 368 U.S. 986, 82
App. I-10
S.Ct. 601, 7 L.Ed.2d 524 (1962), held that judgments not final
for § 1291 can be “ ‘final’ in the sense of precluding further
litigation [depending onj such factors as the nature of the
decision, ... the adequacy of the hearing and the opportunity
for review.” Accord O’Reilly v. Malon, 747 F.2d 820, 822-23
( Ist Cir.1984); Commodity Futures Trading Comm'n v. Board
of Trade of City of Chicago, 701 F.2d 653, 657 (7th Cir.1983 );
Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1191
( Sth Cir.1982), rev'd on other grounds, 460 U.S. 1007, 103 S.Ct.
1254, 75 L.Ed.2d 483 (1983).
There is no doubt that two of the three Lummas Co. factors
have been met here. The jury rendered a verdict only after a
protracted trial. See also Aiello v. City of Wilmington, 470
F.Supp. 414, 419 (D.Del. 1979), aff'd, €23 F.2d 845 (3d
Cir.1980) {jury verdict final “in the sense of inalterable” from
the date entered ).
Title VII and § 1983
The district court dismissed the remaining counts of the
Alexander plaintiffs’ complaint on the grounds that Title VII is
the exclusive remedy for employment discrimination charges.
Under the principle established in Trigg v. Fort Wayne Commu-
nity Schools, 766 F.2d 299 (7th Cir.1985), we reverse.
Title VII is not the sole remedy for employment dis-
crimination claims of state employees. /d., slip op. at 5-6.
Congress intended to retain preexisting remedies. Only if the
right asserted was created by Title VII must it be vindicated
through the procedural system set up in that Act. Accord Day v.
Wayne County Bd. of Auditors, 749 F.2d 1199, 1204 (6th
Cir.1984). See also Carpenter v. Stephen F. Austin State
University, 706 F.2d 608, 612 n. | (Sth Cir.1983) (Title VII is
remedy unless specific allegations of constitutional violations ):
Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (Sth
Cir.1982) (when § 1983 used as alternate remedy to Title VII.
elements of cause of action are the same); Whiting v. Jackson
State University, 616 F.2d 116, 121 (Sth Cir.1980) (same).
App. I-ll
We sympathize with defendants’ position and note that our
holding and that of the Sixth Circuit create the anomalous
situation that a federal employee is limited by the adminis-
trative procedures of Title VII while state employees are not.
Because we interpret what remedies Congress has provided, we
rule as we do. Congress may amend Title VII if it so chooses.
Counts II and IV are based on the Fourteenth Amend-
ment’s protection against intentional discrimination based on
class membership. Trigg, slip op. at 2; Huebschen v. Depart-
ment of Health and Social Services, 716 F.2d 1167, 1171 (7th
Cir.1983). They survive at this stage of the proceedings.
Count III is more problematic. Plaintiffs concede that it is
based on statutory violations. Generally, where a statute
provides its own comprehensive enforcement scheme, that
scheme may not be bypassed by pleading an underlying
violation of the statute and bringing suit directly under § 1983.
Middlesex County Sewerage Authority v. National Sea Clam-
mers Association, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69
L.Ed.2d 435 (1981) (Federal Water Pollution Control Act,
Marine Protection, Research and Sanctuaries Act); Smith v.
Robinson, U.S._.__., 104 S.Ct. 3457, 3468, 82 L.Ed.2d
746 (1984) (Education of the Handicapped Act); Preiser v.
Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 1836, 36 L.Ed.2d
439 (1973) (habeas corpus).
Title VII is one of the statutes that may not be bypassed.
Grand American Federal Savings v. Novotny, 44? ').S. 366, 375-
378, 99 S.Ct. 2345, 2350-52, 60 L.Ed.2d 957 (19/9) (Title VII
may not be bypassed via § 1985(3)). Is Title VI like Title VII
in this respect?
We think it is. Title VI provides its own administrative
enforcement procedure which would be bypassed by pleading
Title VI violations under § 1983. Moreover, the remedies
available under Title VI should in some cases be limited to
declaratory and injunctive relief. Guardians Association vy. Civil
App. 1-12
Service Commission, 463 U.S. 582, 597-598, 103 S.Ct. 3221,
3229-30, 77 L.Ed.2d 866 (1983). This limitation would be lost
in the broad grant of a remedy at law or equity available under
§ 1983.
Since Title Vi provides its own remedial scheme, we hold
that private actions based on Title VI may not be brought under
§ 1983. See Guardians Association, 463 U.S. at 610 n. 3, 103
S.Ct. at 3236 n. 3 ( Powell, J., concurring ).
Recusal
On November 12, 1982, plaintiffs filed disqualification
motions against Judge Leighton under 28 U.S.C. §§ 144 and
455(a). The motions were based on statements by the court
during the hearing on plaintiffs’ motion for a preliminary
injunction and findings and conclusions entered in ruling on
that motion.
Again we rule against plaintiffs on this issue. Under
section 144, bias “must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what
the judge learned from his participation in the case.” United
States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710,
16 L.Ed.2d 778 (1966); United States v. English, 501 F.2d
1254, 1263 (7th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct.
791, 42 L.Ed.2d 811 (1975). The plaintiffs’ affidavits set forth
only rumor concerning the administration of the Chicago
NAACP 25 years ago.
Plaintiffs’ insinuations that the trial judge did not vigor-
ously pursue alleged discrimination when he represented the
NAACP are not an extrajudicial source of bias. What must
stem from an extrajudicial source are facts and information.
Judge Leighton called as a witness Mr. Jones, a former
President of the Chicago NAACP whom he had represented 25
years earlier. He indicated surprise that the plaintiffs had not
called Jones or deposed him.
App. I-13
Contrary to plaintiffs’ assertions, Jones’ credibility was not
automatically enhanced. The judge specified in denying the
recusal motion that he had not prejudged Jones’ testimony. Cf.
Roberts v. Bailar, 625 F.2d 125, 127-29 (6th Cir.1980).
Section 455(a) requires recusal if the judge’s impartiality
might reasonably be questioned. 28 U.S.C. § 455(a); Pepsico,
Inc. v. McMillen, 764 F.2d 458 (7th Cir.1985). The association
between Judge Leighton and Mr. Jones in 1958 was ancient
history and insufficient to support a recusal motion.
CONCLUSION
We affirm the dismissal of counts I, V and VI on res
judicata grounds. We affirm the dismissa! of count III for
failure to state a claim. We remand counis II and IV to the
district court to rule first on the several other grounds raised in
the District’s summary judgment motion.
Judge Leighton has dealt with this complicated case in an
admirable fashion. We affirm his dismissal of plaintiffs’ recusal
motions.
This case has been in the court system since June 27, 1979.
In the interests of bringing it to an end and decreasing the costs
to the parties and the courts, we retain jurisdiction during this
remand. After final orders are entered below, this case will be
resubmitied to this court and panel without oral argument.
Leave will be granted to file briefs within th: ee weeks after the
record is certified to us. See Grano v. Department of Devel-
opment of City of Columbus, 637 F.2d 1073, 1082 (6th Cir.
1980).
AFFIRMED IN PART AND REVERSED IN PART.
App. 2-1
APPENDIX 2
Silas ALEXANDER, et al.,
Plaintiffs-Appellants,
v.
CHICAGO PARK DISTRICT, et al.,
Defendants-Appeliees.
No. 82-2783.
United States Court of Appeals,
Seventh Circuit.
Argued April 20. 1983.
Decided June 3, 1983.
Before BAUER, NICHOLS.* and WOOD, Circuit Judges.
HARLINGTON WOOD, 5Sr., Circuit Judge.
This is an appeal from the district court’s denial of a
preliminary injunction in a Fourteenth Amendment and 42
U.S.C. § 1983 “equal services” class action alleging that the
Chicago Park District discriminatorily administers parks in
black and latino neighborhoods which are inferior in condition
and maintenance as compared to those parks situated in
predominantly white neighborhoods. In their motion for a
preliminary injunction, plaintiffs sought to restrain the Chicago
Park District from adopting any budget, plan or scheme which
fails to allocate funds to parks without regard to the race or
ethnicity of their clientele, fails to indicate the breakdown of
funds on a per-park basis, or fails to allocate funds for the
immediate repair of unsafe facilities in certain of the parks: the
motion also generally sought to restrain the expenditure of park
funds in a discriminatory fashion. Emphasizing the weakness
* The Honorable Philip Nichols, Jr. of the United States Court of
Appeals for the Federal Circuit, is sitting by designation.
App. 2-2
of the plaintiffs’ evidence of discrimination and the balance of
equities, the district court determined that the prerequisites for
preliminary equitable relief had not been demonstrated and so
denied the motion. A full trial on the merits of the complaint is
scheduled to commence almost simultaneously with the is-
suance of this opinion. Especially in view of this imminent
opportunity to argue the full merits of this case, and in view of
the complicated non-self-executing nature of the relief sought,
we affirm.
i.
The centerpiece of plaintiffs’ evidence at hearings on the
motion was a comparative survey study of fifty-seven Chicago
parks, executed over a period of several days by four individ-
uals with no background in park administration or evaluation.
The study purported to demonstrate, largely through undefined
and subjective criteria, inter alia, that sixty-eight percent of the
parks in white neighborhoods were “very clean” while only five
percent of black and latino parks could be so described; that
sixty-two percent of the parks in white neighborhoods were
“very well kept,” while only ten percent of black and latino
parks were so maintained; that seventy-five percent of the white
parks were in “good” condition compared with only fifteen
percent of the black and latino parks; and that only black and
latino parks were “hazardous,” “poor” or unacceptable.” In
addition to this survey, there was also submitted photographic
evidence and depositions of two newspaper reporters attesting
to racially disparate park conditions observed in their simulta-
neous investigations. Plaintuffs and defendants also called
expert witnesses in survey evaluation to respectively defend and
attack the survey’s methodology and integrity.
The district court found that the evidence offered by the
plaintiffs was not sufficient to establish a reasonable likelihood
of success on the merits of their discrimination claim. The
district court particularly focussed on the lack of methodologi-
cal rigor and sophistication in the conduct of the survey, the
evidence chiefly relied upon by the plaintiffs. It concluded that
numerous deficits combined to undermine the survey’s credi-
bility.
App. 2-3
First, the district court noted, the evidence concerning the
survey’s timing, administration and staffing did not suggest
either professionalism or minimal rigor. The director and
author of the survey, for example, was a political scientist
located in Washington, D.C. who had no experience. in the
evaluation of parks or park facilities, and no acquaintance with
the Chicago Park District. Even more troublesome to the
district court was the fact that the survey director was never
present to control or even monitor survey administration, and
instead communicated through a law student who was nomi-
nally in his employ but who operated out of the offices of
plaintiffs’ attorney. The director played no part in the hiring or
training of the four surveyors, nor did he participate in post-
inspection consultations and review, thus depriving him of a
means to ensure that the conduct of the survey hewed to his
design. Staff selection and training, the district court found, was
also not such as to inspire confidence in the survey’s reliability.
The four surveyors were hired after brief interviews with the
director’s Chicago proxy (in at least one case, directly following
the interview ); two of the surveyors were demonstrably without
any experience in the evaluation of park services, and there is
no indication that the others possessed such training. Never-
theless, after two and a half hours of oral instruction, within two
days the surveyors began their inventory in teams of two,
during and around the Labor Day weekend in 1981, an
exceptionally busy period for the public parks. Only one visit
was allocated to each park, with no follow-up visits to test
whether observed conditions were representative over time, and
even these visits were concluded rapidly, in some cases at the
rate of six per day. The hasty and cursory nature of the visits
and the survey design, the district court noted. also calls into
question the validity of specific evaluations. To take but two
examples, the surveyors took no note of the recreational
programs taking place in the parks, and, although the survey
elicited descriptions of the availability of park lighting, all visits
were made by daylight, thus preventing the surveyors from
determining whether the erected lighting was functional.
App. 2-4
Second, the district court noted, the lack of experience and
training of the surveyors was exacerbated by shoddy survey
design and tabulation. Most egregiously, the evidence estab-
lished that the standards for site evaluation were neither
precisely defined nor applied consistently throughout the course
of the survey. Although the survey form contained evaluation
checklists concerning cleanliness (“very clean, ieee
79 86
clean,” “in
need of cleaning,” and “unacceptable”) and maintenance
(“very well kept, a
+9 66
satisfactorily kept,” “in need of care,” and
‘“unacceptable”’), no definitions were furnished for these terms.
Not surprisingly, the testimony established that the surveyors’
standards of evaluation changed significantly over time, and
that as a result of consultation with other surveyors, at least two
survey answers were modified after the fact to reflect a shift in
relativistic perspective. The elasticity of the evaluation cate-
gories is further suggested by the response of one surveyor who
labelled at least one park as “excellent” even though he had
noted broken water pipes, graffiti, broken glass, blocked lights,
poor blacktopping and poor sidewalks. Further fluctuation in
standards was virtually guaranteed by the fact that, although
each park was surveyed in teams of two, only one evaluation
checklist was provided for each park, making it quite possibie
that the relative persuasiveness of the two surveyors, rather
than consistent direct observation, helped shape the final result.
The district court found this fluidity and lack of objective
indicia for evaluation especially troublesome in view of the bias
inherent in the sharing of results among surveyors and the
testimony of at least one surveyor that he had inferred the racial
designations of some parks in advance of his survey and had
allowed general neighborhood features to influence his park
ratings. Finally, the district court found, whatever integrity
these evaluations may have had was further eroded by the
survey director’s telescoping of the four-point evaluation spec-
trum into two-column data (e.g. the collapsing of “very clean,”
“clean,” “in need of cleaning,” and “unacceptable” into the
categories “very clean” and “less than very clean”). And not
App. 2-5
only were the park evaluation criteria of questionable value, the
distric: “surt found, but also the validity of the survey’s
classitication of each park’s racial character was open to
question. For example, the category of “white” parks included
only those located in neighborhoods of whose residents more
than ninety-nine percent were white, while a park was denomi-
nated “black” if located in a neighborhood of whose residents
eighty percent were black. Also inconsistently, a sixty percent
threshold was used to designate the “black” parks in connection
with some of plaintiffs deposition testimony. Further, there
was a lack of rigorous correspondence between the park’s
character and the neighborhood’s character; at least one park
designated as “white” was found to have been frequented by
an equal number of hispanic, black, oriental and white people.
Most of these criticisms of the survey’s design and execu-
tion were supported at the hearing by one of defendants’ expert
witnesses, an academic specialist in urban resources who had
published several articles concerning the distribution of park
resources and had made a detailed study of the allocation of
Chicago Park District resources. To buttress the survey’s
credibility, plaintiffs called as an expert witness an academic
survey specialist who was retained by the plaintiffs the day
before his testimony and had spent less than three hours
reviewing the hundreds of pages of handwritten documents and
the survey report and questionnaire.
