A pair of longtime government reform advocates are pushing back against an attempt by Gov. JB Pritzker and Illinois Attorney General Kwame Raoul to force them to pay the state $1.5 million, alleging they are being punished for opposing Pritzker’s bid to end decades of federal court oversight of corrupt state government hiring practices.
On Dec. 1, attorneys Michael Shakman and Paul Lurie filed a motion in Chicago federal court, opposing Pritzker's efforts to force them to repay fees the court awarded them from the state as Pritzker argued in court that continued federal oversight of state hiring practices was no longer warranted.
“Granting the Governor’s request … would unjustly punish two civil rights champions who achieved massive reforms,” Shakman and Lurie wrote.
“It would set a dangerous precedent chilling civil rights plaintiffs from seeking appointment of masters to bring governmental bodies into compliance with the requirements of the Constitution.”
In early October, U.S. District Judge Edmond Chang formally vacated decades-old court decrees that had required government offices in Springfield to submit their hiring and promotion decisions to scrutiny from court-appointed monitors.
Known as the Shakman Decrees, the court-appointed regime had been in place since at least 1972, when Shakman and Lurie first prevailed in court on claims politically-motivated hiring practices within Illinois state government and in Cook County had illegally favored the supporters of the party and elected officials in power. They alleged – and courts in the ensuing 50 years have agreed – that the so-called patronage hiring violated the First Amendment rights of government workers by forcing them to support those in power or risk missing out on promotions, losing their jobs or not being hired at all, even if eminently qualified for a certain position.
Such patronage hiring practices have been used for decades by power brokers like former House Speaker Michael Madigan and Chicago Alderman Ed Burke to bolster their power base and grab control of the levers of government, while allegedly enriching themselves. Federal prosecutors have indicted both Madigan and Burke on federal corruption charges.
To combat such corruption, the court appointed monitors, known as special masters, and empowered them to review state hiring decisions, except for positions involving policy making. For those kinds of jobs, the courts agreed officials can take politics into account when hiring.
However, in 2020, Pritzker and his political ally, Raoul, challenged the continued duration of the decrees. They argued the state had fixed its corrupt hiring practices, and the decrees had already been in place too long.
Those assertions, however, were fiercely disputed by Shakman and Lurie, as well as the court-appointed special master, attorney Noelle Brennan.
They asserted corrupt hiring practices were continuing and still need oversight and investigation. They notably expressed concern that state officials were abusing the decree’s official policymaker exemptions to pack political hires into union-protected jobs.
The special master was also seeking court permission to investigate claims the Illinois Department of Public Health, under Pritzker, abused Pritzker’s Covid-19 emergency declarations to fill the ranks of the public health agency’s Chicago office with unqualified technicians, including connected friends and family of state workers.
In 2021, Judge Chang agreed, and denied Pritzker’s request, saying “the message” still was “not getting across” to the managers in state agencies doing the hiring.
However, on appeal, the U.S. Seventh Circuit Court of Appeals agreed with Pritzker’s position.
They said they were “not naïve” concerning Illinois’ infamous history of political corruption and patronage hiring. But they said the governor had “earned the right to make employment decisions for the state on his own” and they could not “let perfect be the enemy of the constitutionally adequate.”
They directed Chang to formally end the decrees against the governor.
Within four days of that ruling, however, Pritzker and Raoul filed a motion, asking the court to force Shakman and Lurie to pay the state more than $1.5 million. They claimed that was the amount the state paid in attorney fees, as required by the decree, while fighting Shakman and Lurie over Pritzker’s motion to vacate the decrees in 2020.
The fee demand was made under a court rule which requires losing parties to pay the court costs of prevailing parties in such litigation.
In the motion for fee demand, Pritzker and Raoul claim Shakman and Lurie should have recognized Pritzker was correct and immediately abandoned their opposition.
“In the wake of the Seventh Circuit’s repudiation of Plaintiffs’ arguments, there is no reason in law or equity that the State as opposed to the Plaintiffs should bear the cost of Plaintiffs advancing them and continuing special master monitoring and litigation past when it should have ended,” the attorney general’s office wrote in their motion supporting their fee demand.
On Dec. 1, Shakman and Lurie said Pritzker’s demand was not only unfair and punitive, but also represented an overreach and a misinterpretation of the Seventh Circuit’s ruling.
“… The Court of Appeals did not ‘reverse’ any ‘judgment’ upon which Plaintiffs’ (Shakman and Lurie’s) ‘prevailing party’ status was based,” Shakman and Lurie wrote. “A ‘reversal’ of an order requires a holding that the order was wrongly entered.
“The Court of Appeals made no such ruling with respect to the Decree or the Appointment Orders.”
They noted Pritzker’s fee demand is essentially an ambush, as neither Pritzker nor Raoul gave any indication in the past two years of their intention to demand such a fee award from their opponents.
Shakman and Lurie said they reasonably opposed Pritzker’s attempt to vacate the decree, as they only backed the position of the special master, using information from her reports.
And the reform advocates noted Pritzker’s victory was enabled, in part, by the work of the special masters that continued even as he sought to end the review regime.
“It would be highly unreasonable, and contrary to public policy, to require that Messrs. Shakman and Lurie, who have waged a successful, decades-long battle and achieved very important reforms, to pay more than $1.5 million in Special Master’s fees because at the end of the process they opposed the Governor’s motion to terminate—and did so in reliance on the Special Master’s neutral opinion that additional monitoring was needed,” Shakman and Lurie wrote.
“… Far from being a case where a special master should never have been appointed, this is a case in which the appointment was necessary because of the State’s serious constitutional violations, and the Plaintiffs, Governor, and the Court benefited from the Special Master’s work—through and including the time of the Court of Appeal’s decision.”
Shakman and Lurie are represented in the case by attorneys Edward L. Feldman and Mary Eileen C. Wells, of the firm of Miller Shakman Levine & Feldman, of Chicago; and Brian I. Hays and Ernesto Palomo, of Locke Lord, of Chicago.