Reply Brief — City of Chicago v. Evans

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

Supreme Court, UG -

FILE Wg

ovis 2

CLERK

RS va eee - ls. 2 RO

IN THE

Supreme Court of the United

OCTOBER TERM, 1996

CrTy OF CHICAGO,

. Petitioner,

SYLVIA EVANS,

Respondent.

CiTy OF CHICAGO,

Petitioner,

Vv.

BERTHA BALARK, et ai.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

REPLY BRIEF FOR THE PETITIONER

SUSAN S. SHER

Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON *

Chief Assistant Corporation

Counsel

30 N. LaSalle Street

Room 800

Chicago, Illinois 60602

(312) 744-7764

Attorneys for Petitioner

* Counsel of Record

WILson - Evrae Prinrine Co., Inc. - 789-0096 - WASHINGTON, D.c. 20001

BEST AVAILABLE COP

\Q ey

TABLE OF AUTHORITIES

CASES: Page

Doe v. Busbee, 684 F.2d 1875 (11th Cir. 1982).... 5

Evans v. City of Chicago, 689 F.2d 1286 (7th Cir.

PPAR ERE SSS. SSR SAPP PASE aI CE Ne 2,3

Evans v. City of Chicago, 873 F.2d 1007 (7th Cir.

1989), cert. denied, 495 U.S. 956 (1990)........... 2, 8, 6, 7

Evans v. City of Chicago, 10 F.3d 474 (7th Cir.

1993) (en banc), cert. denied, 114 S. Ct. 1831

2 | BRAS NEAR UT Tiere aa UE pret a 2, 3, 6,7

Farrar v. Hobby, 506 U.S. 103 (1992) 0.000... 2

Harrington v. Vandalia-Butler Board of Educa-

tion, 585 F.2d 192 (6th Cir. 1978) 00-002... 5

Hensley v. Eckerhart, 461 U.S. 424 (1983) —........... 7

Hewitt v. Helms, 482 U.S. 755 (1987) ........000.0.0.... 2, 5,6

Nadeau v, Helgemoe, 581 F.2d 275 (1st Cir. 1978).. 6

Paimer v. City of Chicago, 806 F.2d 1316 (7th Cir.

1986), cert. denied, 481 U.S. 1049 (1987) ............. 5, 6

Rhodes v. Stewart, 488 U.S. 1 (1988) (per

curiam) spaniels coniahdpacigataeaiaiieiataas 2,5

Rufo v. Inmates of the Suffolk County Jail, 502

pba ER MU siecle Sahin dieiniphnrensensi 2-3

Smith v. University of North Carolina, 632 F.2d

eB Be) EM On eR 5

Stewart v. Donges, 379 F.2d 179 (10th Cir. 1992) .. 5

Texas State Teachers Association v. Garland Inde-

pendent School District, 489 U.S. 782 (1989)... 2, 5-6

Ward v. County of San Diego, 791 F.2d 1329 (9th

Ngee SD pennhate riper ch ciensenccbitcssdnsiarcsbiateinciec 5

STATUTE AND RULES:

43 UBC. § 19GB nissan. snes LiseifainipsceidioenLacaiisiiain 1

I i I Ie EID ictal tsa scipnistnocindaiinn nin sous 3

Pe ri See RIED icsenssiccicsstsrislisssinih ceithdensnaavenieancnnianesinac 6

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-167

CITY OF CHICAGO,

. Petitioner,

SYLVIA EVANS,

Respondent.

CITY OF CHICAGO,

Petitioner,

BERTHA BALARK, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

REPLY BRIEF FOR THE PETITIONER

ARGUMENT

Both respondents have ignored the one fact that dis-

tinguishes this case from any of the ones they cite in which

the courts have awarded attorney’s fees under Section

_ 1988. Here, the determination that respondents were

“prevailing parties” was made at a time when respondents

could point to no judgment of any kind constraining the

City’s practices in paying its tort judgments. Indeed, the

judgment on which they rely to obtain fees—the consent

decree—had been vacated because it was based on the

erroneous decision Evans I (Evans v. City of Chicago,

689 F.2d 1286 (7th Cir. 1982)). Now, although re-

spondents have been in litigation over the City’s payment

practices for nineteen years, they have absolutely nothing

to point to that survived the en banc decision in Evans

III (Evans v. City of Chicago, 10 F.3d 474 (7th Cir.

1993), cert. denied, 114 S. Ct. 1831 (1994))—no

declaratory relief, no injunction, no damages, no consent

decree. We are, in fact, under no legal compulsion at all

to pay our tort judgments in any different manner from

the way that we were paying them when this litigation

began. These respondents, in short, have failed miserably

to obtain “actual relief on the merits of [their] claim[s]”

that has “materially altered the legal relationship between

the parties by modifying the defendant’s behavior in a way

that directly benefits the plaintiff.” Farrar v. Hobby, 506

U.S. 103, 111-12 (1992). See Texas State Teachers Asso-

ciation v. Garland Independent School District, 489 U.S.

782, 792-93 (1989); Rhodes v. Stewart, 488 U.S. 1, 3-4

(1988) (per curiam); Hewitt v. Helms, 482 U.S. 755,

760-61 (1987).