Aside from the survey, other evidence of the discriminatory
allocation of resources among Chicago parks was before the
district court and, like the survey, was found to be of question-
abie value. Plaintiffs, for example, submitted numerous photo-
graphs purporting to depict disrepair and heaps of detritus in
certain parks, but many of the sites photographed were shown
to be outside of park district property, or refuse dumps which
are cordoned off from the main areas of the parks; some of the
purported disrepair was shown to be in fact construction in
progress. Plaintiffs also introduced the depositions of two
App. 2-6
Chicago Sun-Times reporters purporting to describe racially
disparate park conditions observed in their investigations, but
these observations were also shown to lack even a modicum of
rigor: one reporter testified that he had classified parks as white
or black on the basis of his impressionistic sense of the host
neighborhoods and that his visits were also short and unguided
by any systematized method; the other reporter admitted to
having prejudices and preconceptions concerning the relative
conditions of Chicago parks and confessed that he had diffi-
culty finding a very clean park in any Chicago neighborhood.
Defendants also offered positive evidence refuting the
allegations of racially guided distribution of park resources.
Defendants’ expert witness, an urban resources specialist with a
background in the distribution of park resources, undertook
extensive review of Park District documents, including repair
and maintenance orders, interviewed Park District personnel,
and offered his conclusion that race was not a determining
factor in the allocation of Park District resources. This neutral
pattern was to some extent confirmed by the testimony of the
Park District’s director of safety who noted through statistical
evidence that injuries and accidents were reperted twice as
often from “white” parks as from “black” parks. Finally,
former and present Park District Commissioners testified to the
general absence of discrimination against black parks and
noted special affirmative park programs designed to reach
disadvantaged communities.
Defendants also offered evidence pertaining to the effects
of compliance with preliminary relief requested by plaintiffs:
creation of a per-park budget, and the freezing of expenditures
pending verification of the racially neutral character of Park
District disbursements. There was evidence that a budget
allocating specific sums for each of 574 parks would be too
inflexible to allow response to special and unforeseen devel-
opments. And it was noted that since no expenditure is made
App. 2-7
unless specifically authorized in a valid budget, a restraint on
the 1982 budget of the Park District would result in great
interference with Park District operations.
il.
The legal standards governing the issuance of a prelimi-
nary injunction are too familiar to merit extended discussion.
To obtain such relief, the plaintiff must demonstrate that he has
no adequate remedy at law or will be irreparably harmed if the
injunction does not issue; that the threatened injury to the
plainuff outweighs the threatened harm the injunction may
inflict upon the defendant: that the plaintiff has at least a
reasonable likelihood of success on the merits; and that the
granting of the injunction will not disserve the public interest.
Atari, Inc. v. North American Philips Consumer Electronics
Corp., 672 F.2d 607, 613 ( 7th Cir.), cert. denied, —U.S.—, 103
S.Ct. 176, 74 L.Ed.2d 145 (1982); Fox Valley Harvestore, Inc.
v. A.O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097
(7th Cir.1976). The standards governing review of the district
court’s denial of a preliminary injunction are equally clear; we
may not reverse unless there is demonstrated to be a clear abuse
of the trial court’s discretion or clear error in the trial court’s
findings. Atari, Inc., 672 F.2d at 613. Even though the district
court subsiantially adopted the defendants’ proposed findings
of fact and we are thus properly enjoined to exercise a
somewhat more critical review of those findings, Photovest
Corp. v. Fotomat Corp., 606 F.2d 704, 731 (7th Cir.1979), cert
denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980):
Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1284 (7th Cir.
1977), we must still defer in large measure to the district court’s
findings where, as is often the case here, they hinge greatly on
the court’s assessment of the credibility of observed witnesses,
Klokner, Inc. v. Federal Wire Mili Corp., 663 F.2d 1370, 1375
(7th Cir.1981); Trabert and Hoeffer, Inc. v. Piaget Watch
Corp., 633 F.2d 477, 479( 7th Cir.1980). We find ample
evidence in the record to support the district court’s conclusion
that plaintiffs have not demonstrated the threshold require-
ments for a preliminary injuction.
App. 2-8
The most serious bar to relief below, and one which we
have often described as the threshold requirement which must
be met before other factors may be considered, see, ¢.g.,
Reinders Bros., Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d
44, 49 (7th Cir.1980); Kolz v. Board of Education of City of
Chicago, 576 F.2d 747, 749 (7th Cir.1978), was the inability of
the plaintiffs to show a reasonable likelihood of success on the
merits. To prevail in a constitutionally based “equal services”
case like the one before us, the plaintiff must demonstrate the
existence of racially identifiable neighborhoods, substantial
inferiority in the quality or quantity of the municipal service,
and discriminatory intent or motive. Dowdell v. City of Apopka,
S11, F.Supp. 1375 (M.D.Fla. 1981), aff'd, 698 F.2d 1181 (11th
Cir.1983); Johnson v. City of Arcadia, 450 F.Supp.1363, 1379
(M.D.Fla.1978 ).
Here, the plaintiffs offered three major clusters of evidence
to meet the second requirement of its equal services claim, the
inferior quality of black and latino parks: the commissioned
survey, the depositions of two Chicago Sun-Times reporters,
and photographic evidence. But, as the district court found,
there was substantial reason to believe that each of these items
were unreliable. The survey was designed and directed in
absentia by a political scientist who had no previous experience
in the evaluation of park systems and who had no direct contact
with those who conducted the survey; the training of the equally
inexperienced surveyors was perfunctory and brief; the site
visits were hastily conducted over one of the busiest periods of
the year; the survey itself consisted of fluid, undefined criteria
which not only elicited a single response from two surveyors but
also invited substantial shifts in the surveyors’ relative eval-
uation framework and even the post hoc amendment of answers
as well as bias from discussions with other surveyors and from
the appearance of the surrounding communities; even these
fluid tallies were subsequently collapsed, thus altering after the
fact the width of the response spectrum; different criteria existed
for the definition of black and white host neighborhoods; and
ee
App. 2-9
there was evidence that even these categorizations did not
accurately reflect the clientele of the respective parks. Similarly,
there was evidence that some photographs submitted to prove
allegedly substandard conditions in some parks in fact did not
depict park property at ail, or depicted only segregated refuse
disposal or construction areas of the parks at issue. Finally, the
deposition evidence of the newspaper reporters was found to be
anecdotal, unsystematic and marred by the admitted pre-
conceptions of the observers. In response, the defendant
produced evidence based upon a detailed review of Park
District practices that race was not a factor in park resource
allocation, and offered evidence of heightened solicitude toward
black park clientele.
Plaintiffs challenge as clear error twenty-one of the district
court’s findings cited by the district court as undermining the
credibility of the survey and other evidence. We need not
address each of these claims at length, for an examination of
those challenges reveals that either they attempt to overturn
conclusions reached from ample evidence, much of which
concerned witness credibility, or they concern minor shadings
of inference which do not affect the gist of the findings. For
example, plainuffs protest that the district court, in noting that
one of the surveyors had no background in the survey or
analysis of parks, ignored that the surveyor had training in
participant observation of education programs in schools and
playgrounds; we are not told, however, how this background
refutes the conclusion that he was not familiar with the peculiar
factors involved in the maintenance, repair and design of a city-
wide park system about which sophisticated qualitative judg-
ments were required. Plaintiffs also challenge the district
court’s finding that the immediate supervisor of the survey was
a law student in the employ of plaintiffs’ attorney; while in some
administrative sense this student was responsive to the survey
director’s instructions, it was undisputed that she was paid by
plaintiffs’ attorney in the first instance ( although her salary was
later credited against the survey director’s billings) and that she
operated out of plaintiffs’ attorney's office. factors which suggest
App. 2-10
her closer responsiveness to the strategic needs of the litigation
rather than the detachment crucial to objective survey science.
Likewise, plaintiffs challenge the district court’s finding that
plaintiffs used differential statistical criteria for the designation
fo black and white parks, noting that a lower threshold for
black parks was necessary to increase the potential sample of
black parks; left unexplained, however, are the reasons why the
criteria for “white” parks could not have been equally relaxed,
or why a wholly inconsistent sixty percent threshold was used in
connection with black parks discussed in the deposition.
Several other findings of the district court—e.g., that the
survey director had no direct control over, or even ability to
monitor, the execution of the survey; that the survey offered no
precise or consistent standards for evaluation; that one surveyor
was able to discern the racial designation of some parks before
completing the survey; that surveyors’ comparative evaluation
framework changed and that questionnaire responses were
modified after group consultation; and that certain question-
naire categories were recombined after data was gathered—are
essentially uncontradicted by the plaintiffs, who nevertheless
now dispute the level of emphasis properly attaching to each
item. However, even after an independent review, and in-
dulging every presumption in plaintiffs’ favor, we believe that
the district court did not err in concluding that the use of such
dramatically open-ended criteria and post hoc manipulation or
responses significantly undermined the credibility of the survey.
Other findings challenged by plaintiffs—e.g., that the survey
director did not truly believe that his total insulation from the
hiring and training of surveyors and the execution of the survey
was usual and proper social science methodology: that the
expert witness called to buttress the flawed survey after a
cursory review of the underlying materials was not credible:
and that the testimony of defendants’ expert witness, who had
concluded after an extensive documentary review and inventory
of Park District practices that no evidence of discrimination
existed, was to be heeded—clearly rest upon the district court’s
App. 2-11
observation of these witnesses, and as such should receive great
deference. Trabert and Hoeffer, Inc. v. Piaget Watch Corp., 633
F.2d 477, 479 (7th Cir.1980). In short, even if some of the
findings concerning the gaps in the design and execution in the
survey were in error, there is ample and essentially uncon-
tradicted evidence in the record to leave us with the distinct
impression that the survey and other evidence was incapable of
supporting a finding of discrimination at trial. Whether or not
these credibility gaps may be mended or otherwise com-
pensated for at the full trial scheduled to commence shortly, we
agree with the district court that they do not at this preliminary
stage meet the plaintiffs’ burden of proving that they are
reasonably likely to prevail on the merits. '
1 We note in passing that, even had plaintiffs’ evidence been
sufficient to prove disparate impact, it would still be doubtful whether
they had proved discriminatory intent or motive, the third prong of
the “equal services” analysis. Dowdell v. City of Apopka, 5\1 F.Supp.
1375, 1383 (M.D.Fla.1981). It is true that in some cases where
racially variant results cannot be explained on other grounds, e.g. in
cases of a dramatic mismatch between jury representation and the
composition of a surrounding community, a clear showing of dis-
parate impact will support a prima facie case of discriminatory intent,
Castaneda v. Partida, 430 U.S. 482, 496, 501-2. 97 S.Ct. 1272, 1283-
1284, 51 L.Ed.2d 498 (1977). Unlike the case of racially exclusive
juries, however, variance in the quality of parks could be due to
myriad subtle factors, e.g. higher incidences of vandalism or larger
stress resulting from a greater youth age cohort in the park’s clientele.
Indeed, plaintiffs’ own survey report and expert witness specifically
refused to posit any link between the patterns observed and dis-
criminatory intent. But even if a prima facie case of discriminatory
intent had been established, the extent of the rebuttal. including a
detailed study of Park District resources and practices demonstrating
that race was not a factor in resource allocation, suggests that
plaintiffs’ ultimate burden of proving discriminatory intent would not
be easily satisfied on this record. We need not reach that issue here.
as we agree with the district court that the evidence did not credibly
support a finding of disparate impact. except to note that the
requirement of this second level of analysis at the very least militates
in favor of deferring relief antil the conclusion of the full trial which is
to commence shortly.
App. 2-12
In addition to finding that plaintiffs were unable to demon-
strate a reasonable likelihood of success on the merits, the
district court also found that considerations of the public
interest and the balance of hardships cautioned against the
issuance of an injunction at this stage. It should be noted in this
connection that plaintiffs have not intelligibly challenged the
district court’s finding that the proposed injunctive relief would
have the short-term effect of severely hampering, if not freez-
ing, the normal expenditure of Park District funds until such
time as any proven racial disparities are eliminated. Plaintiffs
assert that they merely seek to halt “the practice of masking
unconstitutional discrimination behind a non-specific budget,”
but their requested relief by its very terms would immediately
restrain the Park District from “[e]xpending or causing to be
expended public funds in the allegedly discriminatory pattern,”
a restraint which would, if discrimination were proven, make
impossible the expenditure of any Park District funds as the
busy summer season approaches until the necessarily com-
plicated process of ferreting out discriminatory allocations was
completed. Paradoxically, then, the immediate effect of the
requested relief would be to seriously threaten the provision of
any Park District services to the very population which plaintiffs
claim is currently underserved, a result hardly consonant with
the public interest.
But even if a change in the budget format were the sole
relief requested, it is difficult to perceive how the balance o°
hardships or the public interest compel relief at this preliminary
stage. As a threshold matter, we note that there is no evidence
in the record indicating that any practical benefit, much less an
immediate one, would inure to the plaintiffs from the creation
of a per-park budget; indeed, plaintiffs’ survey author specifi-
cally refused to avow that any of the allegedly disparate
conditions identified in his report could be linked to the Park
District’s aggregated budgetary categories. By contrast, the
Park District produced evidence that per-park budgeting would
be both impractical and inflexible in view of the likelihood of
App. 2-13
unforeseen developments and the economic need to deploy and
account for park services on an areal, rather than site-specific,
basis. However, even if some link between park budgetary
practices and allegedly discriminatory conditions were in-
dicated by the evidence before us, it is hard to see why it would
make any practical difference whether an ultimate remedy were
postponed pending the conclusion of the full trial scheduled to
commence shortly. Indeed, plaintiffs concede that a conversion
to per-park budgeting will require an appropriate interval of
readjustment. Thus, even if plaintiffs had identified cognizable
discrimination and had _ identified budgetary non-
compartmentalization as its source, in view of the necessarily
complicated and gradual implementation of any such bud-
getary relief that could be provided at this stage and the grave
operational disruptions that would be occasioned by an imme-
diate order placing the Park District’s budget and expenditures
in legal jeopardy, the balance of equities suggests that such
extraordinary relief should, if justified, follow the conclusion of
the imminent full trial.
Plaintiffs have alternatively urged this court to reverse and
remand the order denying relief because the trial judge alleg-
edly erred in his decision, contained in an order filed several
months after the denial of the preliminary injunction, not to
disqualify himself pursuant to 28 U.S.C. § 455(a). However,
we note that an order rendered under 28 U.S.C. § 455(a) is not
an interlocutory order appealable as of right under 28 U.S.C. §
1292(a). We have also previously noted that strong judicial
policy considerations caution against allowing piecemeal ap-
peals through the review of otherwise unappealable orders in
the course of considering substantively unrelated interlocutory
appeals. Helene Curtis Industries, Inc. v. Church and Dwight
Co., Inc., 560 F.2d 1325, 1335 (7th Cir.1977), cert. denied, 434
U.S. 1070, 98 S.Ct. 1252, 55 L.Ed.2d 772 (1978): Rosenfeldt v.
Comprehensive Accounting Service Corp., 514 F.2d 607, 611 n.
App. 2-14
5 (7th Cir.1975). As noted in 9 J. Moore, Federal Practice
7 110.25[1] at 272 (1973),
Even where an interlocutory order such as an in-
junction has been properly appealed and other incidental
orders or questions non-appealable in themselves are
sought to be reviewed, it must be remembered that the
appellate court will usually review only that part of the
order which relates to the injunctive relief afforded or
denied and those questions basic to and underlying the
specific order which supports the appeal.
