Memorandum on Objections
Working File
January 1, 1982 - January 1, 1982

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Case Files, Thornburg v. Gingles Working Files - Schnapper. Rybicki v. State Board of Elections of Illinois Court Opinion, 1983. b84cdde8-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0c665011-39f6-448c-9a48-424aa235be54/rybicki-v-state-board-of-elections-of-illinois-court-opinion. Accessed May 23, 2025.
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I continue to disagree yitfr the majority's view that this case *as not tried on a theory of unconstitutional racial degregs- tion. While it is true that the matter was unclear from the pleadings, tlere can be no doubt that during the trial the question of racial segregation, and the stigma result' ing from the wall, was clearly presented. I would allow the motion of the Crosby plain- tiffs to amend their complaint to conform with the proof. I fail to see how the amendment to the Voting Rights Act requires any change in the map the majority approved in its opin- ion ofJanuary 12,1982, and as long as the majority continues to see this case as one involving no constitutional issue, I believe that a further evidentiary hearing will be essentially unproductive. The "results" of t}te present map seem to me to have been fully analyzed by the majority in its opinion ofJanuary 12,1982, and found acceptable.3 I do agree with the majority that no further argument is necessary regarding the evidence which has already been taken. Finally, I agree that we should not retain jurisdiction in this case until the next reap portionment. To that extent I concur in the majority opinion. 1161 Chester J. RYBICKI,.CI ol. PlaintifTs, v.' The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Miguel DeIVALLE, et al., Plaintiffs, Y. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Bruce CROSBY, et al., Plaintiffe, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Nos. 8l C 6030, 8f C 6052 and 8l c 6093. United States District Court, N.D. Illinois, E.D' SePt. 27, 1983. In suit challenging Illinois' 1981 state legislative redistricting plan, the District Court, 574 F.Supp. 1082, denied Voting Rights Aet claim asserted on behalf of black voters. Upon reconsideration, the District Court, 574 F.Supp. 1147, requested that the Illinois Iregislative Redistricting Commission submit new district lines for certain areas on Chicago's south side in order to avoid vote dilution violative of "results" test of amended Voting Rights Act. Thereafter the Commission and plain- tiffs worked together to reach an agree' ment on the new lines. The District C,ourt, Cudahy, Circuit Judge, held that the settle ment agreement would be incorporated into the courtordered redistricting plan. circumstances Yould certainly include the "re- sults" of a redistricting, but the results are not coterminous with the test. The test is the rotali- r/ of circumstances, and it s€ems to me that the majority has already exhaustively analyzed those circumstances in its opinion of January 12, 1982. While I do not agree with that analy- sis, ml criticism is not that it was cursory. RYBICKI v. ETATE BD. OF ELECf,IONS OF ILLINOIS ' ' clrc .l 5?a FtuDP.'ll6l (trrs3) m in f, re F l- F t- e d n f D ) 3. The majority frequently refers to "the 'results test'of the amended Voting Rights Act." I do not read the amendment as providing for a "results" test. The phrase used to define the test for determining whether a protected group has "less opportunity than other members of the electorate to participate in the political process and to elect repres€ntatives of their choice" is "the totalit, ol circumstances." The totality of tt62 Order in accordance with opinion. Grady, J., filed an amended dissent to consent decree. states c.27(10) Settlement agreement reached after Il- linois Legislative Redistricting Crcmmission was requested to submit new state legisla- tive district lines for certain areas on Chica- go's south side in order to avoid vote dilu' tion violative of "results" test of amended Voting Rights Act would be incorporated into courtordered redistricting plan. Vot- ing Rights Act of 1965, S 2 et seq., as amended, 42 U.S.C.A. S 1973 et seq. Before CUDAHY, Circuit Judge, GRA- DY, District Judge and BUA, District Judge. RYBICKI III CUDAHY, Circuit Judge. This is the third and we think final chap ter of this court's review of Illinois' 1981 state legislative redistricting. In our Opin- ion of January 20, 1983, as amended, we reevaluated the Crosby plaintiffs' com- plaints about the South Side district lines particularly in light of the 1982 amend- ments to the Voting Rights Act. Rybicki a. State Board of Electiorx, 574 F.Supp. 1147, No. 81 C 6030 (N.D.Ill. Jan. 20, 1983) ("Rybicki II"). Based on our reading of the amended Act, we asked the Commis- l. During this period, on April 12, 1983, Harold Washington was elected Mayor of Chicago, the first black to hold the office. 