Opposition Brief — City of Chicago v. Evans

ne Sour, UU.

(9) | = ILED

No. 96-167 OCT 16 ee

— pee oe ON

In The ———

Supreme Court of the United States

October Term, 1996

*

CITY OF CHICAGO,

Petitioner,

v.

SYLVIA EVANS,

Respondent.

+

CITY OF CHICAGO,

Petitioner,

v.

BERTHA BALARK, et al.,

Respondents.

+

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

,

BRIEF OF RESPONDENT, SYLVIA EVANS,

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¥

JoHN BERNARD CASHION

33 North LaSalle Street

Chicago, Illinois 60602

312/368-0191

Attorney for Respondent

Sylvia Evans

TABLE OF CONTENTS

Page

pe NO Re ae eyes 8 vel er ee rere ee ii

STATEMENT OF THE CASE. ..... 2. ccc ctcceceees 1

ARGUMENT: WHY THE PETITION SHOULD NOT

et IRN a io Ges Cine d pub wnceek ibs sh asesde% 2

ie ce | 1 RRR RRR ES Sere eee ene Ae arg we era arene 8

ii

TABLE OF AUTHORITIES

Page

Dunn v. Carey, 808 F.2d 555 (7th Cir. 1986) .......... 5

Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121

we Gels eee pr ee ys oe et ee 3, 4

Helaman v. Sobol, 846 F.Supp. 485 (SDNY 1994) ...4, 5

Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96

L.Ed.2d 658 (1967s 36s caves Cover we eee re ss 3

Kasper v. Board of Election Commissioners, 814

F.2d 332 Win Che, T9567) as cvincnas Pea ai ah hice as 5

Koster v. Perales, 903 F.2d 131 (2d Ciir. 1990)......... 4

Lyte v. Sara Lee Corp., 950 F.2d 101 (2!d Cir. 1991) ..... 4

Missouri v. Jenkins, 491 U.S. 274 (1989).............. 7

Myers v. Gilman Paper Corp., 544 F.2d 837, 550

F.2d 41 (5th Cir. 1977), cert. dis’d, #34 U.S. 801..... 6

Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 102

L.Ed.dd { (968). oe a 3

Rufo v. Inmates of Suffolk County Jail, 502 U.S.

367, 112 S.Ct. 748, 116 L.Ed.2d 867’ (1992)........ 7, 8

Shalala v. Schaefer, 509 U.S. 292, 1133 S.Ct. 2625,

125: L.3id.2d Za (199 6s a eae hte ees 3

Texas State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 489 U.S. 782, 109 S.Ct. 1486,

ic mw eo Be. eer regs eee Pere 3,5

Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992) ..... 3

ee Tear

STATEMENT OF THE CASE

There are four separate opinions of the Court of

Appeals in Evans v. City of Chicago. They are reported at

689 F.2d 1286 (7th Cir. 1982) (EVANS I); 873 F.2d 1007 (7th

Cir. 1989) (EVANS II), 995 F.2d 1393 (7th Cir. 1993) (reh’g

en banc granted and vacated) (EVANS III); and 10 F.3d 474

(7th Cir. 1993) (EVANS IV).

For this appeal, the critical junction is EVANS II.

EVANS I dealt with a trial court finding that there had

been both equal protection and due process violations

and entry of a partial Summary Judgment in favor of the

plaintiff class representatives, leaving open the question

of damages. EVANS I affirmed the equal protection issue,

found it unnecessary to reach the due process issue, and

remanded the due process issue to the trial court for

further proceedings. Thereafter, a consent decree was

entered into on May 31, 1984. The decree remained in

force until EVANS III held that it was appropriate to

vacate the decree because of the decision in EVANS II.

After the entry of the consent decree there was then a

trial on damages. In the trial the plaintiffs introduced

evidence and asked the trial court to confirm the due

process issue, which it did, expressly finding that there

was a due process violation. The trial court entered a

judgment with fit.dings of fact and conclusions of law

and allowing damages to the plaintiff class members.

Prior to trial the parties had entered into a stipulation

containing a formula for payment of damages. The for-

mula was keyed to a computer database which had been

established, and depended upon what findings the trial

court made with respect to a starting point for calculating

interest, and other findings. When the City appealed from

this judgment, EVANS II held that the additional evi-

dence at trial invoked an exception to the “law of the

case” doctrine and thus had reopened the equal protec-

tion issue, and reversed the EVANS I holding on that

issue. With respect to the due process issue, the EVANS II

court noted in a footnote that this issue “has not survived

to this stage of the litigation.” (FN 15 at 873 F.2d 1018) On

this point, never briefed and never argued, the apparent

theory, although unarticulated in EVANS II, was that

plaintiffs should have argued the due process issue in

their Briefs, even though the trial court had ruled in their

favor on it. So the due process issue died and was laid to

rest in an unmarked grave.

There is no question but that after the decision in

EVANS I the due process issue, unresolved at the time,

originally was a basis for the settlement embodied in the

consent decree. EVANS II removed the due process issue

from further consideration in this litigation on the basis

that plaintiffs had mistakenly waived the issue by failing

to raise it on appeal. For that reason, it arguably was

appropriate to hold in EVANS III that without any exis-

ting constitutional violation to support the consent

decree, the contractual aspect of the decree was insuffi-

cient to support its continued existence, and therefore it

was appropriate to vacate the decree.