Since the plaintiff will be able to obtain appellate review of the
order denying disqualification after a final decision on the
merits, thus allowing for a full contextual assessment of any
possible appearance of impropriety, and in view of the fact that
plaintiff has already obtained review of the order from this
court through a mandamus proceeding,? we decline to con-
travene settled judicial policy in order to permit intermediate
appeal on this issue.
For the foregoing reasons, the district court order denying
preliminary injunctive relief is affirmed.
AFFIRMED.
2 On February 8, 1983, in an unpublished order, this court denied
plaintiffs’ Petition for a Writ of Mandamus seeking review of the
district judge’s refusal to disqualify himself pursuant to 28 U.S.C.
§ 144 and § 455(a). Alexander v. Leighton, No. 83-1161 (7th Cir.
Feb. 8, 1983). Plaintiffs’ Petition for Rehearing En Banc of that
decision was subsequently < ed, also in an unpublished order.
Alexander v. Leighton, No. 83-1161 (7th Cir. April 4, 1983).
App. 3-1
APPENDIX 3
IN THE UNITED States District Court
Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, et al., i No. 79 C 2242
Penintif’s. Before the
VS. Honorable
4 George N. Leighton
United States
District Judge
CHICAGO PARK DisTRICT,
et al.,
Defendants. fl
MEMORANDUM
This civil rights suit is brought by plaintiffs who are
Negroes and Hispanics; they sue on their own behalf and on
behalf of a class which has been certified. They assert claims
under the 14th Amendment, Title II of the Civil Rights Act of
1964, 42 U.S.C. §§2000(a), et seg., and 42 U.S.C. §1983. The
compiaint in five counts, seeks damages, injunctive and declara-
tory relief against maintenance by defendants of what plaintiffs
allege is a racially discriminatory municipal park system.
In a motion for preliminary injunction verified by their
lead counsel, plaintiffs seek injunctive relief pendente lite
restraining defendants, their agents, employees, servants, and
attorneys, from adopting or seeking to adopt any budget that
fails to provide “for substantially equal allocations of the said
funds to park facilities without regard to race, color or ethnic
derivation of the users of the park facilities... [or any budget
that] fails to show on 2 per-park basis the sums to be expended,
in such fashion as to permit determination of whether and to
what extent black and Latino [sic] parks are discriminated
against in terms of allocation of funds.”
App. 3-2
This motion has been heard over an unusually long period
of time, the evidence consisting of many exhibits and the
testimony of witnesses, lay and expert; a large number of
exhibits has been received. Oral and written submissions to the
court have been made by the parties; and the court now files
this memorandum of its findings of fact and conclusions of law.
|. Findings of Fact
1. The petitioners are the class of plaintiffs in the instant
action which is presently designated as all Black and Hispanic
residents of the City of Chicago who have allegedly been
injured by acts of the defendants.
2. Respondents are the Chicago Park District, Leslie P.
Liss, Patrick O’Malley, Theodore Jones, Jean Foran, William
A. Lee, Sydney Marovitz, lola McGowan, Raymond F. Simon
and Edmund Kelly.
3. Chicago Park District, hereinafter referred to as District,
was created by the Illinois legislature by a statute enacted July
10, 1933 and approved by voter referendum on April 10, 1934.
(Ill. Rev. Stat. ch. 105, §§333.1 and 333.3). It is comprised of
five hundred seventy-four (574) parks, playgrounds and play-
lots of various sizes and is intended to provide recreational
services throughout the territorial limits of the City of Chicago.
District employs approximately three thousand four hundred
(3,400) employees; it maintains approximately seven thousand
three hundred and twenty-one (7,321) acres of land and
operates some eighty (80) divisions and departments. District
is governed by a five (5) person board of commissioners,
members of which are appointed by the Mayor of Chicago to
serve for varying periods of time; it is managed by a general
superintendent who oversees department and divisional lead-
ers.
4. Liss, during all the time relevant hereto, was an
attorney employed by district. O’Malley, from April 6, 1973 to
April 28, 1980; Jones, from February |, 1977 to April 25, 1979;
App. 3-3
Foran, from May 28, 1975 to April 25, 1979; Lee, from April
25, 1969 to April 25, 1980, were Commissioners of District. Mr.
Lee was reappointed a Commissioner on May 5, 1982. Sydney
Marovitz has been since December 4, 1974, a Commissioner of
District. lola McGowan has been since May 16, 1979, a
Commissioner of District. Raymond F. Simon was from May
16, 1979 to May 20, 1982, a Commissioner and the president of
District. Edmund Kelly has been, at all relevant times the
General Superintendent of District. The individual rspondents
are sued herein individually as weil as in their official capacities.
5. On December 2, 1981, plaintiffs filed their motion for a
preliminary injunction seeking an order from this court restrain-
ing defendants from approving the 1982 budget of the Chicago
Park District. The alleged support for the motion is a “report
on a survey of parks, personnel, facilities and conditions in the
City of Chicago,” dated November 13, 1981. On December 3,
1981, defendants filed their objections to the motion and a
supplemental objection was submitted on December 7, 1981.
6. The budget of the Chicago Park District designates the
amount of monies appropriated for all of the departments,
divisions and accounts of the District for a particular year. The
District budget is implemented for each calendar year by the
Office of Comptroller, is approved, after public hearing, by the
Board of Commissioners and is implemented by the General
Superintendent and department leaders. For the purpose of
expenditure and accounting control, the appropriations in the
1982 budget are made in accordance with the standard classifi-
cation of accounts provided for in the official manual of
accounts and published by the Comptroller pursuant to the
Code of the Chicago Park District. The Comptroller and the
heads of departments and divisions of the Chicago Park District
must administer the amounts appropriated in this ordinance by
standard accounts as specified by code numbers, designation of
which may be amended or altered by the Comptroller to suit
the needs of proper classification in accordance with the official
manual of accounts of the Chicago Park District in which are
App. 3-4
specified the details of personal services, materials and supplies,
machinery and equipment, land, improvements and extraor-
dinary expenditures by contract, contractual services, and spe-
cial and other expenses. The heads of departments, divisions
and other subdivisions of the District are prohibited from
incurring any liabilities against any account in excess of the
amount in the 1982 budget appropriated for such account.
7. On or about October 26, 1981, the Chicago Park
District, through its Office of Comptroller, proposed its annual
appropriation ordinance and revised budget for 1982. On
December 21, 1981, the Board of Commissioners approved the
1982 budget. The budget went into effect on January 8, 1982
and the District is operating pursuant to that budget at the
present time.
8. The District budget is the sole means of funding and
control of monies used by all departments and divisions of the
District, including: Office of the Treasurer, Department of
Treasury, Department of Comptroller, Department of Pur-
chases, Office of General Superintendent, Division of Marine
Services, Department of Law, Department of Personnel and
Civil Service, Injury Compensation Committee, Office of Secre-
tary, Department of Engineering, Department of Budget and
Management, Department of Auto Parking, Zoological Depart-
ment, Department of Public Information, Department of Rec-
reation, and all subdivisions of these departments.
9. Prior to the filing of the plaintiffs’ motion, but during
the pendency of this case, the budgets of the Chicago Park
District for the years 1979, 1980 and 1981 were proposed by
the Office of the Comptroller, approved after public hearing, by
the Board of Commissioners, and implemented by the General
Superintendent and department leaders without any objection
by the plaintiffs.
10. On December 29, 1981, this court began hearing
plaintiffs’ motion for preliminary injunction. Plaintiffs’ first
App. 3-5
witness was Manford Holmes, a teacher in the field of special
education. Prior to his involvement in this case, he had no
experience in the survey or analysis of parks, and had no
familiarity with the planning or maintenance of parks.
11. On August 25, 1981, Holmes was interviewed at the
law offices of Rufus Cook, plaintiffs’ counsel, by Judith
Richardson. Judith Richardson was a law student and an
employee of the law offices of Rufus Cook. The interview
lasted about 45 minutes and, at its conclusion, Holmes was told
by Richardson that he was hired as a park surveyor. The other
members of the survey team were Brian Fogel, Elaine Matuga
and Audrey Kelly. They were all interviewed and hired by
Judith Richardson. On August 25, 1981, Judith Richardson
introduced Holmes to a questionnaire on which he and other
members of the survey team were to make notations concerning
parks they were to visit.
12. The questionnaire forms first used by Holmes called
for information as to the time ( morning, afternoon, or evening )
of a park visit as well as information concerning observations at
the park. The questionnaire made reference to a Chicago Park
District list of facilities and a check-off procedure was used to
note observations as to the availability and condition of facil-
ities. The questionnaire included a section for observations on
the number of park personnel, their race and sex. The
designations for race were “Black”, ““White’’, and “Other”.
Information concerning park lighting was also requested. Con-
clusions were to be made regarding the cleanliness of a park
which requested the surveyor to check off one of the following
categories: “very clean”, “clean”, “in need of cleaning” and
“unacceptable”. No definitions were supplied for those terms.
The questionnaire called for conclusions on maintenance and
whether park grounds were “very well kept”, “satisfactorily
kept”, “in need of care”, or “unacceptable”. No definitions
were furnished. The questionnaire then requested the general
impression of the surveyor as to whether the park was “good”
or “poor”. The following definitions were given:
App. 3-6
good—park is clean, well maintained, with equipment in
good repair and having evidence of frequent use;
poor—park in need of care, is poorly maintained, dirty,
with equipment in poor repair or not useable.
Finally, the questionnaire included space for the comments and
impressions of the observer.
13. On August 25, 1981, Holmes participated in a
pretesting of the questionnaire which cons.sted of visits to
Memorial Park and Ridge Park, the model park for the survey
team. Holmes observed that Ridge Park gave him a sense of
relaxation and leisure and scored it as very clean and well
maintained. Subsequently, it was determined that Ridge Park
should not be the model park as other parks were better.
14. The pretest was completed on August 25, 1981. In the
evening of August 25, 1981, the four members of the survey
team and their head, Judith Richardson, discussed their obser-
vations. As a result of the meeting, the questionnaire was
amended. A change was made and the categories describing
the overall conditions of the park were expanded from “good”
and “poor” to “good”, “fair”, and “poor”. The “fair” category
was defined as follows:
park in need of some care, is not adequately maintained
with some equipment in disrepair.
15. There were no stated definitions for the “cleanliness”
and “maintenance choices. Holmes received some guidance on
those terms and their subdivisions from Judith Richardson and
a Mr. Dotledge, whom he knew as an advisor who attended the
survey team meetings held at the offices of Rufus Cook.
Hoimes relied on Dotledge’s advice.
16. On August 27, 1981, Holmes began his survey with the
amended questioninaire. His visits continued on August 28 and
29 and on September |, 2, 4 and 5, 1981. The work days began
at 9:15 or 9:30 a.m. and finished no later than 5:30 p.m. Each
App. 3-7
day the survey team would return to the offices of Rufus Cook
and discuss their observations and conclusions with Judith
Richardson, Dotledge and Rufus Cook.
17. Plaintiffs’ practice of designating parks as “black” or
“white” is inconsistent and confusing. In his report, Koehler
designates “black parks” as those in wards where the popu-
lation is greater than 80% Black. “White parks” are those
within wards whose population is less than or equal to 1%
black. The plaintiffs have varied that standard from time to
time. For example, in the depositin of Raymond Simon, the
plaintiffs employ a 60% standard for determining the alleged
White and Black areas.
18. It has never been the practice of the defendants to
designate a park as “White”, “Black”, or by any other ethnic
reference. The parks are open to the public; defendants
maintain and administer these parks for persons of all races,
creeds, and color.
19. Prior to and during his survey visits, Holmes learned of
the alleged racial identities ( White, Black or Spanish) of the
parks.
20. Holmes noted his observations and conclusions of a
park on the questionnaire. He completed his questionnaires on
the basis of one visit per park. No followup visits were made to
any park to determine if any observed conditions changed.
21. The analysis which was made on the number and race
of park personnel was based on observations of persons
believed by the surveyors to be working at a park during the
time of a visit. The findings as to park users were based on
observations of persons using the park and their race at the time
of the survey visits.
22. No observations were made as to the recreational
programs in effect at any park.
23. Holmes noted his observations on park lighting on the
questionnaire. Nearly all of his park visits were made in the
App. 3-8
morning or afternoon. Holmes was unable to determine if
lighting was or was not functional.
24. Many types of observations were made by Holmes. At
Chopin Park, Holmes observed that there were squirrels and
birds.
25. One of the parks visited by Holmes was Park No. 410.
Holmes understood that to be a “Black” park and stated on his
questionnaire that it was one of the worst and was unaccept-
able. On the questionnaire, Holmes rated the park as being
“clean”. Holmes visited Chase Park which he understood to be
a “white” park. Holmes observed damaged basketball stan-
dards, graffiti, no basketball nets, missing fence sections, broken
storm covers and locker room vandalism. Holmes rated Chase
Park as fair.
26. In the evenings there were team discussions where
Holmes shared data with the other team members and Judith
Richardson. During the evening sessions, observations which
had been made on questionnaires were often changed and
revisions On questionnaires completed days earlier were made.
The opinions and ideas of the survey team members changed
during the course of the survey.
27. Holmes knows of Dr. Koehler, but has never had any
contact with him. Dr. Koehler did not interview, hire or train
Holmes. During the entire pretest and survey process, Holmes
never spoke with Koehler.
28. Brian Fogel testified on behalf of the plaintiffs. He
was one of the survey team members, and is seeking a Masters
degree in social sciences from the University of Chicago. He is
from New York, is 24 years of age. and has lived in Chicago
since August 19, 1981. Fogel was interviewed and hired by
Judith Richardson. Prior to August 19, 1981, Fogel had never
seen a Chicago Park and had no familiarity with the Chicago
Park District system. He has never been involved in a survey
regarding urban resources. He entered the project with abso-
lutely no experience with parks or park districts and all of his
training and experience was received from Judith Richardson.
App. 3-9
29. Fogel undertook a two and one-half hour instruction
process with Judith Richardson. He received all of his instruc-
tions from Richardson. He was told to familiarize himself with
the questionnaire, visit parks, observe conditions and to look for
signs of disrepair.
30. Each evening during the survey, Fogel, the other team
members and Richardson would meet to discuss their observa-
tions and conclusions. Occasionally, Rufus Cook and Joseph
Dotledge would be present. Dotledge offered advice which
Fogel! stated was not used by any team member.
31. Fogel visited about 30 parks and noted his conclusions
on the questionnaires. Influences outside of the parks such as
the character of the neighborhood, traffic and business in the
area were considered by Fogel in arriving at his overall
impression of a park.
32. Fogel had discussions with other team members as to
their observations and conciusions on parks which they visited.
These discussions caused him to change observations which he
noted during his park visits and led to amendments to the
questionnaire form including an expansion of the overall condi-
tion categories from “good” and “poor” to “good”, “fair”, and
“poor”. Fogel, himself, used the term “excellent” and “per-
fect” in describing some parks.
33. As Fogel observed more parks, his perspectives began
to change. The standards for the evaluation of parks varied as
the survey progressed.
