Opposition Brief — Evans v. City of Chicago

Nos. 93-1372 and 93-1373

IN THE

Supreme Cowt of the United States

OCTOBER TERM, 1993

SYLVIA Evans, et al.,

¥,

CiTy OF CHICAGO, eee Of ME OLE

BERTHA BALARK, et al., -~<istinesttatesnstrasememe

. Petitioners,

CITY OF CHICAGO,

Respondent.

On Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

SUSAN S. SHER

Corporation Counsel of

the City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON *

Chief Assistant Corporation

Counsel

BRIAN TRUBITT

Assistant Corporation Counsel

30 North LaSalle Street

Suite 800

Chicago, Illinois 60602

(312) 744-7764

Attorneys for Respondent

City of Chicago

* Counsel of Record

WILSON - Eras PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether a federal court should continue to enforce

a consent decree controlling the budget of a unit of local

government where a change in law since entry of the

consent decree makes plain that there is no substantial

claim that the decree serves any federal interest.

2. Whether the court of appeals erred by determining

that its own prior decision in this case, repudiating a still

earlier decision of the same court, had so changed the

law that continued enforcement of a consent decree based

on the repudiated decision was inequitable or an improper

exercise of federal power.

(i)

TABLE OF CONTENTS

Page

oth yy 8 Bt ny | | i

JN OF Rs Nine 6 oy) - iv

BRE a es 1

SE ee a See See 2

I iliteccthdiccidintninvchisttimviitilbaistaanbibittiadeastitittatinbntiation 5

THIS CASE PRESENTS ONLY QUESTIONS OF

THE APPLICATION OF WELL-SETTLED LAW

WITHIN A UNIQUE FACTUAL CONTEXT ....... 5

I aad renceeenenitininsnielinabtaetinorintiains 15

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Atkins v. Parker, 472 U.S. 115 (1985) ~................... 10

Bell v. Wolfish, 441 U.S. 520 (1979) t 6

Board of Education v. Dowell, 498 U.S. 237 (1991)... 10

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

|, SRR ae Beamer cass SEROMA 8s A al 2

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

1989), cert. denied, 495 U.S. 956 (1990) -........... 3

Firefighters Local Union No. 1784 v. Stotts, 467

cs 7

League of United Latin American Citizens v. Clem-

ents, 999 F.2d 831 (5th Cir. 1993), cert. denied,

SOG Fe eT ND capcertdccnpettcinpitsteritcbamenttiiosoene 6,14

Local No. 98, Firefighters v. City of Cleveland, 478

es MI I ee 6

Rizzo v. Goode, 423 U.S. 362 (1976) ........................- 7

Rufo v. Inmates of the Suffolk County Jail, 112

BRE AE Re i passim

System Federation No. 81, Railway Employes’ De-

partment v. Wright, 364 U.S. 642 (1961) .......... 6, 7,12

United Mine Workers v. Gibbs, 383 U.S. 715

CD dicinicticlinseanncinshasieedibde tuaiakiedadilas ickubetiebtiaaipesibsete 14

United States v. Locke, 471 U.S. 84 (1985) ............. 10

United States v. Swift & Co., 286 U.S. 106 (1932).. 6

CONSTITUTION, STATUTE, AND RULE:

I TIE os, ns ns sacesernimiaenidiccdastebnnkpsanieanns passim

SB ha eR a A REST I 9

& 4. 8 RRR ene eee meee passim

In THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1372

SYLVIA EVANS, et al.,

" Petitioners,

City oF CHICAGO,

Respondent.

No. 93-1373

BERTHA BALARK, ef al.,

- Petitioners,

CiTy OF CHICAGO,

Respondent.

On Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit sitting en banc, Pet. App. 1-23, is

reported at 10 F.3d 474. The opinion of the three-judge

panel of that court, vacated by the order granting respond-

ent’s suggestion for rehearing en banc, Pet. App. 24-50,

is reported at 995 F.2d 1393. Prior opinions of the court

of appeals in this litigation are reported at 689 F.2d 1286

(7th Cir. 1982), and 873 F.2d 1007 (7th Cir. 1989),

cert. denied, 495 U.S. 956 (1990).

