Michael Shakman v. J.B. Pritzker

43 F.4th 723

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 5, 2022
• Docket: 21-1739
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 21-1739 MICHAEL L. SHAKMAN and PAUL M. LURIE, individually and on behalf of others similarly situated, Plaintiffs-Appellees,

v.

J.B. PRITZKER, in his official capacity as Governor of the State of Illinois, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:69-cv-02145 — Edmond E. Chang, Judge. ____________________

ARGUED DECEMBER 10, 2021 — DECIDED AUGUST 5, 2022 ____________________

Before EASTERBROOK and SCUDDER, Circuit Judges. * SCUDDER, Circuit Judge. In 1972 a federal district court en- tered the first of many consent decrees preventing the

*CircuitJudge Kanne died on June 16, 2022 and did not participate in the decision of this case, which is being resolved under 28 U.S.C. § 46(d) by a quorum of the panel. 2 No. 21-1739

Governor of Illinois and units of local government from con- ditioning employment decisions on political patronage. And so were born the Shakman decrees. The Governor remains subject to the original 1972 decree to this day—50 years later—despite having demonstrated substantial compliance with its terms and objectives in recent years. Principles of fed- eralism do not permit a federal court to oversee the Gover- nor’s employment practices for decades on end in circum- stances like this. The power to hire, fire, and establish accom- panying policies needs to return to the people of Illinois and the Governor they elected. The federal courts will remain open to decide individual cases of alleged constitutional vio- lations should they arise. But no longer shall the Governor’s employment practices and policies have to win the approval of a United States court. I A The extensive history of the Shakman decrees is well doc- umented. Indeed, the Federal Reporter contains six prior opinions from our court detailing the decrees and the related twists and turns over the last half century. An abbreviated re- view of that history suffices this time around. By the 1960s political patronage too often influenced pub- lic employment decisions in Illinois, with state officials awarding jobs based on who showed loyalty to the dominant political party. In 1969, aiming to curb the corruption, inde- pendent political candidate Michael Shakman and voter Paul Lurie brought a putative class action against several political organizations and various arms of county and city govern- ment. They alleged that the conditioning of employment No. 21-1739 3

opportunities on campaign contributions and pledged votes prevented the election of independent candidates and vio- lated the First, Fifth, and Fourteenth Amendments. In 1970 we reversed the district court’s dismissal of the case. See Shakman v. Democratic Org. of Cook County, 435 F.2d 267 (7th Cir. 1970) (“Shakman I”). The parties then commenced the settlement negotiations that led to the 1972 Shakman con- sent decree—the mutually agreed-upon and court-approved remedy for the past practices that infected state and local em- ployment decisions. See Shakman v. Dunne, 829 F.2d 1387, 1389 (7th Cir. 1987) (“Shakman II”). As part of those negotiations, the plaintiffs added several defendants, including the Gover- nor of Illinois—Richard Ogilvie at that time—to the eventual consent decree. It is that original agreement from 1972, plus a couple of subsequent decrees (against new units of local gov- ernment) expanding the scope of the court’s supervision of government employment decisions, that we now know col- lectively as the Shakman decrees. See Shakman v. Clerk of Cook County, 994 F.3d 832, 836 (7th Cir. 2021) (“Shakman VI”). The express terms of the 1972 decree made its purpose clear: the state could no longer “condition[ ], bas[e] or know- ingly prejudic[e] or affect[ ] any term or aspect of governmen- tal employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor.” On a prior occasion we recognized that the decree and its attendant federal supervision were necessary to safeguard the speech and associational rights of candidates and voters. See Shakman II, 829 F.2d at 1395. In the years after the decree took effect, the Supreme Court issued two cases affirming the unlawfulness of political pat- ronage in government employment decisions. See Elrod v. 4 No. 21-1739

Burns, 427 U.S. 347, 356–59 (1976) (holding that local govern- ment could not constitutionally base public employment op- portunities on political affiliation or nonaffiliation); Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990) (qualifying Elrod and holding that a state generally may not consider political affiliation in hiring except as to certain exempted political po- sitions). In time the Shakman decrees found themselves cemented on the district court docket. And for decades little seemed to happen other than the district court receiving annual or quar- terly reports on the status of ongoing compliance efforts. By our measure, six different federal judges have overseen the case since its inception in 1969, with at least 1,000 status re- ports filed since the original consent decree took effect in 1972. The federal docket now includes over 10,000 entries—the first from October 1969 and the most recent from this week. What may have started with a federal court’s well-grounded injunc- tion came to look more like indefinite federal judicial super- vision of state employment practices. B Fast forward from 1972 to 2014. After decades of quiet, the Shakman decrees experienced something of a revival. It was then that the Illinois Office of Executive Inspector General, which the Illinois General Assembly authorized in 2009 to in- vestigate and redress political patronage in state employ- ment, reported multiple decree violations between 2003 and 2013, most especially at the Illinois Department of Transpor- tation. The Department, the Inspector General’s report ex- plained, had improperly hired, promoted, and transferred hundreds of individuals based on political considerations No. 21-1739 5