34. Kelvyn Park, an alleged “White” park. was rated
excellent and found to be in perfect condition by Fogel. Fogel
observed broken water pipes, graffiti, broken glass, blocked
lights, poor blacktop and poor sidewalks at that park.
35. Paschen Park was designated as a “White” park.
Fogel observed equal use among Spanish, Black, White and
Oriental people during his visit to that park.
App. 3-10
36. During the entire time of his involvement in the
project, Fogel never had direct communication with Dr.
Koehler.
37. Dr. David Koehler was called as a witness on behalf of
the plaintiffs. He has an undergraduate degree in mechanical
engineering and an advance degree in political science, and is a
professor at American University in the field of political science
and government. Together with his wife, he formed Policy
Research Consultants, a private firm which does social science
research. Koehler resides in Washington, D. C. Koehler has
never before studied parks or park districts, nor was he familiar
with the Chicago Park District. Prior to his “report”, his
publications have been limited to governmental subjects.
38. Koehler has been a friend of Rufus Cook, the
plaintiffs’ counsel, since 1958. Koehler was retained by Rufus
Cook in June, 1981 to author a survey of the Chicago parks.
Subsequently, Koehler reviewed the complaint which had been
filed by the plaintiffs and made an analysis of what was needed
to prove the allegations. With guidance and suggestions from
Rufus Cook, Koehler prepared a survey questionnaire.
39. Judith Richardson, an employee of Rufus Cook,
handled the interview and selection of the survey team which
would implement the questionnaire. On directions she received
from Dr. Koehler by long distance telephone, Richardson
selected four of the ten applicants for the survey position.
Koehler had no part in the rejection of applicants. The training
of the survey team and pretesting of the questionnaire was
handled by Richardson.
40. During the entire survey process, Koehler remained in
Washington, D.C. Koehler had no direct communication with
the survey team during the survey process. Any relationship
which he had with the survey team was conducted through
Richardson by telephone or correspondence. Koehler knew
that this is not the normal way to conduct a survey.
App. 3-11
41. The report of Koehler which purported to analyze the
survey of 57 parks was prepared in November 1981. The scope
of the report was described as follows:
It is not within the scope of this research to assign
responsibility for the observed relationship between the
‘race’ of a park and its quality.
42. The conclusions reached by the survey team con-
cerning their single visits to parks provided the foundation for
the report which Koehler authored.
43. Koehler was not aware that during the survey process.
the survey team was meeting and sharing data. He was not
aware that survey standards were changed during the course of
the study. Koehler did not know that Rufus Cook and Mr.
Dotledge attended some of the survey team meetings. Koehler
did not know who Dotledge was.
44. Koehler intended for the survey teams to be racially
mixed and consist of persons of both sexes. The team
composition was changed by Richardson and the team mem-
bers so that the teams were either all “Black” or all “White”.
In the majority of instances, the Negro team visited “Black
parks” while the Caucasian team visited “White parks”.
45. With respect to facilities, Koehler concludes that there
is no correlation between the presence of facilities and the
“race” of a park.
46. The Koehler report and the graphs prepared by the
plaintiffs consolidated the conclusions of the survey team
members. With respect to “cleanliness”, the questionnaire
categories of “very clean”, “clean”, “in need of cleaning” and
“unacceptable” were collapsed in the report and graphs into
“very clean” and “less than very clean”. The “maintenance”
categories of “very well kept”, “satisfactorily kept”, “in need of
care” and “unacceptable” were consolidated in the report and
graphs as “very well kept”, or “less than very well kept”. As to
App. 3-12
“overall condition”, the questionnaire choices of “good”, “fair
and “poor” were collapsed into “good condition” and “les
than good condition”.
47. Koehler stated that he could not draw any conclusio1
as to the cause of any observed condition and that a determina
tion of racial discrimination by the Chicago Park District |
beyond the scope of the data.
48. Koehler has not made any correlation betwee:
findings of park conditions and the 1982 budget of the Chicag
Park District.
49. The survey of parks made on behalf of the plaintiff
was made by surveyors who lacked sufficient training to drav
the conclusions which they reached on their single visits to th
parks.
50. Information called for by the questionnaire, whe:
viewed in the context of the survey procedures, is meaningless
For example, the questionnaire called for information on par
lighting and data was compiled on that subject. Yet, the surve
visits were made in the morning or afternoon with no opportu
nity to observe the functioning of lighting.
51. The survey is not credible because the surveyors wer
not provided with precise and constant standards for thei
evaluations.
52. The survey is not credible because the surveyors wer
net objective. They were provided with the alleged identity o
parks ( White, Black, etc.) before they made their visits. The
also allowed their impressions of the neighborhood or busines
community surrounding a park to enter into their conclusion
about the condition of the park.
53. The survey is not credible because of the complete lac
of contact between the surveyors and Dr. Koehler. As th
survey designer, Dr. Koehler should have interviewed th
survey team applicants. Koehler should have had control ove
“= ~~
~~ wes * Ve
App. 3-13
the rejection of applicants. Koehler should have had direct
contact with the team members when questions arose con-
cerning their observations.
54. The survey is not credible because of the manner of
completing each questionnaire. Each questionnaire was shared
by two individuals. The critical sections of the question-
naires—the portions relied on by Koehler in his report—were
the multiple choice sections on cleanliness, maintenance and
overall condition. There was only space for one response as to
those sections. The responses to those sections were subject to
the compromise of the individuals sharing the questionnaire.
Moreover, the more persuasive a particular member was, the
more likely it was that his own selection would be reflected on
the questionnaire.
55. The survey is not credible because of the evening
meetings of the survey teams where data was “shared”, where
outside influences such as Joseph Dotledge advised the team
members on the completion of their questionnaires, and where
questionnaires which had been completed days earlier at the
parks were amended.
56. The survey is not credible as it was based on one visit
to approximately 57 parks between August 27, 1981 and
September 5, 1981. The majority took place during the Labor
Day Weekend—a time period of extreme use of the parks. A
team member would visit up to six parks a day during the
survey. Valid judgments concerning overall park conditions
could not be made.
57. The survey is not credible because the standards of
judgment employed by the surveyors varied during the course
of the survey. Their conception of whether a park was “good”,
“fair”, or “poor” was different at the end of the survey than at
the beginning and no attempt was made to re-analyze parks in
light of the changed standards.
58. David Garth Taylor, an assistant professor of political
science, testified on behalf of the plaintiffs. Mr. Taylor
App. 3-14
expressed his opinion as to the validity of the questionnaire and
survey techniques.
59. There is littie probative value in Mr. Taylor’s testi-
mony. He was retained the evening before he was to testify and
spent some three hours reviewing and “analyzing” the vo-
luminous questionnaires and data.
60. Plaintiffs introduced the deposition testimony of Sun-
Times reporters, Morton Newman and Kevin Lamb. Their
testimony relates to their visits to parks in 1979. Their
testimony is not probative: it is replete with opinions, con-
clusions and generalities. Newman’s testimony is tainted by his
“preconceptions” concerning parks and the Park District. Their
testimony is in no way supportive of the Koehler report as
Newman, himself, when shown the Koehler report, stated that
he could not address the specifics set forth in the report.
61. Dr. Kenneth Mladenka testified on behalf of the
respondents. He is a professor at Texas A&M University who
specializes in the field of the analysis of urban services. He has
studied park and recreation systems in several states and has
published many articles concerning the distribution of park
resources. While serving as a visiting professor to Northwestern
University, Mladenka studied the allocation of resources of the
Chicago Park District. He interviewed Park District personnel.
analyzed documents and pubiished his findings. He spent
several hundred hours in such endeavors. He is also familiar
with the plaintiffs’ surveys and has analyzed the Koehler study.
62. From August 1981 through June 1982, Mladenka
resumed his analysis by interviewing Park District personnel
and reviewing documents. The reviewed documents included
memoranda from the Landscape Maintenance Department
regarding the hours worked by personnel and Repair and
Construction Department documents pertaining to park repairs
and hours worked.
App. 3-15
63. In his studies, Mladenka reviewed the demographic
and ward data and has formed opinions as to whether race is a
determining factor in the allocation of the resources of the Park
District.
64. Professor Mladenka gave the opinion that racial
composition of a ward in the City of Chicago has not been a
determining factor in the allocation of park acreage within the
ward; and that racial composition of a ward in the City of
Chicago has not been a determining factor with respect to park
facilities and programs within the ward.
65. Alvin Bielak testified for defendants. He is the
assistant supervisor of the Repair and Construction Department
of the Park District. This department is divided into four
geographical divisions of the City of Chicago: South, North,
West and Central. Tradesmen at the locations service parks
within their division. The number of tradesmen within each
area is as follows: South—103; North—100; West— 103; Cen-
tral—60.
66. Park Supervisors are responsible for informing the
Recreation and Repair and Construction Departments of any
condition within their parks which is in disrepair. In 1981. the
Repair and Construction Department received approximately
2,000 written requests from park personnel and approximately
15,000 telephone orders for repairs from park personnel and
the public. There is a backlog of repair requests in each of the
repair areas due to a manpower shortage. The Department’s
first priority is the repair or removal of dangerous conditions.
67. Photographs submitted by plaintiffs show certain
sections of some of the alleged “Black” parks and depict
conditions of disrepair and vandalism. Many of the photo-
graphs depict scenes which occur on a frequent basis in the
parks (i.e., glass or trash on the ground). It is not possible for
District to address such problems as fast as they occur. District
attempts to make repairs in each of its areas to the fullest extent
App. 3-16
of its available manpower. Photographs tendered by the
defendants show repairs and depict sections of parks not shown
by plaintiffs’ photographs.
68. Many of the photographs submitted by plaintiffs do
not depict property controlled and maintained by the Park
District. The Chicago Housing Authority and Board of Educa-
tion are responsible for such property.
69. Plaintiffs submitted several photographs concerning
Douglas Park. Several of the photographs depicted scenes of
disrepair to a playground area. Testimony and other photo-
graphs reveal that the disrepair was due to emergency construc-
tion on the parks property; and that three other playgrounds in
the park, in excellent condition, were available to park users.
The Douglas Park photographs also depict conditions within a
refuse dump which is maintained there. Similar dumps are
maintained at Montrose and Lincoln parks. The dumps are
only for the use of authorized Park District personnel.
70. Taken in its entirety, the photographic evidence and
testimony offered by the plaintiffs and the defendants does not
establish that race is a determining factor with respect to the
maintenance and repairs of parks.
71. Jerome McKinney testified on behalf of defendants.
McKinney is the Director of Safety of the Park District. His
department is divided into three geographic areas and
McKinney’s staff includes three park inspectors. The Depart-
ment of Safety maintains all reports of accidents within the
parks. McKinney reviewed the number of accident reports filed
in 1980 and 1981 for White parks ( parks in wards where the
population was 80% or more *White’’), “Black” parks ( parks
in wards where the population is 80% or more “Black”) and
other parks.
72. In 1980, there were 307 accidents reported in “Black
parks”, 589 reported in “White parks” and 876 in other parks
App. 3-17
( parks other than 80 Black or White). In 1981, there were 243
reported in “Black parks”, 741 in “White parks” and 739 in
other parks.
73. Terrence Barella, the director of the Department of
Budget and Management of the Park District, was called by
Respondents. His department compiles data for the budget
and drafts the budget. The budget is the subject of public
hearings and is approved by the vote of the Board of Commis-
sioners.
74. The 1982 budget of the Park District is not a park-by-
park type of budget. The budgets in effect for 1979, 1980 and
1981 were similar in form to the 1982 budget.
75. The 1982 budget of the Park District is in conformity
with Illinois law. The statute also requires that budget prepara-
tions begin in the spring of the year before the budget is to be tn
effect.
76. The Comptroller of the Park District implements the
budget and assures that no expenditure is made which is not
expressed by the budget.
77. Race has not been mentioned in connection with any
of the written or verbal preparations of the budget.
78. A park-by-park budget for 1982 would not be
accurate. That type of budget would be inflexible and impracti-
cal as it would require the Park District to allocate a specific
amount of money and other resources to each of its parks
without regard for unforeseen developments. The same prob-
lems would exist for the “major park’ budget which was
suggested by Lavern Kron, a witness for plaintiffs.
79. If the 1982 budget of the Chicago Park District were
halted or restrained in any way, all allocations would be frozen.
All operations of the Park District would cease. The Park
District and the public would suffer irreparable harm.
App. 3-18
80. There is evidence in the record consisting of the
deposition testimony of Commissioner lola McGowan who
testified concerning her |2-point plan for upgrading the parks.
Her i2-point program was not addressed to discrimination.
She also gave her views on the problems which would be
encountered with a per-park budget.
81. Theodore Jones was called as the court’s witness.
During his tenure as a Commissioner, Mr. Jones attended most
meetings of the Park District Board. He is personally familiar
with several parks. With respect to personnel, he initiated and
won approval off an affirmative action employment program.
He testified concerning the responsiveness of the Park District
Board to his suggestions which included capital improvements
at the South Shore Country Club and Jackson Park, a golf
driving range om the South Side, funding for the DuSable
Museum of African/American History, and work at the 3lst
Street Beach.
II. Conclusions of Law
!. This court has jurisdiction over the parties and subject
matter of this swit under 28 U.S.C. § 1343(3) and 42 U.S.C.
§ 1983.
2. The gist of plaintiffs’ claims in this case is that
defendants have subjected them to invidious discrimination,
intentionally on the ground of race, in the allocation of
resources for parks within the Chicago Park District system.
“Determining whether invidious discriminatory purpose was a
motivating factor [in defendants’ administration of the park
system] demandis a sensitive inquiry into such circumstantial
and direct evidemce of intent as may be available.” Village of
Arlington Heights v. Metropolitan Housing Development, 429
U.S. 252, 266 (1977). Making this kind of determination
requires the mosit careful consideration of which this court is
capable. See Holt v. Sarver, 309 F.Supp. 362, 365 (E.D. Ark.
1970). This court has given the case this kind of consideration:
it has furnished plaintiffs with every possible opportunity to
App. 3-19
present evidence which would make the showing required for
issuance of preliminary injunctive relief. The court has con-
stantly borne in mind that persons complaining as do plaintiffs
in this case, are often faced with insurmountable difficulties of
proof. The record of these proceedings reflect the latitude that
has been given plaintiffs and their counsel.
3. The preliminary injunction that plaintiffs seek is a
mandatory one. Defendants perform one of the most important
public functions discharged by any group of state officials
within the jurisdiction of this court. They administer a munici-
pal recreational system that contains 574 parks, playgrounds
and playlots of various sizes in the second largest city of this
country. Judges of state and federal courts generally say that a
mandatory injunction against public officials is an extraordinary
remedy reserved only for the extraordinary case.
4. When this court is asked to decide whether to issue a
preliminary injunction, it must consider four elements: One.
whether the plaintiff has an adequate remedy at law or will
otherwise be irreparably harmed if the injunction does not
issue. Two, whether the threatened injury to the plaintiff
outweighs the threatened harm that the injunction may inflict
on the defendants. Three, whether the plainuff has at least a
reasonable likelihood of succeeding on the merits at trial. And
four, whether the granting of the preliminary injunction will
disserve the public interests. Atari, Inc. v. North American
Phillips Consumer Electronics Corp., 672 F.2d 607, 613 (7th
Cir. 1982). The party applying for preliminary injunctive relief
has the burden of persuasion as to all of these prerequisites.