2. We emphatically do not agree with Judge Gra- dy's cvaluation of a s€ttlement reached only after the vigorous and persistent efforts of coun- sel in trying and arguing this complex case and in pursuing settlement in the face of serious obstacles. 3. Judge Grady, in response to a motion of the Crosby plaintiffs protesting his criticisms, has revised his dissent of August 18, 1983, and sub' stituted a somewhat expanded dissent, dated Scptember 27,1983. It appears that Judge Gra- dy would still be dissatisfied with anything less than an attempted "color-blind" drawing of dis- 6?4 FEDEBLL SUPPLEMENT ,ion tl submit new digtrict lines in seve;l areas. Since January, the C,ommission and the Crosby plaintiffs have worked together to reach an agreement on the new lines.r We have before us norf, a Settlement Agree ment.2 After reviewing the Settlement Map (which is attached to this Opinion), we find that there has been a significant moving away from coincidence of black-white "boundaries" and the district Iines of dis- tricts with a very high percentage of blacks. For example, the lines of house district 23 have changed substantially and the percentages of blacks in the district has been reduced from 94% to 84%. Similarly, in house district 24 the percentage of blacks has been reduced from 96% tn 89% with some moderate changes in the district lines. The western boundary of house dis- trict 36 was left unchanged, as we expected it might be, in order to maintain the black population majority in senate district 18. See Rybicki // at 115?-1158. Finally, the boundaries of house district 31 were changed although the population percent' ages remained the same. All told a large number of census traets were affected and we think a substantial step has been taken. Therefore, since the Crosby and DelValle plaintiffs and the defendants have settled their differences, we hereby incor- porate the Settlement Agreement into the redistricting plan ordered by this court on January 12, 1982.3' DATED: August 18, 1983 trict lines. &e Dissenting opinion of Grady, J., N.D.Ill. Jan. 12, 1982,574 F.Supp. t082 at ll4G 1142. We continue to believe this approach is misguided and, as they point out in their mo tion, would be of no help to Crosby plaintiffs in their quest for fair legislative rey'tesentation. We also think that Judge Grady's comments on attorneys'fees are premature and irrelevanl to the merits of the settlement agre€ment and that counsel on both sides have generally been dili- gent and effective in presenting and settling the issues in this complex case. On Octobc-r 7, 1983, the attorne.r-s for the Crosby plaintifis anC for the defendant filed a further mol.irin. denominated a "Joint Post-Trial IUotion," in re.ponse to Judgr Gradv's revised dissent, fiieci Scptember 27,1983. The verified ! AMENf DECR} GRAD' I disser decree. racial wa' it is still r ble consi sent fron By virtur the law r lines ma drawn-t who do and to a desire k tricts.t tions of t and app sion of J W oPinit sions of rated in nifieant black-wl lines of age of I for purl substan' boundar found it The C have, in substan Joint I dctails reachir fort to pating partict tiffs, v tion, < APPcn We Grady which for ou Settlel lhe rc attach coil, I ' nleFl : AMENDED DISSENT TO CONSENT DECBEE DATED AUGUST 18, 1983 GRADY, District Judge. I dissent and decline to sign the consent decree. Despite some minor changes, the racial wall remains substantially intact, and it is stil motivated by the same impermissi- ble considerations whieh prompted my dis- sent from the decision of January 12,1982. By virtue of this consent decree, it is now the law of this Circuit that voting district Iines may be drawn-indeed, should be drawn-to suit the prefernences of whites who do not wish to associate with blacks and to accommodate black politicians who desire to run in predominantly black dis- tricts.r These were the primary justifica- tions of the raeial wall advanced at the trial and approved by the majority in the deci- sion of January L2, 1982.2 Today's majori- ty opinion states that in the reeent revi- sions of the court plan which are incorpo rated in the consent deeree, there is a "sig- nifieant moving away