under the Rod Blagojevich administration and for at least part of Pat Quinn’s tenure as Governor of Illinois. By this time, and with the parties’ consent, a magistrate judge had assumed responsibility for overseeing the Shakman cases. The magistrate responded to the Inspector General’s findings by granting a motion to appoint a special master to investigate the extent of the Department of Transportation’s noncompliance with the Shakman decree and to recommend and evaluate the implementation of remedial measures. Like the Inspector General, the special master found that officials in the Blagojevich and Quinn administrations “played a key role” in the employment abuses within the Department. Ac- cordingly, the magistrate judge expanded the special master’s duties to include review of all positions under the Governor’s authority. The court set no deadline for either the special mas- ter to complete her review or for the Governor to demonstrate sufficient compliance with the decree, but instead committed to “schedule regular meetings and require the submission of periodic reports.” The special master’s supervision spurred at least some meaningful remedial action by the Governor. In addition to the already-established Office of Inspector General, Governor Bruce Rauner’s administration supported and instituted new remedial measures to account for past abusive practices and to help prevent their recurrence. In 2015, for example, the In- spector General established a new compliance department called the Hiring & Employment Monitoring Division dedi- cated to guaranteeing state employment practices “are free from political and other manipulation.” Additionally, in 2016 the Governor agreed to develop and implement a Compre- hensive Employment Plan that established guidelines for all 6 No. 21-1739

aspects of state employment to prevent a recurrence of imper- missible patronage practices. Among other things, the Em- ployment Plan provides that the state should move toward fully automated hiring platforms with an accompanying pub- licly accessible website containing job postings, position de- scriptions, and an application process—all to promote trans- parency throughout employment processes. The magistrate judge likewise played a role in helping to ensure the Governor moved the state in a new direction by instituting controls to prevent the abuses of the past. The court worked with the parties to approve a new process for reviewing applications of existing employees who sought jobs elsewhere in state government, but who had been hired as part of the improper practices within the Department of Transportation. Even more, it pressed the Governor to adopt a list of those politically appointed positions exempt from the general prohibition on patronage hiring announced in Rutan—a list that continues to be updated monthly. Each of these measures has proven effective, though the parties dispute to what degree. As recently as 2019 the special master reported that Governor J.B. Pritzker has made “signif- icant progress” in complying with the 1972 Shakman decree, including by continuing efforts to implement the state’s Com- prehensive Employment Plan. To be sure, however, the spe- cial master has emphasized that more remains to be done. “[O]pportunities for manipulation” cannot be ruled out, she has explained, especially given the history of political patron- age in Illinois. No. 21-1739 7

C That brings us to more recent developments. In November 2019 the Clerk of Cook County—itself, too, still a separate party the Shakman decrees—filed a motion to vacate the de- cree. The magistrate judge denied that motion and the Clerk appealed, affording us our sixth opportunity to speak on the case. See generally Shakman VI, 994 F.3d 832. Although we affirmed the denial of the motion to vacate, we sounded serious concerns about the duration and seem- ingly never-ending nature of the Shakman decrees: “Do not let today’s result cloud the grave federalism concerns we have with the fact that the Clerk of Cook County has been under the thumb of a federal consent decree for the last 50 years,” we underscored. Id. at 843. “Such entrenched federal over- sight should have raised red flags long ago.” Id. It was against that backdrop—and reassignment of the case from the magistrate judge to the district court—that Gov- ernor Pritzker moved under Federal Rule of Civil Procedure 60(b)(5) to vacate the decree. The Governor pressed two posi- tions. First, he claimed that, as evidenced by the special mas- ter’s praise of the state’s ongoing efforts to institute durable remedies and her inability to find constitutional violations in recent years, the state had satisfied the requirements of the decree. Second, the Governor argued that, separate and apart from the state’s showing of recent compliance, continuing the decree would be inequitable because the named plaintiffs lack standing and, regardless, ongoing enforcement after this long offends principles of federalism. 8 No. 21-1739