To avoid this inevitable conclusion, respondents make

no fewer than five attempts to show that they are prevail-

ing parties. First, the Balark plaintiffs assert that “the

consent decree here was not based on a mistake of law.”

Brief of the Balark Respondents in Opposition to Petition

for Writ of Certiorari 7 [hereafter “Balark Br.”]. This

argument appears to be based on some distinction between

mistakes of law and rulings that are perceived to be cor-

rect when they are entered and later are adjudged to be

incorrect—a distinction that escapes us. When Judge

Ripple, see Evans HI, 10 F.3d at 483 (concurring opin-

ion), and the court below in Evans IV, see Pet. App. Sa,

wrote that Evans II (Evans v. City of Chicago, 873 F.2d

1007 (7th Cir. 1989), cert. denied, 495 US. 956

(1990)), had “changed the prevailing law to such a

degree as to make further enforcement of the consent

decree inappropriate under” Rufo v. Inmates of the

Suffolk County Jail, 502 U.S. 367 (1992), what they

meant was that Evans II had recognized that the equal

protection holding in Evans I was so completely incorrect

that it could not support the consent decree. Certainly

neither Judge Ripple nor the panel below could have

meant to suggest that between the 1982 decision in Evans

I and the 1989 decision in Evans II the governing law

for equal protection claims changed to a significant degree.

Indeed, both Evans I and Evans II applied the well-settled

rational basis test. See Evans I, 689 F.2d at 1299; Evans

IT, 873 F.2d at 1015. The only change is that Evans I got

it wrong and Evans I] got it right. Respondents cannot

plausibly argue that the consent decree was not “based

on a mistake of law.” The consent decree, after all, was

based on Evans I, see Evans Ill, 10 F.3d at 476-77

(plurality opinion), and Evans I was “clearly erroneous.”

Evans II, 873 F.2d at 1016.

Second, the Balark respondents point out that the judg-

ment entering the consent decree was a final judgment.

See Balark Br. 9. Evans makes this same general observa-

tion. See Brief of the Respondent, Sylvia Evans, in Op-

position to Petition for Writ of Certiorari 8. This, of

course, is true, but it does not explain why a final judg-

ment based on a mistake of law—in this case Evans ]—

and vacated because it never should have been entered

in the first place should be hardy enough to support a

fee award simply because it was once entered. Whatever

distinction might exist in other cases for final judgments

later set aside under Fed. R. Civ. P. 60(b) and orders

set aside on direct review, surely it does not exist here,

where the reason the judgment was vacated was neither

a change in circumstances nor the accomplishment of the

purposes of the decree but simply that the court has seen

the error of its ways. Respondents seem to concede the

correctness of the cases we cite in which fees are denied

for an erroneous interlocutory ruling. The rule should be

no different for an error that has achieved finality through

no fault of the party aggrieved by that ruling.

Third, and along the same lines, the Balark respondents

note that simply because a consent decree is vacated “does

not mean that it was not valid while it existed.” Balark

Br. 9. We have no quarrel with this general proposition,

although it has nothing whatever to do with this case.

This is just more of respondents’ refusal to come to grips

with the fact that this consent decree was vacated pre-

cisely because it was based on an erroneous ruling and,

indeed, should never have been entered in the first place.

Even respondents do not argue that this consent decree

would have been entered but for the court’s error in

Evans I. In common sense terms, that is a consent decree

that was not valid while it existed, even though it was not

judicially pronounced invalid for several years.

Fourth, the Balark respondents assert that “[t]his law-

suit and its consent decree undisputably [sic] affected the

behavior of the City toward the respondents, affording

respondents significant relief, . . . and materially altered

the relationship of the parties.” Balark Br. 12 (citation

omitted). If this is meant to describe the period of time

during which the consent decree was in effect, of course

we quite agree. If it is meant to have any bearing on

respondents’ entitlement to fees after the consent decree

was vacated as based on a mistake of law, then it is

simply incorrect. The legal relationship between the City

and respondents is the precisely same now as before re-

spondents brought these lawsuits nineteen years ago—

except that we have spent inordinate time litigating claims

that have been judged worthless and are now res judicata

for respondents and any class member who might seek

similar relief in the future. Surely that type of alteration

in the relationship of the parties should not be rewarded

with fees.

Finally, the Balark respondents argue that our test

would make the availability of fees turn on a “fortuity.”