of the coincidence of black-white 'boundaries' and the district lines of districts with a very high percent- age of blacks." Assuming that to be true for purposes of discussion, there is still a substantial incidence of "black-white boundaries" (i.e., the racial wall) to be found in the revised map. The Crosby plaintiffs and their attorneys have, in my view, settled a case they had a substantial chance of winning in the Su- Joint Post-Trial Motion, filed by these attorneys, details their account of the events involved in reaching the Senlement Agreement. In an ef- fon to be fair to the various attorneys partici- pating in the lawsuit and the settlemenl and, in particular, to the attorneys for the Crosby plain- tiffs, we have attached this Joinr Posr-Trial Mo. tion, containing their version of events, as an Appendix to this opinion. We of the majority do not believe that Judge Grady's revised dissent raises any issues of fact which require us to hold hearings to determine for ourselves the circumstances surrounding the Scttlement Agreement. We are satisfied with the recitations of the Joint Post-Trial Motion, attached as an Appendix to this opinion. We, of course, have approved the Settlement Agree- ment and have indicated our complete satisfac- tion with it. We reiterate, with emphasis, our approval and satisfaction. 1163 preme C,ourt, with only'slight risk of losing what they gained in this court.E It is clear to me that plaintiffs' sttorneys do not hsve an independent understanding of the ef- fects of the new boundary lines and that they continue to rely, aB they have throughout this litigation, upon the attor- ney for the Commission to advise them concerning the demographics of tle case. At the hearing on the proposed congent decree which was held on NIay 27, 1983, the attorneys for the Crosby plaintiffs were unable to explain the maps showing the latest changes and had to rely upon the attorney for the Commission to interpret them. My dissatisfaction with the settlement is heightened by the faet that it includes not just the merits of the case but the impor- tant question of plaintiffs' attorneys fees as well. The appearance of a possible trade-off is hard to avoid in those circum- stances, and, for that reason the courts have repeatedly admonished that any ef- fort to negotiate fees should be postponed until after judicial resolution of the merits. See White a. New Hampshire Department of EmploEment Security, 455 U.S. 445, 453-54, n. 15, 102 S.Ct. 1162, 1167-68, n. 15, 71 L.Ed.zd 325 (1982) (simultaneous ne- gotiation over fees and liability "may raise difficult ethical issues for a plaintiff's at- torney ..."); Parker u. Anderson, 667 F.zd L204, 1214 (5th Cir. Unit L), cert. denied, _ u.s. _, 103 s.ct. 63, ?4 l. As the majority opinion points out (p. 1127, n. l), Harold Washingron, a black, was elected mayor of Chicago in April 1983. Mayor Wash- ington's election s€ems nol inconsistent with the view I expressed in my January 12, 1982, dissent (pp. 1138-1140) to the effect that quota-based districts are not only unconstitutional, they are unnecessary. 2 Majority opirrlon of January 12, 1982, pp. I I lf l I 15. *e ako dissenting opinion, p. ll27 , n.2. 3. It is important to note that this is not one of those near-hopeless situations where a litigant must persuade that overburdencd court to take the appeal by way of certiorari; it is instead one of those rare cases where an appeal would be as of right. Therefore, there is little doubt the Suprcme Court would address the question of the racial wall. 'RYBICKL v. STATE BD. OF ELECIIONS OF ILLINOIS r CltcreJTlF.8upp. tt6l (t9S3) / t D I I i! It i: i -* tr64 L.Ed.zd 65 (1982); Obin a. Disl,. No. g, Intnntotional Assoc. of Machinish, 651 F.zd 574, 582-83 and 582, n. 10 (8th Cir. 1981) ("This situation may raise a eerious ethical concem ... because counsel would be placed in the position of negotiating a fee ultimately destined for his pocket at the game time that all thoughts ought to be singlemindedly focused on the client's in- terest," 651 F.2d at 582 (footnotc omitted); Mendoza o. U.5., 623 F.2d 1338, IBSZ-58 (gth Cir.1980), cert. denied sub nom., San- chez o. Tucson Unified School District No. 7, 450 U.S. 912, 101 S.Ct. 1351, 6? L.Ed.2d 336 (1981) ("We cannot indiscrimi- nately assume, without more, that the amount of fees have [sic] no influence on the ultimate settlement . . . when, along with the substantive remedy issue, it is an active element of negotiation. [citation omitted] Nor do we believe that this po- tential conflict disappears simply because