D In a thorough opinion, the district court denied Governor Pritzker’s motion to vacate the 1972 decree. Like the special master, the district court found that while “direct evidence of political motivation is absent” in recent state employment de- cisions, there were “areas of ongoing concern from which in- ferences of First Amendment violations can be drawn.” Most notably, the district court echoed the special master’s concern with the Governor’s failure to fully implement certain admin- istrative policies and processes prescribed by the Comprehen- sive Employment Plan, like adoption of a new electronic hir- ing system. Deficiencies like these, the district court deter- mined, did not violate the decree but did reveal an ongoing and yet unmitigated risk of potential future violations. Put an- other way, it was the full implementation of certain risk man- agement policies—like those within the Governor’s Employ- ment Plan—that would serve as “the cornerstone of a sunset plan” to the decree. So too did the district court conclude that the Governor had not shown the Inspector General and Hiring & Employ- ment Monitoring Division to be sufficient solutions to prevent the patronage practices of the past. Although those offices closely supervised the state’s compliance with the law, in the district court’s view, neither had achieved the durability nec- essary to release the Governor from federal supervision. Until then, both the special master and the federal court would con- tinue close watch over the Governor of Illinois and every agency under his authority. In denying the Governor’s motion to vacate, the district court also granted in part Shakman and Lurie’s request to ex- pand the scope of the special master’s duties. In addition to No. 21-1739 9

supervising the Governor’s compliance with the Shakman de- cree, the special master was also now expressly tasked with monitoring the state’s implementation of the Governor’s Comprehensive Employment Plan and related policies. Governor Pritzker then appealed. II The standards supplied by Rule 60(b)(5) of the Federal Rules of Civil Procedure guide our analysis. The Rule author- izes a district court to relieve a party from a judgment or order if either (1) “the judgment has been satisfied, released, or dis- charged” or (2) “applying it prospectively is no longer equi- table.” Fed. R. Civ. P. 60(b)(5). Governor Pritzker has made the necessary showings on both fronts, and the district court abused its discretion in concluding otherwise. See Horne v. Flores, 557 U.S. 433, 447 (2009). A We start with Rule 60(b)(5)’s first ground for vacating a decree—satisfaction. A party claiming to have satisfied the terms of a consent decree must show that it has achieved the objectives of that decree. See id. at 450. Once a party has shown that it has substantially complied with the terms of the decree and implemented a durable remedy, “continued en- forcement of the order is not only unnecessary, but im- proper.” Id. Two primary reasons combined lead us to con- clude that the Governor has satisfied the terms of the Shak- man decree. First, the last significant violations of the decree seem to have occurred nearly a decade ago with the patronage scan- dal within the Department of Transportation. The parties point us to none since that time—certainly nothing systemic 10 No. 21-1739

within any department under the Governor’s supervision. Nor are we aware of any meaningful number of lawsuits al- leging that the Governor or any department reporting to him violated the constitutional rules announced by the Supreme Court in Elrod or Rutan. Indeed, in some two dozen reports by the special master over the past seven years, we see no find- ings of patronage practices harming individual employees or applicants. Nothing in the parties’ appellate briefs suggests otherwise. Second, the Governor has instituted or otherwise sup- ported several remedial measures in recent years (under the special master’s and district court’s supervision, to be sure) to minimize the risk of political patronage in employment prac- tices. Beyond the development of a Comprehensive Employ- ment Plan, the state now has in place the Hiring & Employ- ment Monitoring Division within the Office of Inspector Gen- eral and a limited Rutan exempt list, among other things. That many of these measures have remained in place for several years with no findings of constitutional violations in or across individual employment decisions speaks to the stability of the state’s, and by extension, the Governor’s reform measures. Shakman and Lurie, to their credit, candidly acknowledge the Governor’s progress in recent years. And, for her part, the special master has on more than one occasion commended the Governor’s efforts to comply with the decree, including by de- scribing his accomplishments as “extraordinary,” “notable,” and “significant.” All of this is enough, we believe, for the Governor to show that he has implemented a durable remedy and satisfied the objectives of the 1972 decree. No. 21-1739 11