2

STATEMENT

This is the second time petitioners have sought cer-

tiorari in this litigation, which is now about seventeen

years old. The named petitioners are class representatives

of two of three consolidated class action lawsuits filed

between 1977 and 1979 against the City of Chicago. All

three complaints alleged that the City’s practice of paying

small tort judgments before large ones regardless of the

dates on which the judgments were entered, and the City’s

practice of delaying payment of large tort judgments (al-

though all judgments, when paid, included statutory post-

judgment interest) violated the Due Process and Equal

Protection Clauses. When certified, the Evans and Balark

classes differentiated on the basis of how old the unpaid

judgment was; the reason for any such distinction has

long since disappeared. The third class was not involved

in the proceedings at issue in these petitions.

On January 28, 1981, the district court entered partial

summary judgment in favor of the Evans and Balark

plaintiff classes and against the defendant City of Chicago.

The court directed the City to pay all members of the

Evans class immediately; declared unconstitutional two

Illinois statutes governing payment of judgments against

municipalities; and certified the order for immediate ap-

peal under Fed. R. Civ. P. 54(b).

The court of appeals affirmed on the basis that the

Equal Protection Clause forbade the City to distinguish

between iarge and small tort judgments in setting a pay-

ment schedule. See Evans v. City of Chicago, 689 F.2d

1286, 1299-1300 (7th Cir. 1982) (Evans 1). The court

held that plaintiffs had a protectable property interest in

prompt payment (id. at 1296), but nonetheless vacated

the district court’s order on the constitutionality of the

State statute, holding that no one had standing to challenge

the statute because the City had never chosen to pay any-

one under it. /d. at 1299. The case returned to the dis-

trict court for further proceedings.

3

The parties, with the district court’s assistance, entered

into negotiations, and on May 30, 1984, the district court

approved a consent decree. Pet. App. 93-107. The con-

sent decree recited the course of the litigation and bound

the City to pay all judgments in the order in which they

were entered and to pay all judgments within 45 days.

The consent decree did not settle the question what dam-

ages were due for the City’s past practices.

Trial proceeded in the district court on the outstanding

damages issue. At this stage, petitioners introduced a new

theory of equal protection liability. They argued that the

City irrationally chose to delay payment of tort judgments

while paying other types of judgments (such as contract

claims) immediately. See Evans v. City of Chicago, 873

F.2d 1007, 1012-13 (7th Cir. 1989) (Evans II), cert.

denied, 495 U.S. 956 (1990). Petitioners also reasserted

their due process argument. The district court held for

petitioners on the new equal protection claim and did

not address the due process claim.

This time, the court of appeals reversed and overruled

the decision in Evans I, holding instead that the Equal

Protection Clause did not forbid the City from treating

tort judgments differently from other judgments, nor from

paying judgments slowly. See Evans Il, 873 F.2d at

1016-18. The court concluded that there was a rational

basis for the City to pay small judgments out of order,

namely, reducing delays for large numbers of small judg-

ment creditors. Jd. at 1016. Because petitioners had not

pressed their due process claim as an alternate ground for

affirmance in Evans II, the court of appeals indicated that

“[t]he due process claim ha[d] not survived to this stage

of the litigation.” Jd. at 1018 n.15; see id. at 1012 n.11.

The case returned to the district court, where petition-

ers’ motions for attorneys’ fees were pending. Petitioners

argued that, despite their defeat in Evans II, they were

still prevailing parties because they had obtained the con-

sent decree, which remained in effect. The City thereupon

4

moved to vacate the consent decree under Fed. R. Civ.

P. 60(b)(5). The district court granted that motion and

denied the petitions for attorney's fees. See Pet. App.

136-38.

Petitioners’ motion for reconsideration was granted in

part. The district court refused to vacate the consent

decree but modified it slightly and vacated the order

denying attorney’s fees. Pet. App. 140-41. The con-

sent decree, in its modified form, still required the City

to pay judgments in the order that they are entered (Pet.

App. 101, §IV, 45); annually to submit to the City

Council a request for appropriation of monies sufficient

to cover the full anticipated liability for the ensuing

year, which may not be less than the total amount of

judgments that became final in the preceding year (Pet.

App. 102, §IV, 49); and to follow specified detailed

procedures for authorization and payment of judgments

(Pet. App. 103, §IV, 4410-14). The City was also

required to pay judgments within 45 days after the pre-

sentment of proper documentation. Pet. App. 103, § IV,

¢ 11(d). The only change the district court made in

light of Evans II was to add a clause to the decree pro-

viding that judgments under $1000 need not be paid in

any particular order. Pet. App. 140.