there is no fund or money damages being negotiated"); Prandini o. National Tea Company, 557 F.2d 1015, 1021 (Bd Cir. L977); Jones a. Orange Hou,sing Authori- ty, 559 F.Supp. 1379, 1384 (D.N.J.t98B) ("[H]ad plaintiff's attorney initiated any such discussion [of attoraey's fees prior to settlement of the merits], she would have been acting improperly"); Munoz o. Arizo- na State Uniaersity,80 F.R.D. 670,671-72 (D.Ariz.1978) ("Attorneys fees are subsidi- ary to the issue of settlement and should be considered subsequent to reaching a ten- tative settlement by the parties. [citation omitted] The practice of plaintiffs' counsel here appears to have created a clear con- flict of interest"); Lyon a. Arizona, 80 F.R.D. 665, 669 (D.Ariz.r978) (plaintiff's counsel's negotiation for his fees at the same time he was negotiating for settle- ment of tlre claims "constitutes a direct conflict of interest and is impermissible"); Regalado a. Johnson, Tg F.R.D. 447, 451 (E.D.III.1978) ("This interest in the fee makes it improper for the lawyer in a civil rights suit to inject the question of attor- ney's fees into the balance of settlement negotiation-<"); City of Philadelphia a. Chas. Pfi:cr & Co., 345 F.Supp. 454, 471 (S.D.N.)'.19?2) ("A plaintiff's la*-ver who , 6?4 FEDERAL STJPPLEMENT ,has an agreement that defendantslwill pay his fees has a strong motive so to conduct himself that defendants will not question or oppose the amount for which he ulti- mately applies as a fee"); Norman o. McKee, 290 F.Supp. 29, 36 (N.D.Cal.l968), affd, 431F.zd 769 (9th Cir.1979). See atso Monual for Compler Litigation E 1.46 (1981) (1 Pt. 2 Moore's Federal Practice, Pt. 1, S 1.46 (1981) at 75) ("When counsel for the class negotiates simultaneously for the settlement fund and for individual counsel fees, there is an inherent conflict of inter- est"). In this case, the sequence of events seems to me particularly unfortunate. In February 1982, the attorneys for the Cros- by plaintiffs filed interim fee petitions cov- ering their work up to the time of the original decision in the case. The amount claimed by Jenner & Block was 9122,- 419.00, and, in addition, to the complete surprise of the court, two of the named plaintiffs who testified as witnesses in the case, State Representative Carol Moseley Braun and State Senator Richard New- house, claimed attorneys fees of $44,460.00 and $33,420.00 respectively. When these original fee petitions were filed in Febru- ary 1982, a month following our original decision, the Commission filed lengthy and detailed objections in which it argued that plaintiffs were not entitled to recover any fees whatsoever. The Commission con- tended that the Crosby plaintiffs were not prevailing parties within the meaning of the Civil Rights Attorney's Fees Act, 42 U.S.C. S 1988, inasmuch as the plan pro posed by Crosby plaintiffs had been reject- ed by the court. As an alternative position, the Commission argued that if plaintiffs were entitled to fees, it would be only on those aspects of the case rrhere they pre. vailed. And in no event, urged the Com- mission, should the plaintiffs Braun and Newhouse be allowed any attorneys fees, because, inter alia, pro se plaintiffs have consistently been denied fees under Section 1988. The Commission u't,nt on to argue that in the Jenner & [iiu,:i claim there was considerable duplicatio:, i,' !rme and that a per be siot mu cas t}te exl 80u for ,i, inl odd mis fac, adl no Jen pla isa brit clai Thr tert attr and tha ,rwa sev ofI tne not be tha am( 4. va to TI tb pr of la p( cl, .-..---fll*. RYBICKI Y..STATE'BD. OE ELECTIONS OF ILLINOIS Cltc u S?a FS'IDP' f t6l (196!t) 1165 pey duct ition rlti- lo, he), slso 1.46 Pt. for the osel ter- !nts In nos- :ov- the unt 22,- lete oed tlre ,ley 9W- r.QQ ese ,ru- nal urd hat my on- rot of 42 FG ft- )D, ffs on tr} m- nd 98, percentage of the qmount claimed should Le deducted on this iccount. The Commis- sio, further contended that th,e use of a multiplibr was inappropriate because the case was not particularly complex. Finally, the C,ommission objected to most of the expenses for which reimbursement was sought, including the $50,000.00 requested for United Technologies Unlimited' This was the position of the Commission in April 1982, when the parties were still at odds on the merits of the case.r The Com- mission has now done a complete about- face. The attorney for the Commission has advised the court that the Commission has no objection to the fees being claimed by Jenner & Block, counsel for the Crosby plaintiffs, nor by Braun and Newhouse' It