Fox Valley Harvester, Inc. v. A. O. Smith Harvestone Products,
Inc., 545 F.2d 1096, 1097 (7th Cir. 1976): see Dr. Martin
Luther King, Jr. Movement, Inc. v. City of Chicago, 435 F.Supp.
1289 (N.D. Ill. 1977).
5. As to the first prerequisite, it is clear that plaintiffs,
assuming they have a claim on which relief can be granted. do
not have an adequate remedy at law. However, there has not
App. 3-20
been any testimony by a plaintiff park user establishing how he
or she would be irreparably harmed if an injunction does not
issue in this case.
6. As to the second prerequisite, it is clea, from the
evidence in this case that the injury to the plaintiffs does not
outweigh the threatened harm an injunction may inflict on
defendants. They are public officials entrusted with the respon-
sibility of administering a city-wide park system. The injury to
them that would flow from an injunction is incalculable.
7. From the evidence this court has heard, applying to it
the tests of credibility and weighing all of it carefuily, it does
not appear that plaintiffs have at least a reasonable likelihood
of success on the merits at trial. The park survey which
plaintiffs’ lawyer obtained is not credible evidence; it is not
probative; it does not show that plaintiffs are likely to recover in
this case. This court found it necessary to call as its witness, Mr.
Theodore Jones, a member of the Negro race, a civic leader in
the Negro community of Chicago, a former president of the
Chicago Branch, National Association for the Advancement of
Colored People. Mr. Jones was neither deposed nor inter-
viewed by the plaintiffs prior to the hearing of the motion for
preliminary injunction. This court concludes in evaluating Mr
Jones’ tesumony that he would have disclosed, as candidly as
he testified, any basis that would support the plaintiffs in this
case. He did not. Taking his testimony, together with all of the
other evidence this court has heard, the court is satisfied that
there is very little likelihood of plaintiff succeeding on the merits
at trial in this case.
8. As to the fourth prerequisite, it is evident that in this
case the granting of a preliminary injunction will disserve the
public interest. Such relief granted plaintiffs would paralyze the
Chicago Park System; it would disrupt one of the most impor-
tant sources of public recreation in this great city of Chicago.
Plaintiffs have not established justification for such injunctive
relief that would have this kind of impact on the public interest.
App. 3-21
9. Based on these conclusions of law, which conclusions
are supported by the findings of fact this court has made, an
appropriate order will be entered denying plaintiffs’ motion for
a preliminary injunction.
So ordered,
/s/ GEORGE N. LEIGHTON
George N. Leighton,
United States District Judge
Dated: SEP 30 1982
App. 4-1
APPENDIX 4
IN THE UNITED STaTES District COURT
For the Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, et al.,
Plaintiffs,
VS. No. 79 C 2242
CHICAGO Park DIsTRICT, et al.,
Defendants.
MOTION FOR DISQUALIFICATION OF JUDGE
DUE TO BIAS OR PREJUDICE PURSUANT TO
28 U.S.C. SECTION 144
Plaintiff, RENEE’ BRADFORD, files herewith her affida-
vit as required by Title 28, United States Code, Section 144, to
show that the HONORABLE JUDGE GEORGE N. LEIGH-
TON has a personal bias or prejudice against her, or a bias in
favor of the defendants herein.
Based thereon, plainuff RENEE’ BRADFORD respect-
fully moves that the HONORABLE JUDGE GEORGE N.
LEIGHTON proceed no further herein and that another judge
be assigned to both hear this motion and the subsequent
proceedings herein.
BY: /s/ Renee’ Bradford
Plainuff, RENEE” BRADFORD
SUBSCRIBED AND SWORN TO
before me this 10 day
of November, 1982
/s/_ Aldus S. Mitchell
Notary Public
App. 4-2
STATE OF ILLINOIS
COUNTY OF COOK
AFFIDAVIT OF RENEE’ BRADFORD,
PLAINTIFF, IN SUPPORT OF MOTION
TO DISQUALIFY JUDGE
FOR BIAS OR PREJUDICE PURSUANT TO
28 U.S.C. SECTION 144
I, RENEE’ BRADFORD, being duly sworn, say:
1. | am one of the plaintiffs in the lawsuit, SILAS J.
ALEXANDER, ET AL., VS. CHICAGO PARK DISTRICT,
ET AL.
2. | am informed and believe, and based on such informa-
tion and belief, allege that the HONORABLE JUDGE
GEORGE N. LEIGHTON, the judge before whom this cause is
pending, has a personal bias or prejudice against me, or a bias
in favor of the defendants herein.
3. The facts and reasons for the belief that such bias or
prejudice exists are set forth in the affidavits of EARL B.
DICKERSON, LAWRENCE KENNON, FAITH RICH, and
TIMUEL BLACK which are attached hereto and made a part
hereof.
BY: /s/ Renee’ Bradford
Plaintiff, RENEE’ BRADFORD
« SUBSCRIBED AND SWORN TO
before me this 10th day
of November, 1982
/s/ Aldus S. Mitchell
Notary Public
App. 4-3
CERTIFICATE OF COUNSEL
I, RUFUS COOK, lead counsel herein, in accordance with
the provisions of Title 28, U.S.C. Section 144 hereby state that
this Motion and the Affidavits in support thereof, and this
Certificate of Counse! are all made in good faith.
BY: /s/ Rufus Cook
Rufus Cook
SUBSCRIBED AND SWORN TO
before me this 10th day
of November, 1982
/s/ Aldus S. Mitchell
Notary Public
App. 4-4
IN THE UNITED States District COURT
For the Northern District of Illinois
Eastern Division
Sicas J. ALEXANDER, et al.,
Plaintiffs,
VS. No. 79 C 2242
CHICAGO Park DISTRICT, et al.,
Defendants.
AFFIDAVIT
I, EARL B. DICKERSON, being first duly sworn, do
hereby depose and say:
1. I am a black lawyer licensed to practice in Illinois,
residing at 4800 South Lake Shore Drive. I graduated with the
A. B. Degree from the University of Illinois in 1914, and
enrolled in the University of Chicago Law School. After service
in the American Expeditionary Force in Europe during the First
World War, I returned to the University of Chicago Law
School, where I graduated in 1920, and was admitted in the
same year to the Illinois Bar. I began the practice of law in
Chicago in 1920, and in that year also became General Counsel
of the Supreme Life Insurance Company. In October, 1955 I
was elected President and Chief Executive Officer of Supreme
Life, which positions I held until 1971, when I became Chair-
man of the Board of Directors, in which position I served until
January, 1973 when, upon retirement, I became Honorary
Chairman of the Board.
In the years from 1920 down to the present day. I have
been active in matters having to do with civil nghts. I served as
a member and acting chairman of President Roosevelt’s first
Fair Employment Practices Commission in 1940. I have served
as President of the National Lawyers’ Guild, and as Chairman
>
App. 4-5
of the Board of Directors of the Chicago Urban League. I was
for more than 25 years, beginning about 1937, a member of the
National Board of Directors of the National Association for the
Advancement of Colored People. I was Chairman of and
worked with the Legal Redress Committee of the Chicago
Branch, N.A.A.C.P. during the decades of the 1930’s, 1940's,
and into the 1950’s. I was counsel in the case of Hansberr v.
Lee, in which the United States Supreme Court struck down
restrictive racial covenants in housing. I served as counsel in
numerous other cases brought by or on behalf of the
N.A.A.C.P. in Chicago and elsewhere.
2. During 1957, Mr. Theodore Jones served under me as
Vice-President and Comptroller of the Supreme Life Insurance
Company and occupied an office next to mine at the Company
Headquarters. As a national board member of the N.A.A.C.P.
residing in Chicago, I was requested, in the fall of 1957, to
recommend a person to serve as the next president of the
Chicago Branch. I called Mr. Jones into my office and inquired,
in the presence of the National Branch Co-ordinator, who was
visiting Chicago at the time, as to whether he would be willing
to serve. Mr. Jones asked to be excused for a moment, and left
the room. Since he appeared to be gone for a long time, I
stepped next door to his office to determine what the trouble
was. I found Mr. Jones engaged in a telephone conversation
with Mr. William Dawson, then Democratic Ward Com-
mitteeman of the Second Ward in Chicago. Mr. Jones, as he
confirmed when the conversation was concluded, had sought
and obtained the approval and support of Mr. Dawson in Mr.
Jones’ effort to become president of the Chicago Branch of the
N.A.A.C.P.
I subsequently attended the Chicago Branch N.A.A.C.P.
election held in the late fall of 1957. I observed present, there
and voting a large number of members of Mr. Dawson’s
Second Ward Organization, who had not theretofore been
App. 4-6
known to me to be members of the N.A.A.C.P. Mr. Jones was
elected that evening as President of the Chicago Branch of the
N.A.A.C.P.
FURTHER AFFIANT SAYETH NOT.
/s/ Earl B. Dickerson
Earl B. Dickerson
SUBSCRIBED AND SWORN TO
before me this 28th day
of October, 1982
/s/ Agnes F. Hales
Notary Public
App. 4-7
IN THE UNITED States District Court
For the Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, et al.,
Plaintiffs,
VS. No. 79 C 2242
CHICAGO PARK DISTRICT, et al.,
Defendants.
AFFIDAVIT
I, FAITH RICH, being first duly sworn, do hereby depose
and say:
|. I have been a member of the National Association for
the Advancement of Colored People continuously since 1945. I
received the B. A. Degree from the University of Vermont in
1928, and the Ph.D. Degree from Bryn Mawr College in 1934.
I am presently retired from employment with the Chicago
Board of Education.
2. For several years prior to 1957 I worked with the west
side and north side units of the N.A.A.C.P., and with the
Chicago Branch, concerning myself in particular with matters
related to education. From 1945 through 1957 I worked with
the city-wide education committee of the Chicago Branch and,
during 1955 to 1957, the north side unit to produce a study
entitled De Facto Segregation in Chicago Public Schools, which
was issued by the Chicago Branch of the N.A.A.C.P. in 1957,
prior to the election of Theodore Jones to the presidency of the
Chicago Branch in late fall, 1957. Two pertinent pages of that
study are attached to this Affidavit. The study, together with
data obtained by the north side unit, supplied the basis for the
Chicago Branch N.A.A.C.P. and its north side unit to confront
the Chicago Board of Education and the City of Chicago, and
App. 4-8
to challenge their published plans for construction and pupil
assigment activities which would increase, rather than decrease,
segregation in the school system, and particularly on the north
side of Chicago. I was personally involved in communications
conducted with the Board of Education and the City in 1956
and 1957 based on the matters substantiated in the study.
Those communications were, through 1957, conducted by the
north side unit with the active support of the Chicago Branch of
the N.A.A.C.P., and had, by December, 1957, progressed to the
point where the N.A.A.C.P.’s representatives, including myself,
and the representatives of the City and the Board of Education,
were tentatively prepared to agree on alternative plans to those
which the N.A.A.C.P. opposed.
After Mr. Jones was elected president of the Chicago
Branch and took office in January, 1958, the support of the
Chicago Branch for continued activity in this area was with-
drawn. When the north side unit sought to continue the effort,
Mr. Jones moved to abolish the unit. The Chicago Board of
Education then proceeded to abandon the negotiations and to
implement its original plans.
In or about 1967, several years after Mr. Jones’ term had
ended, the National Office of the N.A.A.C.P. authorized the
establishment of three coequal Chicago Branches—the south
side, the west side and the north side.
FURTHER AFFIANT SAYETH NOT.
/s/ Faith Rich
Faith Rich ( Dr.)
SUBSCRIBED AND SWORN TO
before me this 29th day
of October, 1982
/s/ Lillian Schean
Notary Public
App. 4-9
IN THE UNITED States District Court
For the Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, et al.,
Plaintiffs,
VS. No. 79 C 2242
CHICAGO PARK DISTRICT, et al.,
Defendants.
AFFIDAVIT
I. LAWRENCE KENNON, being first duly sworn, do
hereby depose and say:
1. 1 am a lawyer licensed to practice in the state of Illinois,
having been admitted to the bar in 1956 after having received
the B.S. and J.D. Degrees from De Paul University. I am
presently a partner in the law firm of WASHINGTON, KEN-
NON, HUNTER and SAMUELS, located at 2600 South
Michigan, Chicago, Illinois.
In the years from 1946 to the present day I have been
involved and active in the civil rights movement. I have been a
member since 1946 of the Chicago Branch of the National
Association for the Advancement of Colored People. I was an
Assistant State’s Attorney of Cook County from 1957 to 1961.
at the end of which time I participated in forming the law firm
of which I am presently a partner. During the years since 1957,
I have represented individuals and organizations involved in
the civil rights struggle, including the N.A.A.C.P., the Co-
Ordinating Council of Community Organizations, the Mis-
sissippi Freedom Democratic Party, the Afro-American Patrol-
man’s League, the American Civil Liberties Union, and others.
App. 4-10
2. I attended the meeting held in the fall of 1957, when
Theodore Jones was elected President of the Chicago Branch,
N.A.A.C.P. Prior to Mr. Jones’ election, the Chicago Branch
and northside, westside and Hyde Park units were actively
involved in dursuing civil rights matters in their respective
spheres, of which several entailed challenges of various types to
actions taken by the Democratic Party and/or the City of
Chicago. Prior to 1958 the units were the action arms of the
Chicago Branch of the N.A.A.C.P., and were for several years
the sources through which the Chicago Branch gathered data
from which to identify areas for action and, once such areas
were identified, the units were the primary source of local
manpower and talent for addressing whatever problem was to
be addressed. The Chicago Branch itself served as the head-
quarters, the central governing body and, through its Legal
Redress Committee, as the mechanism through which the legal
initiatives were taken on behalf of blacks in Chicago. When the
Legal Redress Committee was chaired by Earl B. Dickerson
and his successors, the administration of the Chicago Branch
was not directly connected to the Chicago Democratic Party.
The principal thrust of the Chicago Branch at that time, prior to
1957, was in the area of utilizing the units or their equivalents,
on the one hand, for data-gathering, issue identification, and
direct action, utilizing the Branch and its Legal Redress Com-
mittee, on the other hand, for co-ordination and vindication of
the rights of black people in the courts.
I was Adult Advisor to the westside youth council of the
N.A.A.C.P. in 1957, 1958 and 1959. Immediately prior to the
election of Theodore Jones, prominent among the matters with
which the westside unit and its youth council were concerned
were:
(a) Protest and planned legal action against racial dis-
crimination fostered by the Chicago Board of Educa-
tion and then Superintendent Benjamin Willis, and
the City of Chicago.
App. 4-11
(b) Charges of discrimination and planned legal action
against the City of Chicago and the Chicago Board of
Education for fostering and failing to combat dis-
crimination in the labor unions supplying tradesmen
to city agencies and to the Chicago Board of Educa-
tion.
(c) Demonstrations and protests against the racially dis-
criminatory policies of the Chicago Park District.