On the City’s appeal, a divided panel of the court of

appeals affirmed. Pet. App. 24-50. This decision was

vacated when the case was set for rehearing en banc.

Pet. App. 133. The en banc court of appeals then re-

versed. Pet. App. 1-23 (Evans III). A five-judge plu-

rality held that the consent decree must be vacated be-

cause no federal interest remained after Evans II for the

decree to protect. Pet. App. 1-17. Judge Ripple con-

curred in the judgment, writing simply that Evans II

had so changed the prevailing law that continued en-

forcement of the decree was improper under Rufo v.

Inmates of the Suffolk County Jail, 112 S. Ct. 748

(1992). Pet. App. 17-18. Judge Cudahy, joined by

Judges Cummings and Rovner, dissented, arguing that a

sufficient federal interest remained in enforcing the Con-

stitution, especially the colorable due process claim,

against the City’s payment practices. Pet. App. 18-22.

Judge Flaum, joined by Judge Kanne, also dissented, ar-

guing that, in light of a colorable due process claim, there

was no legal or factual change in circumstances that jus-

tified setting aside the consent decree. Pet. App. 22.

ARGUMENT

THIS CASE PRESENTS ONLY QUESTIONS OF THE

APPLICATION OF WELL-SETTLED LAW WITHIN

A UNIQUE FACTUAL CONTEXT.

A majority of the court of appeals in this case resolved

two propositions, neither of which merits this Court’s at-

tention. The first is that a federal court should not exer-

cise its equitable powers to enjoin operations of local

government unless there is a substantial claim of a fed-

erally recognized wrong to be remedied. The second is

that Evans II so changed the law that any claim of a

federally cognizable injury in this case was illusory.

Neither proposition is the subject of a split of authority

in the courts of appeals. Petitioners do not even claim

such a conflict. Neither presents an issue of great impor-

tance that this Court has not previously addressed. In-

deed, this Court in Rufo only recently addressed the

standard for amending or vacating a consent decree under

Fed. R. Civ. P. 60(b)(5). Both propositions are well

supported by this Court’s precedents and involve applica-

tion of well-settled rules of law to the unique—indeed

almost bizarre—procedural history of this case. Thus the

holding below was simply that, in the context of the

extraordinary litigation in this case, Rule 60(b)(5) man-

dated vacatur of a consent decree entered nearly ten years

ago. This decision does not warrant plenary review.

1. Petitioners do not appear to argue that a federal

consent decree could be entered in the first instance with-

6

out a showing that some nontrivial federal interest exists.

Nor do they argue directly that a federal decree should

continue in force after the claimed federal interest is shown

to be without substance. Yet that is exactly the result

of what they advocate. If a consent decree is treated

solely as a contract, as petitioners implicitly submit, then

“a deal is a deal.” Pet. App. 18 (Cudahy, J., dissenting).

But if a consent decree is recognized as an ongoing judi-

cial act, it should not outlive the law it is meant to en-

force.

Petitioners rely on the contractual aspects of consent

decrees to argue that it is improper to allow reconsidera-

tion of the legal basis for a consent decree once the decree

has been entered. Evans Pet. 12-17; Balark Pet. 22-26.

But this line of argument runs into direct conflict with

the decisions of this Court holding that consent decrees

are not simply contracts; they are also equitable decrees

of a federal court and should not be enforced simply

because the defendant has previously consented. See Local

No. 93, Firefighters v. City of Cleveland, 478 U.S. 501,

525 (1986) (A “federal court is more than a ‘recorder’

of contracts’ from whom parties can purchase injunc-

tions.”); System Federation No. 91, Railway Employes’

Department v. Wright, 364 U.S. 642, 651 (1961) (“The

parties cannot, by giving each other consideration, pur-

chase from a court of equity a continuing injunction.”);

United States v. Swift & Co., 286 U.S. 106, 115 (1932)

(“We reject the argument . . . that a decree entered upon

consent is to be treated as a contract and not as a judicial

act.”). See also League of United Latin American Citizens

v. Clements, 999 F.2d 831, 846-47 (Sth Cir. 1993), cert.

denied, 114 S. Ct. 878 (1994).