is apparent that the Commission desires to bring about payment of the full amount claimed, but it needs a court order to do so' The attorney for the Commission has writ- ten the court a letter praising the Crosby attoraeys, as well as Braun and Newhouse, and stating that the Commission agrees that the time claimed to have been spent "was certainly reasonable and although several lawyers represented the same class of plaintiffs, appropriate efforts were made to avoid duplication of work." The letter is not simply a consent that the fee petitions be granted in full, it is virtually a request that they be granted in full. The interim amount requested by Jenner and Block has 4. I express no view at this time concerning the validity of the Commission's arguments except tn ,t.i. that they were clearly not frivolous' The sigrrificant thing for present purposes is that the arguments were made' 5, An example is the work done on the map which was iendered as pan of plaintiffs' offer of proof made after the trial r,r'as concluded' The bff.. *us refused by the court as coming too late and the map wai not even considered' The point here is noi so much that the plaintiffs are clearly not entitled to fees for work which did now been increased ,to a final figure of $279,808.80. The qlaims of Braun and Newhouse remain at $44,460'00 and S33,- 420.00, so that the total attorneys fees the/ Commission is willing to have paid from public funds for the Crosby plaintiffs is $35?,688.90. The Commission has aban' doned its argument that fees should be allowed only for the work which related to the issues on which plaintiffs prevailed, despite the fact that large amounts of time were spent in connection with matters on which the plaintiffs elearly did not prevail'B Apparently there is no objection either to the costs being claimed by plaintiffs' attor- neys, including the $50,000.00 to United Technologies Unlimited for preparation of a map that was rejected by the court' And, in what is a first in my experience, the Commission no longer makes any objec- tion to the 20 per cent multiplier requested by Jenner & Block, by Braun and by New- house. I have never heard of another case in which one side has conceded, much less praetically urged, that the other side is entitled to a multiplier. This case has accomplished some good, but I believe we have stopped woefully short of what the Constitution requires' It is the policy of the law to favor settle- ments, but I am greatly troubled about this one, both on the merits and because of the attendant circumstances. nol contribute to the final result. Arguments could be made either way as to whether particu- Iar work did or did not contribute' The point, rather, is that in this case we are witnessing a rare if not unique exhibition of generosity by a party litigant: an agreement that the opponent L .o-p.tt*t.d for every minute of the more than 2,0O0 hours claimed to have been spent on the case. This is particularly questionable since we are dealing here not with private parties making business judgments but with a Sovern' mentat MY sPending taxPaYer funds' ve on ue as ;8 674 FEDERAD SUPPLEMEI\TT - '1, tr66 PRE.SETTLEIIEITT IIAP (rhrd.d rrrr r?pratants +85t bl.ck population) '/...",2' z.,,/,/, , ,,7r/, 7% - --r$r.g" 'ir RYBICKI v. STATE BD. qF ETTFCTIONS OF ILLINOIS cltc u Jzt F.aupp. ticl (tfef) 'rm i I 7 SEITLEIiIENT I{AP {thadad rrcr raprat.ntr +851 black populrt.i,on) 1168 6?r FEDERAL suppluurlr:r ' r APPENDIX ATI_qqIrrE, sreris DrsrRrca cou*r- roR rHE NonrrrERN orsrucr orliir_N:ixs EASTERN DIVISION BRUCE CROSBy, et al., Plaintiffg, v. IIPFIAIE BoARD oF ELEcrroNS OF THE STATE OF ILLINOIS , et al., by, sett No. 8l C 6098 (Conrolidated with Case Nos. 81 C 6082 and 81C 680) Hon. Richard D. Cudahv Hon. John F. Gradv Hon. Nicholas J. Bira une Cou sett neyt com C,ou: has tatio res0 4. amel stanr Defendants. JOINT POST-TBIAL MOTION Plaintiff, Bruce Crosby, et al., by their counsel, Thomas p. Sullivan, Jeffrey D. C,olman and Jenner & Block, C"-f Uoi"l", Braun and Richard H. Newhous", J"., ;;; defendant, the Legislative R"dirt i;G .Commission, et al., by their counsei, W;ilym J. Harte, jointly move this Court for the entry of an order granting the follow_ ing relief: (a) the .odifiotiJ, of JuJg" Grady's amended dissenting opinio, to ,'e- flect the faets relating to tfre negotiation and settlement of the Crosby litig;";, ;;; P) S: entry of an opinion "-r,a "iJ"" Uv iir" L;ourt's majority specifically finding that the consent decree negotiated by cou-nsel in thls case was done in full compliance with