# Opposition Brief — Evans v. City of Chicago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1169%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1082 ## Text 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., -~ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1169%3A2. Public record. Not legal advice.