CHICAGO — Longtime Illinois government reform watchdogs say Gov. JB Pritzker is at least months too early in seeking to throw off anti-corruption oversight of Illinois state hiring practices, telling a panel of federal appeals court judges that the state has not yet put in place the policies they say the state has agreed are needed to weed out and block employment and promotion corruption in Springfield.
Pritzker, however, argued the oversight should end now, because such allegations of corruption are merely "hypothetical" at this point.
U.S. Seventh Circuit Court of Appeals Judges Frank Easterbrook, Michael Kanne and Michael Scudder heard arguments on Dec. 10 from Pritzker’s attorney, Alex Hemmer, as well as Brian Hays, who is representing Michael Shakman and Paul Lurie, the lawyers who first took on the Cook County Democratic Party’s patronage operations in the 1970s. Shakman and Lurie have worked together in the years since to win federal court decrees - which are collectively known as "Shakman Decrees" - requiring government agencies in Chicago and Springfield to submit to oversight of hiring and management promotion, to tamp down politically motivated patronage hiring, which bred corruption.
Michael Shakman
| Miller Shakman Levine & Feldman
Hemmer is Illinois' deputy solicitor general, and was arguing on behalf of the Illinois Attorney General's Office, which is representing Pritzker in the action.
Hays is an attorney with the firm of Locke Lord, of Chicago.
Pritzker has asked the appellate judges to end decades of oversight and let state officials alone ensure government agencies aren’t violating federal law by using politics in hiring and promotion decisions.
Hemmer opened by asserting U.S. District Judge Edmond Chang rejected Pritzker’s request to end oversight in March because he considers oversight “necessary to prevent hypothetical future violations” of hiring rules. He also said Shakman and Lurie lack standing, since they are not current or potential state employees, and argued there isn’t any evidence of improper hirings or movement to undo already enacted reforms.
Scudder pushed back on whether Chang abused judicial discretion by leaving the hiring decrees in place, noting Illinois’ long and recent history of politically-connected employment decisions. Hemmer said Pritzker’s request to end the oversight should’ve been granted absent clear evidence of ongoing violations and further that Chang didn’t explore whether the state would backslide absent continued judicial involvement. He also said legal options exist for people who feel they are improperly passed over for employment in violation of anti-patronage laws.
In his opening remarks, Hays said the state failed to adequately make its case to Chang and argued the Seventh Circuit panel should affirm. A party moving to end a decree, he said “must show both that the decree’s objects have been attained and that it is unlikely in the absence of the decree that the unlawful acts will reoccur.”
Scudder said it would be good to know statistics about political hiring in other states without judicial oversight to determine if the decrees are effectively suppressing constitutional violations, either through legal record or academic research. Hays said Pritzker’s team never raised that issue, so his team didn’t prepare a response. However, he said, as of 2014 there was an accepted understanding of “widespread, decades-long political patronage” in Illinois.
Kanne asked Hays if he had any concerns about a consent decree extending too long or drifting into a broader scope than was initially intended.
“A federal court order, when it’s in place, must be obeyed until it’s vacated,” Hays responded. Since the state failed to prove its case for vacation, he continued, Chang was correct to leave the order in place. He pointed to other governmental bodies in Illinois that have moved beyond hiring oversight and said the state has yet to prove such success.
“As you describe what’s going on,” Easterbook said, “there is just a judicial superintendent to prevent constitutional violations. That doesn’t sound like a case or controversy. First you have to have an assertive violation.”
Hays said absent continued oversight, there are candidates for promotions who would be prejudiced by patronage systems. When Easterbrook reasserted there wasn’t a present case, Hays pointed back to 2014. Kanne said it was fair to consider that recent enough to be relevant, but questioned whether the decrees have become about minimizing risk.
“That’s my whole problem,” Easterbrook said. “The idea that monitoring is a real case or controversy kind of confuses the judiciary with the Federal Trade Commission.”
Although Hays insisted the continued oversight is part of agreed upon remedies to patronage, he also said “the sunset of this decree is on the very near horizon. It’s a matter of months.”
In support of that position, Hays pointed to the state filing a comprehensive employment plan in November 2019 establishing proper conduct going forward, but said Pritzker asked to have the decree dropped before three months before training began on implementing the plan.
“They have to actually implement the remedy,” Hays said.
When Hemmer regained the floor, Easterbrook suggested it might be appropriate for Pritzker’s team to suggest the plaintiff class be decertified because Shakman and Lurie are not members and cannot be representatives. Hemmer also said the comprehensive employment plan Hays referenced “is not, and has never been, part of what the state believes is a durable remedy in this case.”
Hemmer also clarified that a renewed motion to vacate the order in front of Judge Chang takes for granted the arguments presented on appeal.
Shakman and Lurie, who are licensed lawyers in Illinois, have been represented by the Chicago firm of Locke Lord, and Shakman's firm of Miller, Shakman, Levine & Feldman.
Lurie is with the Chicago firm of Schiff Hardin.