A federal appeals panel affirmed a decision that the Chicago-area clerk’s office needs an independent monitor in place to prevent political hiring and firing.
CHICAGO (CN) — A set of decades-old consent decrees aimed at ending patronage in Illinois government will stay in place for now, a federal appeals panel ruled Friday.
The so-called Shakman decrees from 1972 and 1991 are still needed to oversee hiring practices, at least when it comes to the Cook County Clerk’s Office, according to the Seventh Circuit. However, the panel warned that the decrees had been in place for far too long.
“Permitting a consent decree over an arm of state or local government (here, the Cook County Clerk) to anchor itself on a federal docket for decades is inconsistent with our federal structure,” U.S. Circuit Judge Michael Y. Scudder, a Donald Trump appointee, wrote in the panel’s opinion.
50 years of federal oversight for political hiring and firing practices in the state began with a lawsuit filed by attorney Michael L. Shakman in 1969.
At the time Shakman, who still practices with his firm Miller, Shakman, Levine & Feldman in Chicago, was trying to run as an independent candidate for delegate to the 1970 Illinois Constitutional Convention and was up against the Democratic Party machine run by notorious former Chicago Mayor Richard J. Daley.
There was a “a massive army of patronage workers who got their jobs and could only keep them if they did political work,” Shakman told Courthouse News last November.
Shakman and several other plaintiffs sued for an injunction, and eventually the decrees were put in place to put a stop to patronage in a wide range of city, county and state departments. While many of those departments have proven themselves and been released from the decrees, others such as the Illinois Governor’s Office, Cook County Assessor and Cook County Clerk are still under watch.
A motion was filed in 2019 to appoint a special monitor for the current Clerk Karen Yarbrough, who was elected in 2018. According to the motion, Yarbrough was changing the job positions that were exempt from the decrees and creating new exempt positions without court approval in order to make political hires. The clerk also created a rotational schedule for supervisors in her office, sending those without political connections to far flung locations as punishment, the motion alleged.
U.S. Magistrate Judge Sidney I. Schenkier agreed and appointed a monitor for the clerk’s office in April of last year.
Yarbrough appealed to the Chicago-based Seventh Circuit, asking that the monitor be removed and that the decrees be vacated entirely, calling them outdated and unnecessary.
“I think there’s an exceptional federalism problem,” Yarbrough’s attorney Adam R. Vaught with Hinshaw & Culbertson said during oral arguments in her appeal last November.
Vaught said the last clerk’s report was filed in 2002, with nothing happening from then until a monitor was requested 17 years later.
“It became a dormant consent decree which was only picked up when a new office holder came in,” he said.
The plaintiffs’ attorney, Brian I. Hays of Lock Lord, said the plaintiffs did not want to keep the case going forever but Yarbrough’s office had to show it was complying with the decrees in order for them to be vacated.
“This is not a difficult consent decree to comply with,” he added.
The appeals panel on Friday dismissed the clerk’s request to remove the monitor, saying it did not have jurisdiction to do so since the appointment was a procedural order and not a final appealable judgment.
However, the panel did have jurisdiction to affirm the magistrate judge’s decision not to vacate the decrees for the clerk.
“As the clerk sees it, amorphous and judicially unmanageable concepts of political equality inevitably govern our review, and enforcement of the consent decrees is no longer equitable,” Scudder wrote. “We see things differently.”
He added, “If a party complied in good faith and made a reasonable effort to conform its conduct, vacating a consent decree may be appropriate. But the magistrate judge found no such effort or record of compliance by the clerk. To the contrary, the magistrate determined that the clerk’s ongoing violations reflect the precise political patronage the consent decrees seek to end.”
The panel did voice concern that the consent decrees had been dragged out for longer than they should have though, despite a lack of compliance with their aims.
“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,” the ruling states. “Federal courts are not here to oversee and monitor the hiring practices of municipal government for decades on end.”
The appeals court called for a swift end to the decrees by working on compliance for the remaining departments still under observation.
Scudder was joined on the panel by U.S. Circuit Judges Frank H. Easterbrook and Michael S. Kanne, both Ronald Reagan appointees.
“The plaintiffs share the court’s desire for the remaining defendants in the Shakman litigation to reach compliance with the consent decrees so that federal court oversight can come to an end,” Hays told Courthouse News on Friday.
“But as the panel held, the burden is on the clerk’s office to prove that it has implemented a durable remedy that will prevent unlawful political discrimination from effecting employment decisions,” Hays added. “Developing and implementing employment policies and procedures is entirely within the control of the clerk’s office.”
Yarbrough’s attorney did not respond to a request for comment.