Indeed, the court reaffirmed this understanding in the

case on which petitioners primarily rely, Rufo v. Inmates

of the Suffolk County Jail, 112 S. Ct. 748 (1992). The

defendants there had agreed to a decree forbidding double

celling at the jail prior to the decision in Bell v. Wolfish,

7

441 U.S. 520 (1979), which held that the Constitution

does not forbid double celling. Relying on System Feder-

ation, the Court observed that an intervening change in

law is a sufficient ground for relief from a decree despite

the defendants’ prior consent. See 112 S. Ct. at 762-63.

The court concluded that if the defendants “could estab-

lish on remand that the parties to the consent decree

believed that single celling of pretrial detainees was man-

dated by the Constitution, this misunderstanding of the

law could form a basis for modification.” Jd. at 763.

Thus a defendant’s prior consent does not immunize a

decree from review as the law subsequently evolves.

Decrees, whether entered by consent or otherwise, are

still judicial acts. See Firefighters Local Union No. 1784

v. Stotts, 467 U.S. 561, 576 n.9 (1984) (“ {T]he Dis-

trict Couri’s authority to adopt a consent decree comes

only from the statute which the decree is intended to

enforce,’ not from the parties’ consent to the decree.”’)

(quoting System Federation, 364 U.S. at 651); Rizzo v.

Goode, 423 U.S. 362, 377 (1976) (referring to the well-

established rule that federal “judicial powers may be

exercised only on the basis of a constitutionai violation”

(citation omitted) ). Thus, without some violation of fed-

eral law to remedy, there can be no exercise of federal

judicial power, even if all parties consent. Even Judge

Cudahy, in his dissent below, recognized that “[w]hile the

Supreme Court has yet to vacate a consent decree on the

grounds that there is an insufficient federal interest, it

has suggested that the Constitution implictly imposes such

a limitation on the equitable powers of the federal courts.”

Pet. App. 20. Thus, the contractual consent of the parties

does not confer on a federal court the power to supervise

state and local governments even when unnecessary to

safeguard federal rights.’

1 The plurality below also notes that entry into litigation cannot

give the parties greater powers than they otherwise enjoy. That is,

the existence of a lawsuit against a municipality cannot give the

municipality’s chief executive more power than he or she otherwise

Moreover, even if there were some shred of a federal

interest left to protect after the governing law changed in

Evans II, the decision below would still be proper under

Fed. R. Civ. P. 60(b) (5) as interpreted by this Court in

Rufo. See Pet. App. 17-18 (Evans III, Ripple, J., con-

curring). Petitioners do not argue that Evans II did not

require some change in the consent decree at issue here.”

As the court of appeals concluded, absent the later dis-

credited decision in Evans I, the City would have agreed

to no aspect of the consent decree. See Pet. App. 6-7.

Plainly this is correct; prior to Evans I the City had

refused to settle and had defended on the merits. And

relief under Rule 60 must “resolve the problems created

by the change in circumstances.” Rufo, 112 S. Ct. at

had to make City policy. See Pet. App. 7-8. Although Balark

attempts to exploit this dictum (Pet. 22-24), the outcome of this

case is not dependent on the change in administrations between the

time the consent decree was entered and the time it was vacated.

Thus, the decision below does not rest on the proposition that one

mayoral administration cannot bind later administrations to the

terms of a consent decree. Given the change in the law underlying

the consent decree, even the administration that entered the de-

cree, were it still in power, would have been entitled to relief under

Fed. R. Civ. P. 60(b) (5).

2 Petitioners argue only that the court below erred by not “tailor-

ing” the consent decree to conform to the change in the law. Evans

Pet. 23-25; Balark Pet. 18-20. This argument misses the point.

The change in the law eliminated the purpose for any decree with

any terms whatever. There is now no basis for any exercise of

federal power in this case. With the vacatur, the decree perfectly

reflects this change in the law.

Evans further faults the Seventh Circuit for not requiring the

City to show extreme and unexpected hardship before vacating the

decree. Pet. 17-19. This argument is simply inapplicable to vacatur

for a change in the law; it properly applies only to change in facts.

Rufo rejected the argument that Rule 60 requires a showing that

a consent decree works a “grievous wrong” before relief from it is

appropriate. See 112 S. Ct. at 757-60. In this case the law has

changed so greatly that there is no law for this decree to enforce.

