While stressing they are "not naive" about Illinois’ infamous culture of political corruption and patronage hiring, a federal appeals panel has nonetheless lifted federal court oversight of state hiring practices, handing a win to Gov. JB Pritzker and perhaps other Chicago Democrats who have urged the courts to return to them the ultimate power to hire, fire and promote without scrutiny.
On Aug. 5, a two-judge panel of the U.S. Seventh Circuit Court of Appeals said the principles of federalism – under which the reach of the federal government over states is limited – compelled them to end the court decrees which since 1972 have forced state offices under the control of the governor to report and justify their employment actions, in the name of rooting out illegal politically-motived hiring decisions.
Illinois Gov. JB Pritzker
Circuit Judge Michael S. Kanne had heard arguments in the case, as well. However, Kanne died in June before the decision could be delivered.
All three judges were appointed by Republican presidents. Scudder was most recently appointed by President Donald Trump in 2018.
“… A federal court must ‘ensure that when the objects of the decree have been attained, responsibility for discharging the state’s obligations is returned promptly to the state and its officials when the circumstances warrant,’” Scudder wrote.
“We have reached that point: leaving the Governor subject to the 1972 decree is no longer warranted or tolerable. Governor 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.”
The appellate decision overturned the ruling of U.S. District Judge Edmond Chang, who in 2020 rejected Pritzker’s contentions that the state had corrected its past illegal patronage hiring practices.
While Judge Chang said the state had made “significant” progress in hiring under federal court supervision, he said evidence presented by reform advocates and court-appointed hiring monitors indicated the anti-patronage “message” still was “not getting across” to the managers in the agencies doing the hiring.
That prompted Pritzker to appeal.
Pritzker and his political ally, Democratic Illinois Attorney General Kwame Raoul, have been in federal court since the summer of 2020, fighting to persuade the court to lift federal oversight of state hiring and promotion decisions. Over that time, Pritzker has repeatedly contended that he believes the federal court’s supervision has gone on too long. The governor and attorney general have argued Illinois’ state government no longer needs the federal court’s supervision to prevent illegal political patronage hiring.
Pritzker’s arguments have taken aim at the court orders known as the Shakman Decrees. Named for Michael Shakman, the lead plaintiff on the cases since 1969, the orders have been entered by judges through the decades since 1972.
They have required state and local governments in Chicago and Springfield to allow court-appointed monitors to review most hiring practices across a range of government agencies and offices, to ensure those hires and promotions comply with federal laws barring political discrimination in government employment.
For government jobs which involve policymaking, the courts have agreed that political allegiances could be an appropriate consideration. A number of those jobs have been consequently exempted from court oversight.
In recent years, however, the court monitors, known as “special masters,” had identified numerous instances in which state agencies have allegedly abused those exemptions, packing political hires into allegedly “exempt,” union-protected jobs created for them, ultimately crowding out other, less politically-connected people from certain jobs and promotion opportunities.
The appellate court, however, said the open-ended role for the federal courts in the process of reforming Springfield has ended, for now.
While acknowledging the alleged evidence of continued corruption reported by the hiring monitors presented an “ongoing and yet unmitigated risk of potential future violations,” the appeals panel said they aren’t enough to allow federal court oversight to continue into perpetuity.
They said the alleged corruption claims merely “concentrate on Governor Pritzker’s compliance with the finest details” of the state’s own so-called “Comprehensive Employment Plan,” which was created as part of the effort to allegedly fulfill the terms of the Shakman Decrees. Scudder and Easterbrook said the CEP is “more of a human resource manual than an articulation of the lines separating lawful from unlawful state employment practices.”
“What most concerns us is that the special master’s oversight – which the district court relied on in denying the Governor’s motion to vacate – has drifted beyond any obligation imposed by the decree and, most certainly, the Constitution,” Scudder wrote.
In noting the state’s purported progress in addressing politically corrupt hiring practices, the judges drew special attention to the work performed under the administration of Republican former Gov. Bruce Rauner, including agreeing to develop and implement the Comprehensive Employment Plan, that Pritzker relied upon to win the day in court.
While limited solely to the Shakman Decrees imposed on the offices controlled by the governor, the Seventh Circuit decision may provide paths to ending Shakman oversight completely in Chicago, as in Springfield.
The decision is almost certain to be immediately cited by other powerful Illinois Democrats, like Cook County Clerk Karen Yarbrough, who has similarly sought to lift Shakman oversight of her office.
Both Yarbrough and Pritzker have used similar arguments to this point, pointing to the principles of federalism embraced by judges like Scudder and Easterbrook.
In siding with Pritzker on the question of whether federal oversight under the Shakman Decrees should continue, Scudder and Easterbrook warned the underlying legal principles that led to the decrees remain in place and the courts remain open to impose new remedial measures, should future state employment decisions again violate workers’ rights under the First Amendment or federal law.
“Be careful not to misread our conclusion,” Scudder and Easterbrook wrote. “… Nothing will prevent such plaintiffs from requesting not just money damages, but also injunctive relief. So while today’s decision relieves the Governor of complying with the Shakman decree, the First Amendment remains alive and well. Future violations of the rules … may see new plaintiffs bringing new cases requesting new and stiff remedies, all the while emphasizing the tragic history that led to the Shakman decrees.”
Shakman and Lurie are represented by attorneys Edward W. Feldman and Mary Eileen Wells, of the firm of Miller Shakman Levine & Feldman; and attorneys Brian I. Hays and Ernesto Palomo, of the firm of Locke Lord, all of Chicago.