With respect to the Chicago Park District in particular, one
of the defendants in the litigation in which this Affidavit is
submitted, the westside unit and its youth council were involved
during the summer of 1958 with demonstrations and protests
against the District triggered by the beatings by whites of
several blacks who had sought to use the facilities at Rainbow
Beach, then a segregated beach located at and south of 75th
Street. We charged the Park District, among other things, with
maintaining racially segregated facilities and failing to provide
protection to black persons seeking to use facilities traditionally
used by whites.
During 1957 the N.A.A.C.P. westside unit, its westside
youth council and other N.A.A.C.P. units were supported by
the Chicago Branch in the principal activities outlined above,
having to do with the City of Chicago and the Chicago Board of
Education and schools discrimination, and the City of Chicago,
the Board of Education, and labor union discrimination. in the
year 1957 the administration of the Chicago Branch N.A.A.C.P.
was headed principally by persons having no apparent ties to
the Chicago Democratic Party.
After the election of Theodore Jones in late fall of 1957,
support of the Chicago Branch for the activities of the westside
unit was withdrawn. Mr. Jones’ election, on information and
belief, was made possible by an agreement made between
himself and William Dawson, under which certain activities of
the Chicago Branch N.A.A.C.P. were to be discontinued by
App. 4-12
Jones and this administration in exchange for which Jones and
his administration were to receive the support of Dawson and
the Democratic Organization. Mr. Dawson was at that time
Ward Committeeman of the 2nd Ward Regular Democratic
Organization, and the publicly acknowledged leader of the 3rd,
4th, and 20th Wards. Mr. Jones named as his administration's
Chairman of the Legal Redress Committee of the Chicago
Branch, and legal adviser to the president, George Leighton,
who, on information and belief, was also connected to the
Democratic Organization in that he had been President of the
Third Ward Regular Democratic Organization, and continued
to be active in the Chicago Democratic Organization.
During 1958, after Mr. Jones’ election, the activities of the
westside unit detailed above received virtually no support from
the Chicago Branch. The process of withdrawal of support by
the Jones administration, which included George Leighton as
legal counsel, resulted in a number of challenges being made
from time to time in N.A.A.C.P. meetings to the legality and
propriety of actions taken by the Jones administration. These
challenges were often referred to and decided in those meetings
by George Leighton, whose opinions consistently favored what-
ever position had been taken by Mr. Jones.
In August, 1958, Theodore Jones moved to abolish the
units of the Chicago Branch. Almost simultaneously, and
contrary to the by-laws and rules of the organization, he (1)
illegally increased the 35-member Executive Committee by 5
persons, (2) illegally “authorized” those 5 newly-appointed
persons to vote on the issue of abolition of the units; (3)
illegally failed to provide notice to the units or their chairmen of
the action to be taken, thus refusing to afford them an
opportunity to be heard. Challenges made to the legality of
these actions were rebuffed, based in part on legal opinions
supplied by George Leighton.
Before the illegal and improper actions to be taken by the
Jones administration were made known to the membership.
App. 4-13
Mr. Jones caused to be published in Chicago and national
publications statements to the effect that the units were to be
abolished to rid the N.A.A.C.P. of “communist influences.” No
evidence was ever produced to support that allegation regard-
ing a single person and, to the best of my knowledge, not one of
the persons active in the units was then or has since been in any
way shown to have been subject to any such influence. By
making that completely unfounded public accusation, however,
for which he had no authority from the Board of Directors, Mr.
Jones and his administration dealt a grievous blow to the
Chicago N.A.A.C.P., and cast aspersions on the character and
reputation of persons who were never afforded the opportunity
to defend themselves, and who were ousted from the organiza-
tion by means of procedures rife with irregularities.
During the two years of Mr. Jones’ Presidency, the Chi-
cago Branch N.A.A.C.P. effectively abandoned opposition to
the discriminatory policies of the City of Chicago and the
Chicago Board of Education, and the president abandoned
support for the efforts then being made to fight the dis-
criminatory practices of the Chicago Park District. Leadership
in these areas was largely assumed by an organization called
the Co-Ordinating Council of Community Organizations,
formed in part to fill the void left by the inaction of the Chicago
Branch N.A.A.C.P. during Mr. Jones’ administration. During
this period, | am aware of no initiatives taken by the organiza-
tion or its Leal Redress Committee, chaired by George Leigh-
ton, to challenge the discriminatory policies of the City of
Chicago or the Chicago Board of Education.
Far from supporting and furthering the interests of black
people, the two-year administration of Theodore Jones resulted
in acts consistently inimical to the interests of black people,
including abandonment of the initiatives theretofore begun
against agencies of local government, violation of the by-laws
and rules of the organization, abolition of the units, and a
App. 4-14
cessation of the traditional role of the Legal Redress Com-
mittee—vindication of the legal rights of blacks. I, and many
others who were active in the Chicago Branch N.A.A.C.P. and
its units during 1957-1959, seriously dispute the credibility of
Theodore Jones and those in power during his administration
as persons seriously concerned with furthering the interests of
black people.
FURTHER AFFIANT SAYETH NOT.
/s/ Lawrence Kennon
Lawrence Kennon
SUBSCRIBED AND SWORN TO
before me this 3 day
of November, 1982
/s/_ Aldus S. Mitchel:
Notary Public
App. 4-15
IN THE UNITED STATES DistrRicT COURT
For the Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, Et. AIl.,
Plaintiffs,
VS. No. 79 C 2242
CHICAGO ParRK DistTrRIcT, Et Al.,
Defendants.
AFFIDAVIT
I, TIMUEL D. BLACK, being first duly sworn, hereby
depose and say:
1. I am a resident of Chicago, Illinois. I received the B.A.
Degree from Roosevelt University in 1952, and the M.A.
Degree from the University of Chicago in 1954, after which
time I completed all classwork requirements for the PH.D
Degree in Educational Administration at the University of
Chicago. I have taught in the public schools of Gary, Indiana
and Chicago, Illinois. I served as Assistant Director of the
National Teacher Corps, and have served as a Dean with the
City Colleges of Chicago, as Vice President of Academic Affairs
at Olive-Harvey College, and as Director of Community Affairs
for the City Colleges of Chicago. I am currently serving as full
Professor of Social Sciences at Loop College.
I have served and presently serve as a member oj the
Board of Directors and the Executive Committee of the Chi-
cago Branch of the American Civil Liberties Union: as a
member of the National Board of Directors of Americans for
Democratic Action; as Board Member of the Independent
Voters of Illinois; as Vice-President of the Chicago-Area AI-
liance of Black School Educators, and as a member of the
Board of Directors of Friends of The Parks.
App. 4-16
I have read the Affidavit signed by Lawrence Kennon
relative to this litigation. I have personal knowledge of the
events described on pages 2 through 7 thereof, and would
testify to substantially the same effect if I were called as a
witness in the case.
I also attended the fall, 1957 meeting of the Chicago
Branch N.A.A.C.P. at which Theodore Jones was elected
president. Aside from precinct workers and captains from the
Second Ward Organization of which William Dawson was
committeeman, I saw precinct captains and workers from the
3rd, 4th and 20th Wards, all at that time publicly acknowiedg-
ed to be under the leadership of William Dawson.
In addition to the matters related in the Kennon Affidavit,
I was one of several persons who sought, while Theodore Jones
was President and George Leighton was Legal Redress Com-
mittee Chairman of the Chicago Branch N.A.A.C.P. to have the
organization fulfill one of its traditional roles by moving legally
against the City of Chicago and the Chicago Board of Educa-
tion to remedy discrimination against blacks. In particular, in
1957 and 1958 we sought, in the wake of the decision of the
United States Supreme Court in Brown v. Board of Education,
to have the N.A.A.C.P. Legal Redress Committee seek the
cessation of segregation in the Chicago Public Schools. We
were rebuffed by Mr. Leighton and Mr. Jones.
I and others also sought in 1957 and 1958 to have the
N.A.A.C.P. and the Legal Redress Committee press the City of
Chicago legally on the issue of housing segregation. Again, we
were refused by Mr. Leighton and Mr. Jones.
The events surrounding the election of Mr. Jones in 1957
and, with respect to matters involving any challenge to City
Government and/or the Democratic Party, the subsequent
inaction of the N.A.A.C.P. and its Legal Redress Committee.
were the result of a deal whereby the Chicago Branch
N.A.A.C.P. became a captive of the Democratic Party. The
App. 4-17
actions taken by Theodore Jones and George Leighton during
1957, 1958 and 1959 pitted the leadership of the Organization
against its members, and were opposed to the interests of black
people and the Organization itself. On the basis of the events
known to me, neither of those individuals possesses any credi-
bility as a spokesman for the interests of black people. Mr.
Jones’ actions as a member of the Board of Commissioners of
the Chicago Park District, which I have observed, are consistent
with the actions and positions taken by him in 1957-59 in the
N.A.A.C.P., where, as with the Park District, he and George
Leighton served the interests of the Cook County Democratic
Party.
FURTHER AFFIANT SAYETH NOT.
/s/ Timuel D. Black
Timuel D. Black
SUBSCRIBED AND SWORN TO
before me this 3rd day
of November, 1982
/s/_ Lillian Schean
Notary Public
[Memorandum Of Law Was Not Included ]
App. 4-18
IN THE UNITED StaTes District COURT
For the Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, Et Al.,
Plaintiffs,
VS. No: 79 C 2242
CHICAGO Park District, Et Al.,
Defendants.
MOTION FOR DISQUALIFICATION OF JUDGE
PURSUANT TO 28 U.S.C. SECTION 455 (a)
Plaintiff, RENEE’ BRADFORD, shows that the HONOR-
ABLE JUDGE GEORGE N. LEIGHTON, is disqualified from
presiding as judge at the trial of the above-numbered and
entitled cause under the provisions of 28 U.S.C., Section 455(a)
because his impartiality might reasonably be questioned, as
more fully set forth in the affidavit attached hereto and made a
part hereof.
Wherefore, plaintiff, RENEE’ BRADFORD, moves that
the HONORABLE JUDGE GEORGE N. LEIGHTON declare
himself disqualified to sit on the hearing of this cause and that
another judge be assigned to hear motion and action.
/s/ Renee’ Bradford
Plaintiff, RENEE’ BRADFORD
SUBSCRIBED AND SWORN TO
before me this !Oth day
of November, 1982
/s/ Aldus S. Mitchell
Notary Public
App. 4-19
STATE OF ILLINOIS e
‘COUNTY OF COOK 3
AFFIDAVIT IN SUPPORT OF MOTION
FOR DISQUALIFICATION OF JUDGE
PURSUANT TO TITLE 28 U.S.C. SECTION 455(a)
I, RENEE’ BRADFORD, being duly sworn say:
1. I am one of the plaintiffs in the lawsuit, SJLAS J.
ALEXANDER, ET AL., v. CHICAGO PARK DISTRICT, ET
AL.
2. I am informed and believe, and based on such
inforrnation and belief, allege that JUDGE GEORGE N.
LEIGHTON'’S “impartiality might reasonably be questioned”,
and he is therefore disqualified to act in this cause under the
provisions of Title 28, U.S.C. Section 455(a).
3. The facts and reasons for the belief that such bias or
prejudice exists are set forth in the Affidavits of EARL B.
DICKERSON, FAITH RICH, LAWRENCE KENNON and
TIMUEL BLACK which are attached hereto, incorporated by
reference herein and made a part hereof.
/s/ Renee’ Bradford
Plaintiff, RENEE’ BRADFORD
SUBSCRIBED AND SWORN TO
before me this 10 day
of November, 1982
/s/ Aldus S. Mitchell
Notary Public
[REFER TO AFFIDAVITS SUPPORTING § 144
MOTION SET FORTH AS EXHIBIT 3A;
[MEMORANDUM OF LAW NOT INCLUDED]
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App. 5-1
APPENDIX 5
UNITED STATES District CouRT
Northern District of Illinois
Eastern Division
Name of Presiding Judge, Honorable George N. Leighton
Cause No. 79 C 2242 Date January 7, 1983
Title of Cause Silas J. Alexander, et al. v. Chicago Park
District, et al
Brief Statement of Motion Order ruling on motions to transfer
disqualification proceedings and to recuse the court under 28
U.S.C. Sections 144 and 455(a)
The rules of this court require counsel to furnish the
names of all parties entitled to notice of the entry of —
an order and the names and addresses of their
attorneys. Please do this immediately below (sepe-
rate lists may be appended ).
Names and Addresses of moving counsel
Representing
4
Names and Addresses of other counsel entitled to notice and
names of parties they represent.
The motions of plaintiff Renee Bradford for transfer of
disqualification proceedings to another judge of this court, and
to recuse the court pursuant to 28 U.S.C. Sections 144 and
455(a) are denied for the reasons stated in the Memorandum
filed herewith.
Leighton, J.
App. 5-2
IN THE UNitED States District Court
Northern District of Illinois
Eastern Division
Sitas J. ALEXANDER, et al., ; No. 79 C 2242
ne Before the
vs. S Honorable
George N. Leighton
United States
District Judge
CHICAGO ParK DISTRICT, et al.,
Defendants. ;
Memorandum
Relying on 28 U.S.C. §§ 144 and 455(a), Renee Bradford,
one of 35 Negro and Hispanic plaintiffs in this class suit, has
filed two motions seeking to disqualify the court from further
participation in this case. Briefs and memoranda have been
filed; and from the contentions of the parties, two issues are
presented. First, whether under the circumstances of this case,
the disqualification motions should be transferred for hearing to
another judge of this court. Second, if there is no transfer,
whether the affidavits in support of the motions are legally
sufficient and timely.
After considering the question of transfer, the motions, the
affidavits supporting them, the record of these proceedings, and
applying the controlling principles of law, this court concludes
that transfer of the disqualification motions to another judge of
this court is not warranted; and that the affidavits are neither
timely nor sufficient. Therefore, for the following reasons, the
motions to transfer and to disqualify the court are denied.
This suit was filed on June |. 1979 by Dorothy Ware, as
the sole plainuff. Suing under 42 U.S.C. §§ 1983 and 1988, she
alleged in a three-count complaint that the defendants Chicago
App. 5-3
Park District, its Attorney and Agent, its Conmimissioners from
1976 to 1979, and its General Superintendent, were liable for
the deceit and fraud that deprived her of property interests in a
certificate of sale assigned to her by the purchaser at a
foreclosure of delinquent real estate taxes. Ms. Ware alleged
that the real estate in question was a walled vacant lot at 5017
South Ellis Avenue in the city of Chicago that had a value of
$350,000. She did not purport to represent a class; ner did she
allege any of racial other invidious discrimination by defen-
dants. She prayed for injunctive relief, damages actual and
punitive, and attorney's fees. The lawyer who filed her suit was
Mr. Rufus Cook, who had also represented her in the state
court proceedings which she described as a bitter and acri-
monious dispute. Summons issued, defendants were personally
served, they appeared, moved for and obtained an extension
until July 5, 1979 to answer or otherwise plead to the com-
plaint.
Before any defendant had answered, the amended com-
plaint which is now the pleading in this case was filed. Silas J.