¢

ARGUMENT: WHY THE PETITION

SHOULD NOT BE GRANTED

There are five recent Supreme Court decisions

involving attorney fee awards under the Federal Civil

Rights Act: Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672,

96 L.Ed.2d 654 (1987); Rhodes v. Stewart, 488 U.S. 1, 109

S.Ct. 202, 102 L.Ed.2d 1 (1988); Texas State Teachers Ass’‘n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103

L.Ed.2d 866 (1989); Farrar v. Hobby, 506 U.S. 103, 113 S.Ct.

566, 121 L.Ed.2d 494 (1992); Shalala v. Schaefer, 509 U.S.

292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).

EVANS IV is but one of a string of decisions in the

lower federal courts which have interpreted these five

Supreme Court decisions in a generally uniform manner.

Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992) involved a

settlement which was modified as a result of the efforts of

certain intervenors. The district court had found that a

“material alteration in the legal relationships of the par-

ties in a manner that Congress sought to promote in

§ 1988 had therefore been effected.” (725 F.Supp. at 1332).

In its decision the Second Circuit observed: (at 965 F.2d

1202)

The fact that a claim has been resolved by settle-

ment, as in this case, does not preclude a finding

that intervenors are prevailing parties; it is plain

that a party may prevail when it vindicates

rights-regardless of whether there is a formal

judgment-through a settlement of consent judg-

ment. See, e.g., Hewitt v. Helms, 482 U.S. 755,

760-61, 107 S.Ct. 2672, 2675-76, 96 L.Ed.2d 654

(1987); Maher v. Gagne, 448 U.S. 122, 129, 100

S.Ct. 2570, 2577, 65 L.Ed.2d 653 (1980); Koster v.

Perales, 903 F.2d 131, 134 (2d Cir. 1990); Senate

Report at 5, reprinted in 1976 U.S. Code Cong. &

Admin.News at 5912.

In Koster v. Perales, 903 F.2d 131 (2d Cir. 1990) plain-

tiffs who obtained a settlement agreement affecting emer-

gency housing were held entitled to fees. And in Heldman

v. Sobol, 846 F.Supp. 285 (SDNY 1994) judgment in favor

of a parent for attorney’s fees was approved although the

parent’s suit was not the “primary trigger” for a change

in the law, but had a definite effect in producing “a

resolution of the dispute which changes the legal rela-

tionship” and the court further stated: (at 846 F.Supp.

288):

The portion of a party’s fees which may be

recovered from the adversary must be calibrated

to reflect the importance of the party’s contribu-

tion to the ultimate result, and the aspects of the

litigation effort which made that contribution.

An all-or-nothing criterion is not to be applied

under these circumstances. See Farrar v. Hobby,

__._:;U.'S. __, 113 S.Ct. 566, 121 L.Ed.2d 494

(1992); Callier, “When the Winning Party is Not

the Prevailing Party,” 66 Tul.L.Rev. 2067 (June

1992). It is increasingly recognized that events

often do not always fit into neat “Yes or No”

categories, and instead may fall on a spectrum

between these extremes. See United States v. Reli-

able Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44

L.Ed.2d 251 (1975); TIAA v. Coaxial Communica-

tions, 799 F.Supp. 16 (S.D.N.Y. 1992); Holmes,

“Law in Science-Science in Law,” 12 Harv.L.Rev.

433 (1899), also in O.W. Holmes, Collected Legal

Papers 210-43 (1921); Trevaskis, “Measure of

Damages for Regulatory Takings,” 3 Probate &

Property No 2 at 17 (ABA Mar./Apr. 1989).

See also, Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir.

1991)

A consent decree, to justify a fee award must meet

certain requirements:

1. The changes achieved by the decree

must be more than “de minimis” or “technical.”

Texas State Teachers Ass'n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 1494, 103

L.Ed.2d 866 (1989) (holding a “prevailing party”

under § 1988 need only succeed on “any signifi-

cant issue” that achieves some of the benefit

sought by the lawsuit).

2. The constitutional claims must be at

least “colorable.” at the time the decree is

entered. In Kasper v. Board of Election Commis-

sioners, 814 F.2d 332, 342 (7th Cir. 1987) the court

speaks of “ . . . a demonstration of at least a

probable violation of that law as a condition to

the entry of that decree.” [In EVANS III the

plurality opinion says: “The decree was prop-

erly supported when the district court entered

the injunction in 1974.” (10 F.3d at 480)]

3. The decree must have a legal basis

which authorized the entity to assent to such an

agreement. Dunn v. Carey, 808 F.2d 555 (7th Cir.

