IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...€¦ · The Special Master has completed her responsibilities under the November 18, 2014 Rule 53 Order appointing her [Dkt.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL L. SHAKMAN, et al.,

Plaintiffs,

v.

DEMOCRATIC ORGANIZATION OF COOK

COUNTY, et al.,

Defendants.

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Case No. 69-2145

Judge Edmond E. Chang

GOVERNOR’S CROSS-MOTION TO VACATE THE ORDERS APPOINTING THE

SPECIAL MASTER AND RESPONSE TO PLAINTIFFS’ MOTION REGARDING THE

SCOPE OF THE SPECIAL MASTER’S RESPONSIBILITIES

Case: 1:69-cv-02145 Document #: 6947 Filed: 07/14/20 Page 1 of 34 PageID #:64945

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TABLE OF CONTENTS

I. RELEVANT BACKGROUND ............................................................................................... 3

a. The 1972 Shakman Decree .................................................................................................. 3

b. The 2014 Special Master Appointment regarding the Illinois Department of

Transportation (IDOT). ........................................................................................................ 4

c. The 2017 Order Regarding State Exempt Employment. ..................................................... 6

d. 2016-present: Extensive monitoring and oversight by the Office of Executive Inspector

General and Hiring & Employment Monitoring Division. .................................................. 8

e. 2014-present: Extensive monitoring and oversight by the Special Master. ....................... 10

II. ARGUMENT......................................................................................................................... 13

a. There is no factual or legal basis to expand the Special Master’s authority. ..................... 14

b. The Orders appointing the Special Master should be vacated. .......................................... 26


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TABLE OF AUTHORITIES

Cases

Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) ........................................................... 14, 23, 24

Com. of Virginia v. Maryland, 371 U.S. 943 (1963) .................................................................... 29

Evolution, Inc. v. Suntrust Bank, 2004 WL 2278559, at *3 (D. Kan. Sept. 29, 2004) ................. 29

Hicks v. Midwest Transit, Inc., 531 F.3d 467 (7th Cir. 2008) ...................................................... 17

Horne v. Flores, 557 U.S. 433 (2009) .............................................................................. 15, 16, 26

Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698 (7th Cir. 1984) ........................ 13

Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011) .................................. 24

Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................................ 19

Louisiana v. Mississippi, 384 U.S. 24 (1966) ............................................................................... 29

People Who Care v. Rockford Bd. of Educ. Sch. Dist. No. 205,

961 F.2d 1335 (7th Cir. 1992) ............................................................................................ 26, 27

People Who Care v. Rockford Bd. of Educ., Sch. Dist. 205,

246 F.3d 1073 (7th Cir. 2001) .................................................................................................. 20

Plotkin v. Ryan, 239 F.3d 882 (7th Cir. 2001) .............................................................................. 18

Prometheus Radio Project v. Fed. Commc’ns Comm’n, 939 F.3d 567 (3d Cir. 2019) ................ 24

Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 991 F.2d 1080 (3d Cir. 1993) ........................... 13

Roberts v. Cty. of Mahoning, Ohio, 495 F. Supp. 2d 784 (N.D. Ohio 2007) ............................... 29

Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) .............................................................................. 23

Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir. 1989),

aff’d in part, rev'd in part, 497 U.S. 62 (1990) ......................................................................... 14

Salazar by Salazar v. D.C., 896 F.3d 489 (D.C. Cir. 2018) ............................................. 19, 24, 25

Shakman v. City of Chicago, 426 F.3d 925 (7th Cir. 2005) .......................................................... 20

Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987) .................................................................. 3, 20

Williams v. Lane, 851 F.2d 867 (7th Cir. 1988) ........................................................... 2, 13, 14, 22

Statutes

5 ILCS 430/20-10 ....................................................................................................................... 8, 9

5 ILCS 430/20-20 ........................................................................................................................... 9

5 ILCS 430/20-70 ........................................................................................................................... 9


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The Special Master has completed her responsibilities under the November 18, 2014 Rule

53 Order appointing her [Dkt. 4020] and the May 2, 2017 Order expanding her charge [Dkt.

5004]. Plaintiffs do not argue otherwise: their Motion does not identify any of the Special

Master’s delineated responsibilities that remain unfulfilled. Thus, the subject of Plaintiffs’

motion, and this cross motion, is what happens next.