Alexander was the lead plaintiff; Dorothy Ware and Renee
Bradford were among the other 34 Negroes and Hispanics who
alleged they were suing on behalf of themselves and others
similarly situated, “‘all individual black, Latino or poor resi-
dents of the City of Chicago.” In Counts I through IV and VII,
plaintiffs alleged race discrimination in the allocation of Chi-
cago Park District resources by defendants, race discrimination
in employment practices in park district facilities, and race
discrimination in the availability to Negroes and Hispanics of
adequate protection in parks administered by defendants. They
said that their claims arose under the Fourteenth Amendment
to the Constitution of the United States, Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000( a), et. seg., and 42 U.S.C.
§ 1983. In Counts V and VI, Ms. Ware restated the claims she
had made in her earlier complaint; the defendants were the
same ones she had originally named with the addition of two
Commissioners who had taken office early in 1979.
App. 5-4
Thereafter, the parties proceeded with pretrial motions.
Plaintiffs moved for class certification, with defined subclasses.
Defendants moved to dismiss the amended complaint. The
motions were set on briefing schedules, with an order that
stayed discovery to await the court’s rulings. Ultimately,
defendants’ motion was granted only as to the counts in which
Dorothy Ware reasserted the claims she had made in her
original complaint; thus, Counts I through IV and VII of the
amended complaint remained for defendants to answer. Over
defendants’ strenuous and persistent objections, plaintiffs’ mo-
tion to certify the class, and define subclasses, was granted. The
case then entered the stage of discovery proceedings.
The discovery demands of the parties on one another
began on July 30, 1979. Interrogatories were filed under the
rules; motions for production of documents were made.
Motions to compel production and answers were cross-filed.
The intensity of the discovery disagreements required the court
to refer these pretrial matters to a magistrate. This was done;
and later, status reports were made to the court. An appeal
from a ruling of the magistrate was taken to this court by
defendants; and after hearing the parties, the magistrate’s
ruling which awarded plaintiffs attorney’s fees in one of the
discovery disputes was affirmed.
On December 2, 1981, plaintiffs filed a verified motion for
a preliminary injunction in which they asked this court to
immediately restrain and enjoin defendants from adopting or
seeking to adopt any budget, pian or scheme for the ex-
penditure of public funds used for park purposes which faiis to
provide for substantially equal allocation of funds “to park
facilities without regard to race, color or ethnic derivation of the
users of the park facilities, or of the persons resident in the
neighborhoods wherein the said facilities are located.”” They
prayed for an injunction restraining defendants from adopting
any plan or scheme for the expenditure of public funds which
“fails to show on a per park basis the sums to be expended, in
such fashion as to omit determination of whether and to what
App. 5-5
extent black and Latino parks are discriminated against in
terms of allocation of funds, in violation of the fourteenth
amendment to the Constitution of the United States and the
Illinois Constitution [sic].”
Defendants objected to the motion. They argued that
plaintiffs had filed their amended complaint in July 1979; that
defendants, without any action by plaintiffs, had adopted
budgets for the years 1980 and 1981; that the park district’s
1982 budget was scheduled for public hearing on December 10,
1981, and was scheduled for consideration by its Commission-
ers on or before December 22. Therefore, defendants insisted
that plaintiffs’ motion for a preliminary injunction was not
timely and did not deserve a hearing.
This court overruled defendant’s objections and set the
motion for a day certain. The hearing began on December 29,
i981. Three days were devoted to the taking of evidence; and
at the end of that period, counsel for the plaintiffs requested
that the matter be continued to allow presentation of other
evidence, including a witness who had to travel a great distance
in order to appear before this court. The request was granted,
the matter was continued; and then, for various reasons, some a
conflict in this court’s trial schedule, others the inability of
either plaintiffs’ counsel or counsel for defendants to be in court,
the hearing extended over seven additional court sessions.
When plaintiffs rested their case in chief. defendants moved for
a direct finding in their favor; this court denied the motion and
required them to introduce evidence.
One of the defendants in this case is Mr. Theodore Jones
who until early in 1979 was a Chicago Park District Commis-
sioner. He is a Negro, well-known in Chicago as a businessman
who for many years has been active in the civic affairs of the
Negro community of the city. This judge, when he was a
practicing lawyer and also active in the civic affairs of Chicago,
became acquainted with Mr. Jones. In a general way, they
App. 5-6
were co-workers in many civic activities, all having as their
purpose the eradication of racism in the life of the American
Negro in the city of Chicago.
On perhaps two social occasions, this judge and his wife
visited the home of Mr. and Mrs. Jones. In 1957 and 1958, Mr.
Jones was elected president of the Chicago Branch, National
Association for the Advancement of Colored People. It is well
known that in both state and federal levels, Mr. Jones has
worked in and with private organizations and public agencies
whose aims are the prohibition and elimination of race dis-
crimination against Negroes in work opportunities.
When the lawyers for the parties informed the court that
they were about to conclude presentation of evidence in the
preliminary injunction proceedings, it inquired if either of them
was going to call Mr. Jones as a witness. Both parties disclosed
that they did not intend to call him. The court, for the record,
revealed its acquaintance with Mr. Jones and expressed the
desire to hear from him. Because he was a Chicago park
district Commissioner, a citizen who has been active in the
Negro community of Chicago, this court believed that Mr.
Jones’ testimony would assist it in resolving the controversy
presented by plaintiffs’ motion for a preliminary injunction. As
a consequence of the court’s colloquy with counsel, Mr. Jones
was informed about the court’s request and he appeared. He
was initia!ly questioned by the court. His testimony covered his
personal background and his knowledge of the policies of the
Chicago Park District.
Then, after hearing all the evidence which the parties had
to offer, and making scheduling accommodations for them, the
court heard their counsel in oral argument. It invited them to
propose findings of fact, suggest conclusions of law, and
support their respective positions with post-trial briefs. The
matter was set for ruling; and on September 30, 1982 the court
made its findings of fact, and reached its conclusions of law.
App. 5-7
One of the findings was that:
Theodore Jones was called as the court’s witness.
During his tenure as a [ Park District] Commissioner, Mr.
Jones attended most meetings of the Park District Board.
He is personally familiar with several parks. With respect
to personnel, he initiated and won approval of an affirma-
tive action employment program. He testified concerning
the responsiveness of the Park District Board to his
suggestions which included capital improvements at the
South Shore Country Club and Jackson Park, a golf
driving range on the South Side, funding for the DeSable
Museum of African American History, and work at the
31st Street Beach.
Concerning these facts, the court concluded, in part, that:
[in his testimony Mr. Jones] would have disclosed, as
candidly as he testified, any basis that would support the
plaintiffs in this case. He did not. Taking his testimony,
together with all the other evidence this court has heard,
the court is satisfied that there is very little likelihood of
plaintiffs succeeding on the merits at trial in this case.
Accordingly, plaintiffs’ motion for preliminary injunctive relief
was dented.
Renee Bradford was not a witness during the preliminary
injunction proceedings; nor did she appear in court either
before or during the hearing of the motion. She has never been
before this court; and her affidavits do not contain any aver-
ment which would show that she personally knows this judge.
or that he knows her. She does not claim any experience from
which it could reasonably be inferred that this judge has ever
had the occasion to manifest any feeling of prejudice toward
her personally. It does not appear either from any affidavit,
claim, or reference to any portion of the record, that this judge
has ever said anything to or about Ms. Bradford.
However, on November 12, 1982, she filed a motion for
disqualification of judge due to bias or prejudice pursuant to 28
U.S.C. § 144, saying that the court “has a personal bias or
App. 5-8
prejudice against her, or bias in favor of the defendants
herein.”” She moved that this court “proceed no further herein
and that another judge be assigned to both hear this motion
and the subsequent proceedings herein.” On the same day, she
filed a motion for disqualification of judge pursuant to 28
U.S.C. § 455(a) saying that this judge is disqualified from
presiding at the trial of the above-numbered and entitled cause
“under the provisions of 28 U.S.C. § 455(a) because his
impartiality might reasonably be questioned, as more fully set
forth in the affidavit attached hereto and made a part hereof.”
She moved that this judge “declare himself disqualified to sit on
the hearing of this cause and that another judge be assigned to
hear this motion and action.” The affidavit supporting her
Section 144 motion is as follows:
I, Renee Bradford, being duly sworn, say:
1. I am one of the plaintiffs in the lawsuit, Silas J.
Alexander, et al v. Chicago Park District, et al.
2. I am informed and believe, and based on such
information and believe, allege that the Honorable George
N. Leighton, the judge before whom this cause is pending,
has a personal bias or prejudice against me, or a bias in
favor of the defeiudants herein.
3. The facts and reasons for the belief that such bias
or prejudice exists are set forth in the affidavits of Earl B.
Dickerson, Lawrence Kennon, Faith Rich, and Timuel
Black, which are attached hereto and made a part hereof.
The following is her affidavit in support of the motion
under 28 U.S.C § 455(a):
i, Renee Bradord, being duly sworn, say:
|. I am one of the plaintiffs in the lawsuit, Si/as J.
Alexander, et al. v. Chicago Park District, et al.
2. I am informed and believe, and based on such
information and belief, allege that Judge George N.
Leighton’s ‘impartiality might reasonably be questioned’,
and he is therefore disqualified to act in this cause under
the provisions of Title 28, U.S.C. § 455(a).
App. 5-9
3. The facts and reasons for the belief that such bias
or prejudice exists are set forth in the affidavits of Earl B.
Dickerson, Faith Rich, Lawrence Kennon and Timuel
Black, which are attached hereto, incorporated by refer-
ence herein and made a part hereof.
A
We begin with the observation that the mere filing of an
affidavit of prejudice does not require a judge to recuse himself.
On the contrary, a judge has the affirmative duty to inquire into
the legal sufficiency of such an affidavit and not disqualify
himself unnecessarily, particularly, where the request for dis-
qualification was not made at the threshhold of the litigation
and the judge has acquired valuable background of experiences
with the case. National Auto Brokers v. General Motors
Corporation, 572 F.2d 953, 958 (2d Cir. 1978); Raitfort v.
Bradley, 446 F.Supp. 129, 130 (E.D. Pa. 1978).
It has been said by an able and experienced district judge
of this circuit that “{[w]hen a party has filed an affidavit
alleging personal bias or prejudice on the part of a judge before
whom a matter is pending, that judge has the obligation to
determine the legal sufficiency of the affidavit because only
*[h]Je knows fully his own thoughts and feelings in the complete
context of facts alleged.’”’ Matter of Searches Conducted on
March 5, 1980, 497 F.Supp. 1283, 1287 (E.D. Wis. 1980),
quoting Sirica, J., in United States v. Mitchell, 377 F.Supp. 1312
at 1315 (D. D.C. 1974). Consistent with this statement, our
court of appeals has held that when a district judge is presented
with a motion asking for his recusal, he is “entitled to pass upon
the sufficiency of the affidavit, but, of necessity, all factual
allegations [have] to be taken as true.” Action Realty Co. v.
Will, 427 F.2d 843, 844 (7th Cir. 1970): see Berger v. United
States, 255 U.S. 22, 32 (1921). And recently, Judge Aspen of
this court had occasion to say that “[a]lthough judges have, on
occasion, referred the question of their own disqualification to
App. 5-10
another judge for disposition, we think the better procedure in
this case is for the judge presiding over the case to resoive the
motion for disqualification since [he is] in the best position to
appreciate the circumstances surrounding the allegations tn the
affidavits.” U. S. v. Professional Air Traffic Controllers Ore.,
527 F.Supp. 1344, 1352 (N.D. Ill. 1981).
In what is perhaps the latest word on this subject uttered
by any federal court of appeals, the Fifth Circuit, in Chitimacha
Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, i162
(Sth Cir. 1982), pointed out that “[t]he challenged judge is
most familiar with the alleged bias or conflict of interest. He is
in the best position to protect the nonmoving parties from
dilatory tactics.” Then, calling attention to United States v.
Haldeman, 559 F.2d 31, 131 (D.C. Cir. 1976) for the proposi-
tion that submitting recusal motions to fellow judges for
decision is at most permissive, the court went on to say that
“(rjeferring the motion to another judge raises problems of
administrative inconvenience and delay.”
This court agrees. Plaintiffs’ case has been on this court’s
docket since June |, 1979. In the period of about two and a
half years, during which hundreds of orders have been entered,
a preliminary injunction motion has been heard, the court has
acquired a valuable background of experience concerning the
case. It now understands the plaintiffs’ theories and the
contentions made on their behalf by their lawyers. More
importantly, the court knows and understands, at least so it
believes, the lead lawyer for the plaintiffs, Mr. Rufus Cook.
From his demeanor in court, his attitude, and what he has said
orally and in writing, the court has gained the distinct feeling
that he harbors an intense hatred for the defendants and the
lawyers who represent them. Defendants’ lawyers, on the other
hand, never seem to miss an opportunity to respond to Mr.
Cook, in kind, and displaying their own brand of his attitude.
This court fully knows its thoughts and feelings about the
App. 5-I1
plaintiffs, the defendants, and the context of the facts alleged in
the affidavits filed in support of the recusal motions. It knows
the duty owed to all the parties to see that dilatory tactics not be
condoned, that problems of administrative inconvenience not
be raised, and that the case proceed to trial so that justice will
be done in accordance with the law and the evidence.
Under these circumstances, it would be judicial cowardice
of the first order for this court, as moved by plaintuff Renee
Bradford in her two motions, “to proceed no further herein and
that another judge be assigned to hear these motions... .”
Therefore, the disqualification motions will not be transferred
to another judge; instead, this court will discharge its duty and
proceed to determine the timeliness and legal sufficiency of the
affidavits filed in support of the motions to recuse. United
States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978); Action
Realty Co. v. Will, 427 F.2d 843. 844 (7th Cir. 1970); Wright,
Miller & Cooper, Federal Practice and Procedure §3551.
As to the question of timeliness, it should be noticed that
when Congress gave a party in a district court proceeding the
right to move for the recusal of a judge, the first obligation it
imposed on the movant was that he file “a timely. . .affidavit.”
See Act Mar. 3, 1911 c. 231, §31, 36 stat. 1090; 1949 U.S.Code
Cong. Service p.1248; 28 U.S.C. §1944. It is now settled that
this time requirement applies with equal force to a motion
under 28 U.S.C. §455(a). In re: International Business
Machines Corp., 618 F.2d 923, 932 (2d Cir. 1980); Cin of
Cleveland v. Cleveland Elec. Illuminating Co., 503 F.Supp. 368,
379 (N.D. Ohio 1980). Its purpose is to prevent !itigants from
abusing motions to disqualify, using them as dilatory tactics, or
as means to sample the temper of the court before deciding
whether to raise an issue of disqualification. Peckham v.
Ronrico Corp., 288 F.2d 841, 843 (Ist Cir. 1961); see 48A
C.J.S. Judges §136.
