Memorandum on Objections

    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
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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
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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