the law and the ethical standards "f ,r"profession. Pending the resolution of this motion, the ql"ti"! move, putsuant to Federal nufes oi Civil Procedure 59(a), OOfUl, andZoi eiOjthat the eonsent decree entered by thep-yt on August lg, 1988, Ue a"re.t"l anJ h.el_d in abeyance so as not to prejudice the rights of tlre ptaintiffs in *e ityi;cki ;;;, should they desire to take an alppeal. ----' In support of this motion, counsel state the following: not just the merits of the case but the important question of plaintiffs;;tt";: neys'fees as well. The appearan"" oil possible trade-off is hard- to avola ii those circumstances, and, for th"t;";_ son, the courts have repeatedly admor_ ished -that any effort t" n"goti"t"-t-i" fees should be postponed urtii-aftei;uAi cial resolution of the merits. Judge-Grady then goes on to outline whatne calls the ,.unfortunate,, sequence of :v.ents Ieading up to the settlement of tf,is litigation. The "appearance of a possible tradeoff, refered to byJudge Grady does not;"; sent the "reality', of what occurred. it" lr.illiri:": made by Judge Grady "." u"ry senous, but they are wrong. 2. Counsel for the Crosbg plaintiffs andthe defendant LegislativJ R"dir;;;;; rrmmlsston agree with Judge Grady thatif any tradeoff was made Lt*""r".tt i- neys' fees and the settlement of tne merits of this case, the settlement agreement and consent decree should not have been afproved by the Court, and the consent dL cree should be vacated by the eourt at thisfip". This matter warants the attention of all the members of this Court. l. In his Amended Dissent to the Con_ B. As demonstrated below, it was never ;?:r':[ff.];;;;-.c"'t 18, re8,, Juds; ffi Tfr'ilf ;t*.',,'A:ffi:'**;] Mv dissatisraction wjth the settrement is ff ,i::.T::k. ""&f*:l:"rl ffi:rfjheightened by the fact that it inctuaes were mindfur of the iegar principres citeri CaUSr all or to dr this I verifi liam facts gorre sires woulc beforr (a) C3S€ r cause tlemer COmmr court, severa in an extren the ev At tha too wa in the ments, up all posals black a ment n, jected quently Court a (b) Sr tween t ants th The' : asi., i APPENDIx-Continqed by Judge Grady when they negotiated the settlement of this case. Counsel represent unequivocally to all three members of this C,ourt that the merits of this case were settled prior to any discussion of the attor- neys' fees issues. We decided to present a complete settlement agreement to the C,ourt because we believed (wrongly, as it has turned out) that a consolidated presen- tation would facilitate the total and final resolution of this case. 4. Judge Grady has outlined in his amended dissenting opinion what he under- stands to be the sequence of events. Be' cause Judge Grady did not have before him all of the facts, it is necessary for counsel to describe the settlement negotiations in this motion. As refleeted by the attached verifications, Jeffrey D. Colman and Wil- liam J. Harte swear under oath that the facts contained in this motion are true and correct. If any member of this Court de- sires an evidentiary presentation, counsel would welcome the opportunity to appear before the Court. (a) The settlement negotiations in this case commenced during the trial of this cause in November, 1981. The initial set- tlement negotiations were prompted by comments made off the record, but in open court, by Judges Bua and Grady. After several days of trial, Judge Bua indicated in an off-the-record comment that he was extremely troubled by certain aspects of the evidence presented by the plaintiffs. At that time, Judge Grady indicated that he too was troubled by some of the evidence in the case. As a result of these com- ments, counsel for the Commission stayed up all night working on compromise pro posals for presentation to counsel for the blaek and Hispanic plaintiffs. After settle. ment negotiations, those proposals were re jected by the plaintiffs and were subse quently submitted by the defendants to the Court as eourt exhibits. (b) Settlement discussions continued be- tween the Crosby plaintiffs and thl defend- ants throughout the course of ttre trial. Then, after closing arguments 11.. Court asked to see counsel in chanri,r'- l]pon 1169 arriving in chamberS, Judges Bua and Gra- dy indicated that they had something tleyz wanted to say to counsel. Judge Bua indi- cated that-though he might change his mind after reviewing post-trial materials- , he was strongly inclined to rule against the Hispanics because they had not proven in' tentional discrimination, against the Repub- licans, and in favor of the black