Shakman and Lurie, who remain named plaintiffs over a half century after the case began, urge a different approach. To our eye, their focus is not on this or that series of recent hiring (or promotion or transfer) decisions, but instead on the particulars of the Governor’s Employment Plan. They con- tend that the Governor can do more to implement specific measures to further reduce the risk that the state returns to the unlawful ways of its past. Many dimensions of the district court’s analysis charted this same course. For instance, in its opinion denying the Governor’s motion to vacate, the district court identified areas of “ongoing concern”—specific unful- filled tasks under the Governor’s Employment Plan—“from which inferences of First Amendment violations can be drawn.” While we commend the district court’s diligence, we have a hard time with its approach, especially 50 years into the case. What most concerns us is that the special master’s over- sight—which the district court relied on in denying the Gov- ernor’s motion to vacate—has drifted beyond any obligation imposed by the decree and, most certainly, the Constitution. Nowhere do we see the special master, the district court, or Shakman and Lurie on appeal relying on the standards artic- ulated in Elrod and Rutan to identify constitutional violations. Rather, the special master’s reports concentrate on Gover- nor Pritzker’s compliance with the finest of details within his own Comprehensive Employment Plan. But that lengthy Em- ployment Plan, as its name implies, is more of a human re- source manual than an articulation of the lines separating lawful from unlawful state employment practices. Whether the Governor hires through paper or electronic means, whether he posts job openings on the internet, or whether he 12 No. 21-1739

routinely updates position descriptions and titles is of no di- rect constitutional import. Nor do we see how the full achievement of those specific measures is crucial to a conclu- sion that the Governor has sufficiently satisfied the aims of the 1972 decree and put in place adequate measures to avoid fu- ture constitutional violations. See Horne, 557 U.S. at 450 (“[C]ourts must remain attentive to the fact that federal-court decrees exceed appropriate limits if they are aimed at elimi- nating a condition that does not violate federal law or does not flow from such a violation.”) (cleaned up). In today’s final analysis, the Governor owes his allegiance to the federal and Illinois Constitutions—including the stand- ards announced by the Supreme Court in Elrod and Rutan. But everything the district court seemed to be assessing was a step removed, focused more on administrative best practices and much less on whether recurring constitutional violations war- ranted the special master’s continued oversight under the di- rection of a federal court. In no way are we saying that the risk of unlawful political patronage no longer exists within Illinois. Of course it does: nobody is naïve to the state’s embarrassing history. Doubtless more can be done to further reduce risk, improve existing con- trols, and respond to any allegations of constitutional viola- tions in individual employment decisions. To his credit, Gov- ernor Pritzker, through his very able counsel, was quick to acknowledge as much as part of reaffirming the Governor’s commitment to maintaining existing remedies and to finaliz- ing implementation of his Comprehensive Employment Plan. But allowing risk-driven reasoning to carry the day creates a most-concerning risk of its own—that the decree remains in place indefinitely. That prospect too discounts the reforms the No. 21-1739 13

Governor has instituted and that the special master has found in large part to be effective. In essence, Shakman and Lurie are all but insisting that the Governor prove a negative—that he show that no constitutional violations, whether measured at the individual level or more systemically, have recently oc- curred or will recur in the state’s employment practices. That approach asks too much. The controlling question in deter- mining whether to vacate the 1972 decree is whether the Gov- ernor has satisfied its objectives, including by implementing a durable remedy to avoid systemic future constitutional vio- lations. We believe he has. As we see the record, everyone involved in recent years— foremost Governor Pritzker, but also the special master, the district court, and Michael Shakman and Paul Lurie (and their talented counsel)—has been diligent in ensuring the state’s substantial compliance with the 1972 decree. This is what is supposed to happen in institutional reform litigation, even if it is coming many, many years too late. We see nothing more for the district court to do. The Governor has satisfied the ob- jectives of the consent decree. B While our analysis could end there, the constitutional im- plications of a contrary conclusion warrant special emphasis. As the Supreme Court has explained, Rule 60(b)(5)’s equity consideration in a request for relief “serves a particularly im- portant function in what we have termed ‘institutional reform litigation.’” Horne, 557 U.S. at 447 (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 380 (1992)). On the record be- fore us, continuing to hold the Governor to the 1972 decree (and everything compliance with it has come to entail in the last 50 years) would affront principles of federalism and leave 14 No. 21-1739

the district court playing a role at odds with the Case or Con- troversy limitation in Article III of the U.S. Constitution. 1 We begin with points all too easy to forget but all too im- portant to a proper framing and resolution of the question be- fore us. The Governor of Illinois is the state’s highest ranking elected official—chosen by voters to take the state in particu- lar policy directions and to offer “new insights and solutions.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 442 (2004). Making employment decisions is a meaningful part of the Governor’s responsibility and executive prerogative, a way to implement policy choices and to get things done. The Governor, keep in mind, also swears an oath to up- hold both the Illinois Constitution and the federal Constitu- tion. As a matter of first principles, the Constitution presumes that state officials “have a high degree of competence in de- ciding how best to discharge their governmental responsibil- ities,” including how to effectuate constitutional compliance. Id.; see also Lewis v. Casey, 518 U.S. 343, 349 (1996) (explaining that “it is not the role of courts, but that of the political branches, to shape the institutions of government”). The oath the Governor takes means he swears to comply with the con- stitutional rulings announced by the Supreme Court in Elrod and Rutan. If he fails to do so, he (and other state officials) can be sued in state or federal court and held accountable. See 42 U.S.C. § 1983. Indeed, case-by-case resolution and accountability is the norm from the perspective of our national Constitution. Con- sent decrees are the rare exception, with long-running decrees being rarer still. Suffice it to say the 50-year-old Shakman No. 21-1739 15