App. 5-12
Section 144 provides that the affidavit “shall be filed not
less than ten days before the beginning of the term at which the
proceeding is to be heard... .” This provision, however, is no
longer pertinent because terms in federal district courts have
been abolished, although the procedure still requires that an
affidavit be timely filed. Smith v. Danvo, 441 F.Supp. 171, 175
(N.D. Pa. 1977). And whenever the question is raised, the
inquiry into timeliness, either under Section 144 or Section
455(a), is concerned with the movant’s reasonable diligence in
filing the affidavit. Samuel v. University of Pittsburgh, 395
F.Supp. 1275, 1279 (W.D. Pa. 1975), vacated on other grounds,
538 F.2d 991 (3d Cir. 1976). An affidavit is untimely under
either statute if the affiant, after knowldege of facts showing
supposed bias, has invoked or sought to invoke the court’s
affirmative action on his behalf before claiming prejudice on
the part of the judge. “If the alleged information upon which
the Motion for Disqualification is based was known or know-
able to the movant a considerable period of time prior to the
Motion, then such Motion is untimely.”” Rademacher v. City of
Phoenix, 442 F.Supp. 27, 29 (D. Ariz. 1977). For, as our court
of appeals has said, ‘“‘one must raise the disqualification of the
judge at the earliest moment after knowledge of the facts
demonstrating the basis for such disqualification. United States
v. Patrick, 542 F.2d 381, 390 (7th Cir. 1976).
The records of this case show that on September 3, 1982,
the day Mr. Jones testified, Ms. Bradford’s lead counsel, Mr.
Rufus Cook was in court. This judge, candidly and fully,
disclosed his acquaintance with Mr. Jones and revealed the
importance he attached to the testimony he was about to hear.
The findings of fact and conclusions of law filed on September
30 merely formalized what the court stated from the bench.
And certainly, on September 3, Ms. Bradford and her lawyer
Mr. Cook knew or should have known every detail of the facts
stated in the affidavits of Messrs. Dickerson, Kennon, Black,
and in that of Ms. Rich because what these affiants recite were
App. 5-13
matters of common knowledge in the Negro community of
Chicago, and many of these facts were reported in Chicago
newspapers, and some can be found in public records. For
these reasons, it is specious to argue, as Mr. Cook does on Ms.
Bradford’s behalf, that the significance of the facts attested to
by the affiants were not known until “after the transcript of the
relevant court in order to know commonly known facts and
what is revealed to him, in open court, by a presiding judge.
But more importantly, this argument does not explain why Ms.
Bradford waited until November 12, 1982, more than two
months after the relevant facts were either known or knowable
to her, before she filed her motions for disqualification of the
court. The really honest explanation is that Ms. Bradford and
her lawyer, all the facts being known or knowable to them on
September 3, 1982, waited until this court denied plaintiffs’
motion for a preliminary injunction on September 30, 1982,
and then filed the motions to recuse.
A litigant should not be permitted to use disqualification
motions as a means of “sampling the temper of the court before
deciding whether or not to file an affidavit of prejudice...”
Peckham v. Ronrico Corporation, 288 F.2d 841, 843 (Ist Cir.
1961). “One of the reasons for requiring promptness in filing
the affidavit is that a party, knowing of a ground for requesting
disqualification, cannot be permitted to wait and decide wheth-
er he likes subsequent treatment that he receives.” Jn re United
Shoe Machinery Corporation, 276 F.2d 77, 79 (Ist Cir. 1960).
In City of Cleveland v. Cleveland Elec. Illuminating Co., 503
F.Supp. 368 (N.D. Ohio 1980), the court, citing from another
case, told the movant before it that:
The judicial process can hardiy tolerate the practice of a
litigant with knowledge of circumstances suggesting pos-
sible bias or prejudice holding back, while calling upon the
court for hopefully favorable rulings, and then seeking
recusal when they are not forthcoming. 503 F.Supp. at
381.
App. 5-14
Ms. Bradford must be told the same words. Her affidavits were
not timely filed, and for this reason alone her motions to recuse
should be denied. United States v. International Business
Machines Corp., 539 F.Supp. 473 (S.D. N.Y. 1982); see
Duplan Corporation v. Deering Milliken, Inc., 400 F.Supp. 497
(S. S.C. 1975); Annot. 24 A.L.R.Fed. 290. But there are
additional reasons why her motions cannot be granted.
¢
Section 144 of Title 28, United States Code, provides that:
Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any
adverse party, such judge shall proceed no further therein,
but another judge shall be assigned to hear such proceed-
ing.
The affidavit shall state the facts and the reasons for
the belief that bias or prejudice exists, . . .
When faced with a motion under this statute, the court
focuces on the movant’s affidavit. Chitimacha Tribe of Loui-
siana v. Harry L. Laws Co., 690 F.2d 1157, 1165 (Sth Cir.
i982). It is well settled that the affidavit must be sworn to by a
party to the action, Giebe v. Pence, 431 F.2d 942 (9th Cir.
1970), and not even one by counsel will meet this statutory
requirement. United States ex rel. Wilson v. Coughlin, 472 F.2d
100, 104 (7th Cir. 1973); cf. Paschall v. Mayone, 454 F.Supp.
1289, 1300 (S.D. N.Y. 1978).
The affidavit must identify with particularity time, place,
persons, and circumstances supporting the affiant’s belief of
personal bias against him or in favor of his opponent; and it
must be of sufficient detail so “that the affiant would expose
himself to a charge of perjury, if he were guilty of swearing to
statements that he knew to be false.” Roussel v. Tidelands
Capital Corp., 438 F.Supp. 684, 690 (N.D. Ala. 1977). This
App. 5-15
requirement, and that it be accompanied by counsel’s affidavit
of good faith, are designed to protect the integrity of the
judicial system and prevent abuse of the recusal procedure.
Matter of Searches Conducted on March 5, 1980, 494 F. Supp.
1283, 1288 (E.D. Wisc. 1980).
It has been said that for alleged bias or prejudice to be
sufficient to require recusal, it “must stem from an extra-judicial
source and result in an opinion on ihe merits on some basis
other than what the judge learned from his participation in the
case.” United States v. Grinnell Corp., 384 U.S. 563, 583
(1966); Wilks v. Israel, 627 F.2d 32 (7th Cir. 1980). The
alleged bias or prejudice must be personal and not judicial; it
must bear directly on the current proceeding. Matter of
Searches Conducted on March 5, 1980, 497 F.Supp. 1283, 1288
(E.D. Wisc. 1980). Moreover, the facts alleged in the affidavit
‘““must give fair support to the charge of a bent of mind that
may prevent or impede partiality of judgment.” Berger v.
United States, 255 U.S. 22, 33 (1921). The standard under
Section 144 is that of bias in fact. Parish v. Board of
Commissioners, 524 F.2d 98 (Sth Cir. 1975); Note, Dis-
qualification of Federal Judges for Bias or Prejudice, 46
U.Chi.L.Rev. 236, 243 & n.37, 244 (1978).
It is obvious, from even a cursory examination of it, that
the affidavit with which Ms. Bradford supports her Section 144
motion is legally insufficient. She does not describe any
circumstance which would establish her claim of personal bias
or prejudice by this court against her, or in favor of defendants.
The affidavit consists of the bold assertion that “[t]he facts and
reasons for the belief that such bias or prejudice exists are set
forth in the affidavits of Earl B. Dickerson, Lawrence Kennon.
Faith Rich, and Timuel Black, which are attached hereto and
made a part hereof.”
It happens that none of these affiants is a party to this suit,
nor is it claimed they belong to the certified class. And it has
been held “that the doctrine of incorporation by reference has
App. 5-16
no place in a § 144 affidavit.” Hall v. Burkett, 391 F.Supp. 237,
242 (W.D. Okla. 1975). This holding is mandated by the
requirement that it is “a party to any proceeding in a district
court...” who must make and file a timely and sufficient
affidavit before the statute will become operative. 28 U.S.C.
§ 144. However, since they are being used to bring the
impartiality of this court into question, it is important that these
four affidavits be examined.
A substantial part of each one consists of autobiographical
data which reveal the following concerning each affiant. Mr.
Dickerson states that he is a Negro lawyer, a graduate of the
University of Chicago Law School who, since 1920 and until
January 1973, when he retired, was an insurance company
executive. Throughout his professional life, he has been active
in the civil rights movement. Ms. Rich is a retired Chicago
Board of Education employee, holder of a doctorate from Bryn
Mawr College. Since 1945, she too has been active and
interested in the civil rights field, particuiarly with the Chicago
Branch, NAACP. Mr. Kennon is a Chicago lawyer who since
1946 has been a member of the Chicago Branch, NAACP, and
active with various civil rights organizations in Chicago and in
other parts of the country. Mr. Black is a graduate of Roosevelt
University and holds a master’s degree from the University of
Chicago. He is a doctoral candidate for a degree in educational
administration from the University of Chicago. He has held a
number of academic positions in Chicago institutions of learn-
ing, and presently is full professor of social science at Loop
College.
The gist of Mr. Dickerson’s affidavit is the description of a
conversation that took place between him and Mr. Theodore
Jones in the fall of 1957 when he, Mr. Dickerson, asked Mr.
Jones if he would be willing to serve as president of the Chicago
Branch, NAACP. According to Mr. Dickerson, the occasion
was the presence in his office of the national branch coordinator
of the NAACP. Mr. Jones asked to be excused; and when he
did not return, Mr. Dickerson went to Mr. Jones’ office and
App. 5-17
found him engaged in a telephone conversation with Congress-
man William L. Dawson, then Democratic Committeeman of
the Second Ward in Chicago. Mr. Jones told Mr. Dickerson
that he had sought and obtained the approval and support of
Mr. Dawson in his effort to become president of the Chicago
Branch, NAACP. Subsequently, Mr. Dickerson said he attend-
ed the branch election; he saw present and voting a number of
persons from Mr. Dawson’s Second Ward organization who
had not been known to be members of the NAACP. Mr.
Dickerson concludes his rather short affidavit with the state-
ment that “Mr. Jones was elected that evening as President of
the Chicago Branch of the N.A.A.C.P.”
In her affidavit, Ms. Rich describes her efforts, prior to
1957 working with the Chicago west and northside units of the
NAACP, and with the Chicago Branch, particularly in matters
relating to education. She states that prior to Mr. Jones’
election as president of the Chicago Branch in late fall 1957, the
northside unit produced a study on de facto segregation in
Chicago public schools, and issued by the Chicago Branch. She
says that negotiations by a committee of which she was a
member with the Chicago Board of Education had proceeded
to a point in December 1957 that representatives of the city of
Chicago and the board of education “were tentatively prepared
to agree on alternative plans to those which the N.A.A.C.P.
opposed.” She said that after Mr. Jones was elected and took
office, the Chicago Branch withdrew its support of the activity
in the area in which she had worked. When the northside unit
sought to continue these efforts, says Ms. Rich, Mr. Jones
moved to abolish the unit. Several years after Mr. Jones’ terms
ended, the national office of the NAACP authorized estab-
lishment of three co-equal Chicago Branches, the south, the
west, and the northside branches.
In his affidavit, Mr. Kennon refers to the years in which he
had “represented individuals and organizations involved in the
civil rights struggle, including the N.A.A.C.P..... .” He also
App. 5-18
attended the Chicago Branch election meeting in the fall of
1957 when Mr. Jones was elected president. Mr. Kennon states
that prior to this election, the Chicago Branch and its other
units “were actively involved in pursuing civil rights matters in
their respective spheres, of which several entailed challenges of
various types to actions taken by the Democratic Party and/or
the city of Chicago.” He goes on to aver that prior to 1958 these
units “were the action arms of the Chicago Branch of the
N.A.A.C.P. ...” and were for several years the source of data
gathered by the Chicago Branch for actions in civil rights
matters. Mr. Kennon states that “[t]he principal thrust of the
Chicago Branch at that time, prior to 1957, was in the area of
utilizing the units or their equivalents, on the one hand, for data
gathering, issue identification, and direction action, utilizing the
Branch and its Legal Redress Committee, on the other hand,
for co-ordination and vindication of the rights of black people
in the courts.”
Mr. Kennon then continues his recital of the history of the
NAACP Chicago Branch and his role as an adult adviser to the
West Side Youth Council in 1957, 1958 and 1959. He refers to
the Chicago Park District, one of the defendants in this case,
and states that there were demonstrations and protests in the
summer of 1958 “against the District triggered by the beatings
by whites of several blacks who had sought to use the facilities
at Rainbow Beach, then a segregated beach at the south of 75th
Street.”” He states that {w]e charged the Park District, among
other things, with maintaining racially segregated facilities and
failing to provide protection to black persons seeking to use
facilities traditionally used by whites.”
Then Mr. Kennon refers to Mr. Jones’ administration as
president of the Chicago Branch that began in late fall 1957.
He asserts that the branch’s support of the westside unit was
withdrawn under Mr. Jones. He avers that:
App. 5-19
Mr. Jones’ election, on information and belief, was
made possible by an agreement made between himself and
William Dawson, under which certain activities of the
Chicago Branch N.A.A.C.P. were to be discontinued by
Jones and his administration in exchange for which Jones
and his administration were to receive the support of
Dawson and the Democratic Organization. Mr. Dawson
was at that tme Ward Committeeman of the Second Ward
Regular Democratic Organization, and the publicly ac-
knowledged leader of the third, fourth, and twentieth
wards. Mr. Jones named as his administration’s Chairman
of the Legal Redress Committee of the Chicago Branch,
and legal advisor to the president, George Leighton, who,
on information and belief, was also connected to the
Democratic Organization in that he had been president of
the Third Ward Regular Democratic Organization, and
continued to be active in the Chicago Democratic Organi-
zation.
Mr. Kennon continues with a recital of what happended
within the NAACP in Chicago after Mr. Jones’ election. He
avers that [t]he process of withdrawal of support by the Jones
administration, which included George Leighton as legal coun-
sel, resulted in a number of challenges being made from time to
time in N.A.A.C.P. meetings to the legality and propriety of
actions taken by the Jones administration. These challenges
were often referred to and decided in those meetings by George
Leighton, whose opinions consistently favored whatever posi-
tion had been taken by Mr. Jones.”” The affidavit continues to
recite the disagreements, the philosophical differences that
emerged in the administration of the Chicago Branch, NAACP
during Mr. Jones’ terms as president in 1957 and 1958. Mr.
Kennon concludes his affidavit with the assertion that “I, and
many others who were active in the Chicago Branch
N.A.A.C.P. and its units during 1957-1959, seriously dispute
the credibility of Theodore Jones and those in power during his
administration as persons seriously concerned with furthering
the interests of black people.”
App. 5-20
Mr. Timuel D. Black states in his affidavit that he had read
all Mr. Kennon had said “and would testify to substantially the
same effect if I were called as a witness in the case.” He then
asserts that he also attended the fall 1957 meeting of the
Chicago Branch at which Mr. Jones was elected president. He
says that precinct workers and captains of Mr. Dawson's
political organization were present; these were people who “at
that time publicly acknowledged to be under the leadership of
William Dawson [sic].” Then he says that:
i was one of several persons who sought, while
Theodore Jones was president and George Leighton was
Legal Redress Committee Chairman of the Chicago
Branch N.A.A.C.P. to have the organization fulfill one of
its tradional roles by moving legally against the city of
Chicago and the Chicago Board of Education to remedy
discrimination against blacks. In particular, in 1957 and
1958 we sought, in the wake of the decision of the United
States Supreme Court in Brown v. Board of Education, to
have the N.A.A.C.P. Legal Redress Committee seek the
cessation of segregation in the Chicago public schools. We
were rebuffed by Mr. Leighton and M
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