Seventh Circuit Goes Off-Script to Express “Grave … Concerns” About Continuation of 1972 Consent Decree

In Shakman v. Clerk of Cook Cnty., No. 20-1828  (7th Cir. Apr. 16, 2021), while affirming the district court’s denial of a motion to vacate a consent decree over hiring in Cook County, Illinois, the panel urges “[d]iligence, not dormancy” in future proceedings.

For those living in Northeastern Illinois, the Shakman Decrees are well-known to Chicago and Cook County job-seekers. “The 1972 Decree enjoined city and county  officials from ‘conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor.” Defendant Cook County Clerk remains subject to the 1972 Decree. The court later entered a 1991 decree extending the earlier prohibitions and “require[d], among other conditions, that officials post ‘prior public notice of the opportunity to apply for and be hired for’ all positions beyond a few specified exempt roles.’”

“Though the Cook County Clerk remains subject to the 1972 and 1991 Decrees, the case appears to have sat dormant on the federal docket for the last 30 to 40 years. No plaintiff has ever challenged the Clerk’s compliance. Nor has the Clerk ever sought to terminate or modify the Decrees. The case came back to life for the Clerk in 2019,” when the plaintiffs brought an enforcement action and sought appointment of a special master. “[T]he magistrate judge found that the Clerk violated the 1991 Decree …[,] invoked Federal Rule of Civil Procedure 53 and appointed a special master to oversee compliance within the Clerk’s Office.”

On appeal, the panel holds that it lacks jurisdiction over the appointment of the special master. “Enlisting the assistance of a special master is a tool district courts may use to help resolve ongoing disputes. The appointment does not terminate the litigation, however, and is thus not a final judgment appealable under § 1291 . . . . The appointment of a special master did not amount to [an appealable] modification of the Consent Decrees, but instead reflected the magistrate judge’s invocation of a procedural tool to help monitor the parties’ compliance with the existing requirements of the Decrees.”

The panel also holds that the “magistrate judge did not abuse his discretion in determining that developments in the law of standing since 1971 did not warrant vacating the Consent Decrees.”

Nevertheless, the panel reserves a few pages to declare its “grave federalism concerns … with the fact that the Clerk of Cook County has been under the thumb of a federal consent decree for the last 50 years. Such entrenched federal oversight should have raised red flags long ago.” Of the “the more than 7,000 entries on the federal docket” in the case, most appeared to be rote status reports. “Such stagnation is intolerable . . . . Federal injunctions interfere with local control over local decision making, and, in turn, local democracy does not work as our federal constitutional design envisions.”

The panel concludes: “Over time, the Shakman Decrees have found a home on the docket of judge after judge in the Dirksen Courthouse. In April 2020, the then-assigned magistrate judge determined that the objects of the Shakman Decrees have not been obtained as to the Clerk of Cook County. Today’s decision does not upset that conclusion. But we trust—and expect—that the violations identified by the magistrate will be remedied with appropriate speed, and that, moving forward, all parties will work together to ensure swift compliance. It is time to get these cases off the federal docket, and all indications are that the newly assigned district judge shares the same objective.”

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