There is thus no need to require a showing of hardship from con-

tinued enforcement of a decree that ought not to be enforced at all.

9

764. Evans II, as interpreted in Evans II by the court

that had rendered that decision, eliminated any claim that

there is any federal role whatever in oversight of the speed

with which units of local government satisfy their judg-

ments.’ In light of that change in the law, the standards

of Fed. R. Civ. P. 60(b)(5) and Rufo make plain that

vacatur was correct. Indeed, when the district court tried

to modify the decree to reflect the falling away of the

equal protection claim, the court could not do so. The

court had to add an entirely new provision that nothing

forbade the City to give small judgments preferential

treatment. Even that modification had no practical sig-

nificance. The decree still required the City to pay all

judgments in order and within 45 days. As the court

below held, Evans I had a greater impact than merely

forbidding any quicker payment of small judgments. Thus

* Balark argues (Pet. 15-16, 21) that, in interpreting its own

decision in Evans II, the court below violated 28 U.S.C. § 2106.

This issue is both waived and uncertworthy. The Section 2106

issue is raised for the first time in the petition for certiorari, and

Balark has shown no reason for her failure to raise it in the

Seventh Circuit. It was entirely evident from the City’s opening

brief to that court that we were arguing that Evans I] had affected

both the due process and equal protection claim. Yet Balark’s

brief never cited Section 2106. Moreover, this is not an issue on

which the lower courts have split or upon which this Court’s guid-

ance is required. Balark does not contend that the federal courts

cannot tell dictum from holding.

Balark’s position in any event is meritless. While no due process

claim was before the court in Evans II, that decision’s reasoning

applied as powerfully to petitioners’ due process theories as to their

equal protection theories. And the only reason Evans II did not

directly consider due process was that petitioners did not advance

it as an alternative ground for affirmance of their judgment. More-

over, Balark’s position that the Evans III court could not consider

whether petitioners due process theories had enough merit to

support the decree leads to an unacceptable result. If Balark is

right that consent decree obligors cannot later litigate the legal

theories on which a consent decree is based, obligors will have ab-

solutely no opportunity to seek relief from a decree on the basis

of a change in the law. Yet such relief is clearly authorized by

Fed. R. Civ. P. 60(b) (5).

eee a Le li atin, Putas

10

the repudiation of Evans I in Evans II required broader

relief.

Rufo also teaches that in assessing the propriety of

relief under Rule 60, a court should consider the public

interest in restoring control over local government to the

people’s elected representatives. Accord Board of Educa-

tion v. Dowell, 498 U.S. 237, 248 (1991). Thus if the

court below correctly concluded that petitioners’ due

process theory lacked substance (and neither petition

quarrels with that conclusion), there is no justification for

preserving a federal district court’s control over municipal

taxing and spending in order to protect these nonexistent

due process rights.‘

Thus, there appears to be no disagreement—by the

_ dissenters or petitioners—about the governing legal prin-

ciples here. The only issue is whether those principles

were correctly applied to the unique facts of this case.

Thus, the point separating the plurality and the concur-

rence from the two dissents is whether, on these facts, the

unlitigated due process claim was colorable enough and

enough of a basis for the consent decree to support that

decree after the equal protection claim was so roundly

denounced. But neither petition even argues that the due

4 There is in fact no merit to the due process claim. Considered

as a substantive due process claim, the contention that delays in

paying judgments are unconstitutional because time erodes their

value is no different from a claim that a post-judgment interest

statute providing for a below-market rate is unconstitutional. As

the court below correctly noted, such a claim is frivolous. See

Pet. App. 14-16. Likely for this reason, petitioners, as well as the

Evans I court and the dissenters below, characterized the claim as

a procedural one. But the claim is no stronger that way. The de-

cision to delay payment for budgetary reasons was made legis-

latively—when the Chicago City Council appropriated funds to

pay judgments in its annual appropriation ordinance. Decisions

since Evans I make clear that such legislative action satisfies due

process when across-the-board determinations governing many

cases must be made. See Atkins v. Parker, 472 U.S. 115, 129-31

(1985); United States v. Locke, 471 U.S. 84, 108 (1985).