plaintiffs 'because he believed their evidence was suf- ficient to prove intentional discrimination. Judge Grady indicated that, while he might differ with Judge Bua as to some of the specific findings, he basically agreed with Judge Bua as to his conclusions. Follow- ing these remarks, the parties were encour- aged by the Court to try to work out a settlement map that would resolve the liti- gation. (c) Pursuant to the Court's suggestion, counsel once again participated in settle- ment negotiations. The Hispanic plaintiffs settled their litigation. However, despite significant efforts, the black plaintiffs were unable to reach a settlement with the Com- mission. (d) Following the Court's decision of Jan- uary 12, 1982, plaintiffs and defendants expended an enormous effort in the prepa- ration of post-trial motions and numerous memoranda in support of those motions. In addition, plaintiffs'counsel filed fee peti- tions which, as Judge Grady has noted, were objected to by the Commission. (e) On January 20, 1983, the Court is- sued its ruling on the post-trial motions filed by the Crosby plaintiffs. The Crosby plaintiffs' counsel transmitted the Court's opinions to their clients (see Exhibit 1) and began preparation of a proposed map. (f) From January 20, 1983 through April 14, 1983, counsel for both sides devoted their attention to the resolution of the mer- its of the cause. As Exhibit 5, Appendix A to Plaintiffs' Consolidated Petition for an Award of Attorneys\ .Fees and Costs re. flects, no attorney for the Crosby plaintiffs spent any time between January and April 14, 1983, working on any matter relating to the question of attorneys' fees. (On April 14, 1983,-in anticipation of a settlement of -t RYBICKI ". arnTE BD. OF ELEffIONS OF ILLINOIS Cltc rr J7a Fsupp. I 16l (f 9t3) the tor- rfa in rea- lon- the rdi- hat of tis c?' |r!8. he ry nd ng lat or- its nd lP b ris on er in of ,r- es ,.I u70 , r 674 FEDERAL SUPPLEMEI{? t. APPENDIx-{ontinued city of chicago that wourd have pracedthe merits, Mr' Crclman b"gT to prepare a Senator Earlee-n CoIir," back into her exist-supp-lemental fee petition.) Between Janu- ing senatoriar ais*ct. It was agreed thata-v-z!-lndApril14,counselfgrthe crosby tlre attorneys wourd mak" "r"ry""ffJ;plaintiffs and for the commission workei accommodate senator c,ollins "# ur;;;;on various alternative map proposals, met would go to court, if necessary, to seek thewith and communicated with their clients, court's= "pp"ou"t 'ro" that change in theand participated in numerous conversations map. with opposing counsel with regard to the fi) From April rg unt, May 2?, lgg3, thesettlement of the merits of this case. At aay ttre setilement agreement and preno time prior to April 20, lggg, did counser posed consent decree were presented tofor these parties discuss wit}t one another . ",y p"opoi"r rerating ro the settrement or i*,,f*#"di*,:..*il::1Xf,_i:irlthe attorneys' fees issues. prior to April the defendants would ag"ee to the publica-20, 1983, the only discussion between op tion of the Court,s earlier decisions, and (iii)posing counsel relating to attorneys' fees whether the defendants were going to seekwas that that question would be taken up certain changes in the Court,s findings reonly if and only after an agreement was Iating to intentional discrimination.reached on a new map. (g) The new map, whieh was ultimately approved by the Court, was agreed to at Springfield, Illinois on April ti, tg83, by Speaker Madigan, Mr. Newhouse, MJ. Braun, Mr. Colman and Mr. Harte. prior to agreeing to this map, counsel for the Crosby plaintiffs consulted with every black legislator from Chicago and each leg_ islator-be they "independent,' or ,,mi- chine"-vehemently objected to alternative proposals and endorsed the map which was subsequently presented to this Court. Ms. Braun and Mr. Newhouse conditioned their approval of the map on the concurrence of Mayor-elect Harold Washington. (h) On Sunday, April 1?, lgg3, Mr. Col_ man, Ms. Braun and Mr. Newhouse met with Mayor-elect Harold Washington. The map ultimately approved by the Court, as well as various alternatives, were shown to and diseussed with Mayor-elect Wash- ington, who approved the map ultimatety approved by tlre Court. (i) The next day, April 1g, lgg3, Mr. Col- man, Ms. Braun, Mr. Harte, Mayorelect Washington and Speaker Madigan met in Mayor-elect WashingJton's eongressional of- fice in Chicago. At this meeting, the map ultimately approved by this Court was dis_ cussed and approved by all present. The only issue relating to the map thai u.as