# Opposition Brief — City of Chicago v. Evans

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1228%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1228%3A2. Public record. Not legal advice.