11

process claim has merit. And although much of Evans’

petition is devoted to complaining about how the lower

federal courts have interpreted this Court’s decision in

Rufo (see Pet. 8-11), the petition fails to show how this

case represents a misapplication of Rufo.® Indeed, the

petition fails to show that any of the cited cases has mis-

applied Rufo. See Pet. 10. It seems that Evans’ real

complaint is not with the interpretation given Rufo by

the Seventh Circuit or other courts, but with Rufo itself.

See Pet. 10-11, 13-15.

Petitioners raise the specter that hundreds of consent

decree obligors will rush to the courthouse seeking to

vacate decrees because the Seventh Circuit’s opinion in

this case makes it seem so easy. Evans Pet. 8-11; Balark

Pet. 26-27. Even a cursory look at this opinion and the

litigat‘on leading up to it shows how ludicrous this sug-

gestion is. The City litigated the merits of petitioners’

constitutional claims to the Seventh Circuit and lost in

Evans I. The district judge then applied heavy pressure

to the City to enter a decree based on what “the Court

of Appeals ordered done a long time ago.” Pet. App. 6

(quoting district court). Almost five years later, the

Seventh Circuit reversed itself in Evans IJ. But even

after that, the district court refused to vacate the consent

5 Evans misrepresents the proceedings in the district court in

an effort to show that this case misapplied Rufo. The petition

notes the evidentiary hearings at which the district court took

testimony about what motivated the City to enter the consent de-

cree. See Pet. 15. The district court itself, however, later agreed

that all this evidence was irrelevant because the interpretation of

the consent decree should be based, just as petitioners urge (Pet.

14, 16) on its four corners. See Pet. App. 61-62. No judge at any

time in this litigation has ultimately held that subjective motivation

is relevant under Fed. R. Civ. P. 60(b) (5). This point disposes as

well of Evans’ claim that the Seventh Circuit found facts. Pet.

27-39. Evans claims that the plurality determined the motivation

of the City for entering the decree. But that court made no in-

quiry at all into what was in the minds of City officials in enter-

ing the decree. The only inquiry was into the state of the law and

the posture of the case at the time of the decree.

——._ —

12

decree, and the City lost its appeal before the panel. Only

after obtaining rehearing en banc did the City prevail,

and then only by the fewest possible number of judges in

two separate opinions, Thus all the court below has held

is that an outright repudiation by the court of appeals of

the very decision that forced settlement in the first place

is a sufficient basis to vacate a decree. Surely such a

limited holding will cause no stampede to the courthouse.

And, in any event, those consent decrees that are based

on bygone legal theories should be modified or vacated.

Federal Rule of Civil Procedure 60(b)(5) and Rufo

provide for just that.

In this respect, the decision below is perfectly in ac-

cord with System Federation, which neither of the peti-

tions in this case even mentions, although it was a cen-

terpiece of the plurality’s opinion. See Pet. App. 7, 9.

In System Federation, a consent decree was entered that

forbade the Railroad from discriminating against employ-

ees who refused to join a union. See 346 U.S. at 644.

After the consent decree had been in place for several

years, federal law was changed to allow a union shop.

Ibid. This subsequent legal change could not, of course,

affect the legal basis of the consent decree at the time the

decree was entered. Had the decree been nothing more

than a binding agreement based on the exchange of con-

sideration, there would have been no basis for reforming

the decree after Congress changed the law. As the lower

courts in that case noted, there was nothing under the new

law that prohibited the measures dictated by the consent

decree. See id. at 646. Nonetheless, this Court held that

the c> nge in the law was sufficient to require modifica-

tion «x the decree. As this Court recognized as recently

as Rufo, the reasoning of System Federation still holds:

if federal law has changed, then the federal courts ought

not to continue to exert their power to protect federal

interests that no longer exist. The court below faithfully

implemented this rule in this case. The plurality and

the concurring judge determined that the decree was en-

tirely based on Evans II and therefore had to be vacated.

: “5

” ; id ie bi ee whe

Pur Peat Cg Pees Vee YAP, Se. ee Tee ae gy ee A we ee

oe ee

13

This narrow, fact-bound, correct decision does not merit

review.

2. The real issue in this case is whether litigants who

ultimately lose on all questions of law may nonetheless

keep the benefits of a consent decree entered on the basis

of an interlocutory victory. For there is no other basis

on which petitioners could possibly hope to keep the

consent decree in place. Not a single judge who has

heard this case in Evans II or since then has been willing

to hold that any clause of the Fourteenth Amendment ac-

tually requires that units of local government satisfy judg-

ments against them within any particular time frame.