left unresolved as of this meeting relaied to the nrrmcad aho--^. a- rL^ fft^-. cil - - r ^r The Collins issue was presented to this Court during the Seventh Circuit Judicial C,onference in a eourt reported session at the Ambassador West Hotel on May 2, 1983, and was subsequently resolved in a manner satisfactory to the Crosby plain- tiffs. With regard to the remaining two "substantive issues," the Crosby plaintiffs withdrew one paragraph from the settle. ment agreement which stated that the Commission agreed to the publication of this Court's opinions and the Crcmmission's counsel decided not to seek any revisions of those opinions. (See Exhibit 2.) (k) Plaintiffs finalized a draft of their Crcnsolidated Fee petition on April 28, lggg (see Exhibit 3). At that time, discussions between counsel for the parties with re- gard to fees commenced-this was after agreement was rreached on the new map. On April 26, lg8g, plaintiffs,counsel sent drafts of the consoli{pted petition t, Firra Assistant Attorney General paul Biebel and William J. Harte in order to facilitate a possible resolution of the attorneys, fees issues. (See Exhibit 4.) As not€; in a;; April 26 letter, it was t}re position of plain_ tiffs' counsel that if there were " ."ttt"ment of the fee issues (i) plaintiffs, counsel would forego petitioning for a multiplier greel{,r than 20% and (ii) Mr. Newhouse and Mslld,*r Braun wogld.waive tlreir rrequest \*:-'* - RYBICKI v. St.tTE BD. OF-ELECTIONS OF ILLINOIS ' ctrc er'izr rsuPP. t rcf (rrar) . -.*.? 117r r' Ed Lt Lt r,to ligy b€ h€ tlrc 6(> tD to l T c8- fii) sk [is bI Ct 2, a in- vo fs le- he of r's of 9rr 83 as te. et rp. nt rt el a BS le D- e' eI ]r ic ii APPENDIx-Crntinued to the filing of theii interim petitions in February, t182. [In April, 198r, the Sev- enth Cirtuit returned its decision on the attorneys' fees issue in the Congressional redistricting case. In that decision, I copy of which is attached hereto as Exhibit 5' the Seventh Circuit acknowledged the great import of redistricting cases and iwarded a multiplier ot 20% to the prevail- ing attorney, who also happened to be the "tt*uy foi ttre Commission in this case'l Several other discussions and meetings en- sued between the parties relative to the attorneys' fees issues prior to the hearing before the Court on MaY 27, 1983' 5. The chronology outlined above sum- marizes the manner in which the issues in this case were settled. At no time were the attorneys' fees issues linked to the settlement of the substantive issues in this case. The settlement was negotiated at a time when blaeks and whites in this City were greatly divided over the personalities involved in a heated mayoral election' Counsel dealt with their clients, incumbent politicians and each other in an effort to iesolve this case in a manner that was fair and just and that would bring people to. gether-not divide them. With the sole Jxception of Judge Grady, everyone with whom we have dealt-regardless of race- has expressed their gratitude for the ef- forts expended and the results achieved under extremely trying circumstances' The settlement of this litigation should not be enveloped in the cloud of Judge Grady's eharges. If he is correct, this Couri has an obligation tp set aside the Consent Decree. If he is wrong, as we know he is, both Judge GradY and this C,ourt's majority should acknowledge that the settlement was negotiated in accord- ance with the law and the ethical standards of our profession' Bcapetf ully rubmitted, Itl JelIrey D. Colman One of tlte ettomeYa for the 6torby Plaintilfs Crrol locley Bnun 618l Soutlr Ilyde Prrlt Blvd. I Chic.So,IL fi)6f6 : Richrrd II. Nerhou*, Jr. 6688 South Comell Chicrgp, IL 60616 Yillirn J. Err& Ul Y.!t lf,uhinStotr St. Chiogo,ll 00602 El2./t26-{o$ /r/ Willirn J. Iterte ffiiiifiiifriiffifo'th" Defendentr VERIFICATION Jeffrey D. Colman, being duly sworr un- der oath, states that he has read the fore- going Joint Post-Trial Motion and the facts set forth therein are true and correct to the best of his knowledge. /s/ Jeffrev D' Colman SUBSCRIBED and SWORN to before me this ? day of October, 1983. /s/ Lvnne B. Braver Notary Public VERIFICATION William J. Harte, being duly sworn under oath, states that he has read the foregoing Joint Post-Trial Motion and the facts set forth therein are true and correct to the best of his knowledge. /s/ William J. Harte SUBSCRIBED and SWORN to before me this ? day of October, 1983. /s/ Lvnne B. Braver Notary Public Thomu P. Sullivan Jelfrcy D. Calman JENNER & BIOCX One IBM Plru Cbiego, IL 00011 8t2/U-SW ,ii