decree reflects a far extreme. While extended federal judicial oversight might serve as an occasional backstop, absent ex- traordinary circumstances, it should not serve as a primary means of ensuring state officials comply with duties imposed by federal law. Doing so, the Supreme Court has cautioned, risks courts “in the name of the Constitution, becoming en- meshed in the minutiae of [state] operations” and depriving local officials of their own legislative and executive responsi- bilities. Lewis, 518 U.S. at 361 (cleaned up); see also City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983) (declining to enjoin the LAPD’s use of chokeholds because of the balance “to be pre- served between federal equitable power and State administra- tion of its own law”) (cleaned up). These principles are far from theoretical or aspirational. To the contrary, they supply a concrete guidepost for resolving this case: a federal court must “ensure that when the objects of the decree have been attained, responsibility for discharg- ing the state’s obligations is returned promptly to the state and its officials when the circumstances warrant.” Frew, 540 U.S. at 442. We have reached that point: leaving the Governor subject to the 1972 decree is no longer warranted or tolerable. Gover- nor Pritzker has demonstrated substantial compliance with the decree and identified and instituted durable remedies to help ensure that compliance sticks. He has earned the right to make employment decisions for the state on his own and not under the terms and conditions of the 1972 decree or the watchful eyes of a special master and federal court. We cannot let perfect be the enemy of the constitutionally adequate. 16 No. 21-1739

2 Beyond these federalism concerns, we have an equally dif- ficult time identifying any remaining Case or Controversy. But within our constitutional design, where powers are sepa- rated between branches, that is all federal courts have the au- thority to do—resolve concrete disputes between adverse par- ties. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–76 (1992); see also Lewis, 518 U.S. at 349 (emphasizing that “[i]t is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm”). Article III brings with it no license to oversee the development of a state’s human resource policies—at least not for 50 years and counting. Eight gubernatorial administrations have come and gone in Illinois since the initiation of this lawsuit. Yet the same named plaintiffs that brought the original suit in 1969 con- tinue to prosecute enforcement of the decree under the district court’s watch and, more recently, the eyes of a special master. It is far from clear this arrangement comports with the Su- preme Court’s emphasis in recent years on separation of pow- ers and the related demands imposed by Article III for estab- lishing and maintaining a Case or Controversy. See Lujan, 504 U.S. at 560–63. The proper equitable analysis of whether the Governor should remain under the 1972 decree requires us “to recognize that the longer an injunction or consent decree stays in place, the greater the risk that it will improperly in- terfere with a State’s democratic processes.” Horne, 557 U.S. at 453. No longer is the Shakman decree’s enforcement necessary to protect the First Amendment rights of state employees and job applicants as declared in Elrod and Rutan. Rather, its No. 21-1739 17

continued application has put a federal court in a role tanta- mount to serving as an indefinite institutional monitor—not much different than an executive or legislative branch over- sight agency—focused much more on ensuring that the Gov- ernor implements best practices rather than eliminates “an ongoing violation of federal law.” Horne, 557 U.S. at 454. This is antithetical to the limited role the Constitution created for the Third Branch: Article III does not “confer on federal judges some amorphous power to supervise the operations of government and reimagine from the ground up” the employ- ment practices of Illinois. Whole Woman's Health v. Jackson, 142 S. Ct. 522, 532 (2021) (cleaned up). Be careful not to misread our conclusion. The district court is not closing. To the contrary, it will remain open and recep- tive to individual claims brought by persons able to allege concrete and particularized injuries as a result of unlawful patronage practices by the Governor or departments under his supervision. And nothing will prevent such plaintiffs from requesting not just money damages, but also appropriate in- junctive relief. So, while today’s decision relieves the Gover- nor of complying with the Shakman decree, the First Amend- ment remains alive and well. Future violations of the rules an- nounced in Elrod and Rutan may see new plaintiffs bringing new cases requesting new and stiff remedies, all the while em- phasizing the tragic history that led to the Shakman decrees. * * * We REVERSE the district court’s denial of the motion to vacate and its expansion of the special master’s duties and REMAND with instructions to VACATE the 1972 consent de- cree as it applies to the Governor of Illinois.