Even the dissenters below would go no further than de-

scribing the due process claim as “at least colorable.”

Pet. App. 21 (Cudahy, J., dissenting); see Pet. App. 22

(“a colorable due process theory supported at least part

of this decree when it was entered”) (Flaum, J., dissent-

ing).° And petitioners, although decrying the loss of the

consent decree (and thus their attorney’s fees), nowhere

argue that the City’s payment practices ever violated the

Constitution or that there is any risk that the City would

return to its prior practices unless restrained by the con-

sent decree.

These gaps in petitioners’ argument leave a consent de-

cree that simply could not have been agreed to by the

parties had it been proposed after Evans II and that

could not have been entered by the district court even if

* Balark complains that the Seventh Circuit has created a new

test for determining whether a consent decree is supportable:

whether there is a “substantial” federal interest,, rather than

whether there is a “colorable” claim. But Balark herself admits

that the precise standard under the decision below is “undefined.”

Pet. 25. There is no indication in the opinions below that this is

anything more than semantics. It is more than evident from the

plurality opinion that there was no semblance of a federal issue

in the aftermath of Evans I]. This Court need not use its resources

to decide whether “substantial” means more than “colorable” in

a case in which the difference if any is plainly irrelevant to the

outcome of the case.

14

the parties had agreed. See League of United Latin

American Citizens v. Clements, 999 F.2d at 845-46. The

issue here is whether that unadjudicated theory can

support this consent decree when it is a certainty that

they would not prevail on the merits.’ The court be-

low acted properly and in harmony with the decisions

of this Court in vacating the decree that required

an ongoing exertion of federal power in support of a

theory that simply is not the law. That decision does

not conflict with the decision of any other circuit or with

any decision of this Court. Nor could it. We are aware

of no other case in which the change in the law relied

on for application of Fed. R. Civ. P. 60(b)(5) was a

reversal of an interlocutory decision by the same court

in the same litigation. This chain of events is unlikely

ever to recur. Thus, further review in this case would

prove of little help to the lower courts in their considera-

tion of other cases.

At the heart of this case is the assessment of the effect

of Evans Il on this case. The Seventh Circuit is in far

7 Evans’ argument about pendent jurisdiction (Pet. 20-23) fails

for two reasons. First, it is waived: the state law claims were

not raised as grounds for relief separate from the constitutional

claims in the complaint. See Pet. App. 96, 2; Pet. App. 98, { 9.

Rather, the state law issues were raised only to show the existence

of a federaily protected property interest. Second, there can be no

pendent jurisdiction where the federal claims are insubstantial.

United Mine Workers v. Gibbs, 383 U.S. 715 (1966). Here, the

court below correctly held that the federal claims are not even color-

able, and petitioners do not even argue that they would prevail on

any federal claim if the issues were to go to trial today. Thus, if

this case were brought today, any pendent state law claim would

be dismissed.

In any event, if Evans wants a ruling on her state law claims,

she is not precluded by the Seventh Circuit’s judgment from asking

the district court for one. All that court held is that the consent

decree must be vacated. It dees not in terms terminate this liti-

gation, although dictum in the yiurality opinion certainly indicates

a hope that that will be the result. Of course, that state law claim

is by definition not certworthy.

15

the best position to determine, as it did in the decision

below, what it meant by its opinion in that case and how

far it meant to go in overturning its decision in Evans I.

This Court was asked to review Evans II, but declined,

495 U.S. 956, and for good reason. This Court’s rede-

termination of the issues in that case would have been

of extremely limited utility to other courts. Nothing more

is at stake here. All that the court below decided was

what the court meant by its own opinion in Evans II,

and it then applied settled law to the case as so viewed.

This Court need not give guidance to other circuits on

that issue.

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,

SuSAN S. SHER

Corporation Counsel of

the City of Chicago

LAWRENCE ROSENTHAL

Deputy Corporation Counsel

BENNA RUTH SOLOMON *

Chief Assistant Corporation

Counsel

BRIAN TRUBITT

Assistant Corporation Counsel

30 North LaSalle Street

Suite 800

Chicago, Illinois 60602

(312) 744-7764

Attorneys for Respondent

City of Chicago

April 25, 1994 * Counsel of Record