1986)

None of these conditions precedent are lacking in the case

at bar or challenged by the City of Chicago. Although

Heldman v. Sobol, supra, stated that “ . . . events often do

not always fit into neat “Yes or No” categories, and

instead may fall on a spectrum between these extremes”,

the City of Chicago argues for a rule which requires a

consent decree plaintiff to win all future controversies

after the decree entry, or be barred from any fees what-

ever, a sort of ‘all or nothing’ approach. EVANS IV points

out that this approach creates a major problem in fee

awards. If a defendant agrees to settle a civil rights action

in a consent decree, at that point the plaintiff has pre-

vailed. The defendant could have eschewed settlement,

followed the litigation further, and perhaps ultimately

prevailed itself, but did not. After the consent decree

settlement, the plaintiff is entitled to attorneys’ fees relat-

ing, at a minimum, to success in procuring entry of the

decree. At that point, plaintiff’s counsel is entitled to be

paid interim fees, as the EVANS IV court points out. If the

rule argued for by the City of Chicago is adopted, the

effect on the “private attorneys general” aspect of civil

rights litigation would be harsh, even disastrous. Under

the City of Chicago theory, could a defendant argue to the

trial court for a delay in payment of a plaintiff’s attor-

neys’ fees on the basis that some future change in the law,

or in the factual circumstances supporting the decree,

claimed to be perhaps imminent, may be sufficient to

deny payment of interim fees for the work done to obtain

the consent decree? Of course, this sounds like a foolish

argument, because, if some such impending deus ex

machina were waiting just offstage, no sensible defendant

should have settled in the first place. But you can bet

such an argument would be made, and some courts might

go for it. The argument to pay no interim fees may fly

while a consent decree defendant appeals. Can a person

or entity who is party to a consent decree have a change

of heart and directly appeal from its entry? The answer is

probably: Yes. In Myers v. Gilman Paper Corp., 544 F.2d

837, 550 F.2d 41 (5th Cir. 1977), cert. dis’d, 434 U.S. 801, the

court held that injunctive provisions in a consent decree

were adjudicative and immediately appealable under 28

—

U.S.C. § 1292(a)(1). In EVANS III, the author of the plu-

rality opinion speaks of the consent decree in terms of the

City “knuckling under to the inevitable.” (10 F.2d at 476).

This is hardly true if the City has a right to change its

mind and appeal from entry of the decree. And, as stated,

the City could have played out its hand and never settled,

maintaining all rights of appeal and taking every appeals

course open to it without entering into any settlement

whatever. If the appeal were then won by the City on the

issues incorporated in the consent decree, no fees would

have been forthcoming. But that is not what happened.

The Evans consent decree was prevailing law after

Evans I until Evans II was decided. Justice Ripple, con-

curring in the Evans III plurality, said: (10 F.2d at 483)

*** “The plurality opinion writes more broadly

than is necessary to decide the case before

us. ... For the present, it is sufficient to con-

clude that this Court’s decision in Evans v. City

of Chicago, 873 F.2d 1007 (7th Cir. 1989) (Evans

II), changed the prevailing law to such a degree

as to make further enforcement of the consent

decree by the District court inappropriate under

the standards set forth by the Supreme Court in

Rufo v. Inmates of the Suffolk County Jail, __ U.S.

—__., 112 S.Ct. 748, 762-64, 116 L.Ed.2d 867

(3952). :% 7°

The Supreme Court has observed in Missouri v.

Jenkins, 491 U.S. 274, 283-284 (1989) what problems can

exist for civil rights plaintiffs’ counsel with respect to

delay in payment of fees; in footnote 6 the court stated:

*** ... the prospect of such hardship

could well deter otherwise willing attorneys

from accepting complex civil rights cases that

might offer great benefit to society at large: this

result would work to defeat Congress’ purpose

in enacting Section 1988 of “encourag[ing] the

enforcement of federal law through lawsuits

filed by private persons.

A settlement embodied in a consent decree is always

subject to being vacated under Rule 60(b), as announced

in Rufo v. Inmates of Suffolk Couniy Jail, 502 U.S. 367, 112

S.Ct. 748, 757, 116 L.Ed.2d 867 (1992). Vacation of a decree

can occur in all of the various alternative ways discussed

in Rufo. If vacation occurs because the factual conditions

the decree sought to affect had been totally rectified, and

such a salubrious result occurred before attorney’s fees

were awarded, would this mean that no fees should be

awarded? Where the law charged after the entry of the

consent decree but before an award of attorney’s fees,

does that wipe out any and all possibility of attorney’s

fees? As in EVANS, where plaintiffs lost the right to argue

the due process issue as an underpinning of the consent

decree because of failure to cross-appeal in EVANS IL,

does that eradicate the substantial achievement repre-

sented by entry of the decree?

¢

CONCLUSION

For the reasons stated, it is preferable to let EVANS

IV stand. There is no driving necessity, as a matter of the

Supreme Court’s supervision of the lower federal court’s

interpretation of the five Supreme Court decisions noted

here, to change the interpretation currently represented

by EVANS IV and other similar decisions which

announce the same principles. Procuring a consent decree

settlement ought of itself to allow fees to a plaintiff’s

attorney for at least that aspect of the work, which is all

that is at issue here. The Petition for Certiorari should be

denied.

Respectfully submitted,

JOHN BERNARD CASHION

33 North LaSalle Street

Chicago, Illinois 60602

312/368-0191

Attorney for Respondent

Sylvia Evans