Balark Br. 12-13.’ But what respondents call a “fortuity”

1 The Balark respondents go so far as to argue that we seek a

“windfall.” Balark Br. 12. Even if this Court overturns the hold-

is actually the statutory touchstone of prevailing party

status. In interpreting that requirement, we do not think

it is too much to ask that the plaintiff be able to point to

some tangible result in the lawsuit at the time that the

district court awards attorney’s fees. As we explain in our

petition for certiorari, temporary victories are routinely

dismissed as insufficient to support a fee award. E.g.,

Stewart v. Donges, 979 F.2d 179, 182 (10th Cir. 1992);

Palmer v. City of Chicago, 806 F.2d 1316, 1321-23 (7th

Cir. 1986), cert. denied, 481 U.S. 1049 (1987); Doe

v. Busbee, 684 F.2d 1375, 1381 (11th Cir. 1982);

Smith v. University of North Carolina, 632 F.2d 316,

352-53 (4th Cir. 1980). Indeed, even success not later

branded as error is insufficient if it is illusory. See

Rhodes v. Stewart, 488 U.S. at 3-4; Hewitt v. Helms,

482 U.S. at 760; Ward v. County of San Diego, 791 F.2d

1329, 1333-34 (9th Cir. 1986); Harrington v. Vandalia-

Butler Board of Education, 585 F.2d 192, 198 (6th Cir.

1978). Surely if the plaintiff’s “success” is founded, as it

was in this case, on a mistake of law, and the success

achieved longevity measured only by the length of time

that it took the court to recognize and correct its error,

the plaintiff has not prevailed. The district court was not

obliged to shut its eyes to the fact that it had vacated the

decree, and to award fees simply because for a few years

the consent decree had life and, therefore, at some point

in the past plaintiffs had been “prevailing parties.” *

ing below that respondents are prevailing parties, we will not think

ourselves lucky to have been embroiled in this litigation. This case

has brought us no sudden and unexpected good fortune. To the

contrary, it has taken a long time and considerable energy to extract

ourselves from a case that should have been over long ago.

2 Texas State Teachers is not to the contrary. There the Court

explained its reasons for rejecting the central issue test applied by

the Fifth Circuit, including that it failed to account for success on

an issue pendente lite. The Court’s statement that “Congress can-

not have meant ‘prevailing party’ status to depend entirely on the

timing of a request for fees,” 489 U.S. at 791, was therefore in-

tended to accommodate those cases in which the plaintiff “ha[d]

succeeded on any significant claim affording it some of the relief

The Balark respondents offer two grounds in support

of their judgment that do not relate to the question de-

cided below, but these are insufficient to insulate the

judgment from review. First, they argue that attorney’s

fees can be awarded in this case on the theory that they

were the “catalyst” of what they call a permanent change

in the City’s payment practices. Tellingly they cite no case

from this Court for that proposition—this Court has never

embraced the notion of a “catalyst” where a lawsuit was

said to have caused a change in the defendant’s policies.

See Hewitt, 482 U.S. at 763. In any event, because this

theory was never reached by the court below, and re-

spondents cite only cases from that court, this Court

Should, at a minimum, vacate the judgment below and

remand the case to the court of appeals for its considera-

tion in the first instance of respondents’ alternative theory.*

Finally, the Balark respondents offer the now legally

irrelevant notion that the consent decree should not have

been vacated in Evans III. Respondents did not make

this argument to the court below, and they did not ask

that court to depart from the law of the case as estab-

lished in Evans II and Evans Ill. The issue is now waived.

Nor may respondents seek reinstatement of the decree

without a cross-petition, which they did not file. See this

Court’s Rule 14.1(a).

sought,” ibid., other than in the final judgment. Here, respondents

have not succeeded on any of their claims.

% Respondents presented their catalyst theory to the court of ap-

peals, which did not reach the question. Pet. App. 7a. Yet it is

unlikely that the court below reached out to decide the harder

question in the case and bypassed a theory under which respondents

would easily prevail. In fact, as we explain in our petition, respond-

ents would not be catalysts under the test used by the Seventh

Circuit. See Palmer v. City of Chicago, 806 F.2d at 1822. Indeed,

Palmer makes clear that in cases that have concluded on the merits,

a plaintiff who has not altered the legal relationship is not a

catalyst either. The catalyst theory, to the extent that it means

something other than a change in the legal relationship of the

parties, is best reserved for those cases in which the plaintiff pre-

vails before judgment on the merits. See, e.g., Nadeau v. Helge-

moe, 581 F.2d 275, 281 (1st Cir. 1978).

In the final analysis, as Evans I. and III make clear,

the consent decree here protected no federal rights and

was not mecessary to’ restrain: any unconstitutional con-

duct. Thus, the congressional policy of compensating pre-

vailing parties. in civil rights. cases is surely not at play

when a plaintiff in fact vindicates no federal right. Con-

versely, there is surely serious violence to our system of

federalism when local taxpayers must foot the bill for

litigation that accomplished. nothing but to restrain their

elected officials for years because of the erroneous deci-

sion of a federal court. Ailthough the Balark respondents

question whether the fee award will really be $1 million,

see Balark Br. 14, they do not dispute that this is the

amount that they and Evans have asked the district court

to award.* And. although they think that this affront,

whether it be $300,000 or $1 million, or something in

between, is. not important enough to warrant review, it

is surely grounds. for summary reversal—relief that we

explicitly suggested and that neither brief in opposition

even discusses.

* The district court’s determination on the fee petitions would be

subject to review only for abuse of discretion. See Hensley v.

Eckerhart, 461 U.S. 424, 486-87 & n.12 (1983).

CONCLUSION

The petition for a writ of certiorari should be granted.

The Court may wish to consider summary reversal.

Respectfully submitted,