The State believes that, once the Special Master has completed the responsibilities

assigned pursuant to Rule 53, that achievement should end the Special Master’s appointment,

and the 1972 decree. The orders appointing the Special Master contemplated that she would

facilitate, and the completion of her responsibilities would mark, the State’s compliance with the

1972 decree. See 10/22/14 Hr’g Tr. 17:7-11 (attached as Exhibit A) (“A special master

performing those very targeted functions … will help ensure that IDOT’s employment practices

comply with the requirements of the decree.”); Dkt. 4798 at 3 (“A review of the exempt positions

at the other agencies will allow the Court to ensure the requirements of the 1972 decree (and the

constitution) are met by ensuring that only positions that truly qualify for exempt status receive

that label, and that robust processes are in place to ensure that remains the case.”). The Court

previously declined Plaintiffs’ requests for a broader scope of responsibilities for the Special

Master, declined to impose a supplemental relief order, and declined additional injunctive relief

– instead providing the Special Master with the set of responsibilities delineated by the Court to

address the past violations of the 1972 decree. Now that those responsibilities are complete,

there is no basis to reconsider or expand the scope of relief awarded six years ago. And there is

absolutely no new factual basis at this point to support expanded relief.

The Special Master’s appointment should conclude for the additional reason that the 1972

Shakman decree itself – upon which the appointment of a Special Master necessarily rests –


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should be vacated. The State has instituted a durable remedy, but in addition there are serious

deficiencies, including the lack of an ongoing case-and-controversy and a substantial federal

claim, that render ongoing enforcement of the decree improper. Concurrently with this cross

motion and response, the State has filed a Rule 60(b) motion to vacate the decree. Dkt. 6946.

For the sake of brevity, familiarity with the State’s Rule 60(b) motion is assumed and only

certain relevant aspects are repeated here.

The Plaintiffs reach a different conclusion. They argue that the State cannot exit the 1972

consent decree unless and until the Special Master investigates and monitors the entirety of the

State’s employment policies and practices, including aspects for which the Court denied

Plaintiffs’ earlier motions to extend her authority and aspects not covered by the 1972 consent

decree. This position finds no support in logic or law; Plaintiffs do not offer any authority

suggesting that the price of seeking to exit a consent decree is unfettered court monitoring for an

indefinite duration. This is particularly true where Plaintiffs’ arguments have already been

considered and rejected by the Court.

Plaintiffs’ inability to support their position with case law is not surprising. “[T]he

appointment of a special master is the exception and not the rule and … there must be a showing

that some exceptional condition requires such an appointment.” Williams v. Lane, 851 F.2d 867,

884 (7th Cir. 1988). A special master is an “extraordinary and disfavored recourse.” Id. at 886

(Flaum, J., concurring). Here, there is no showing at all – let alone a showing of an “exceptional

condition” – to justify the continued appointment of a special master. Now that the Special

Master has completed her duties, signaling the State’s compliance with the 1972 decree, the

Orders appointing the Special Master should be vacated, not expanded.


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I. RELEVANT BACKGROUND

The following is relevant background for this cross-motion and response. A more

complete background is detailed in the State’s Rule 60(b) motion. Dkt. 6946

a. The 1972 Shakman Decree

The 1972 Shakman decree prohibits “the coerced political work demanded of those

already employed by the government as a condition of continued employment.” Shakman v.

Dunne, 829 F.2d 1387, 1399 (7th Cir. 1987) (“Shakman II”). It states in relevant part:

E. Each and all of the defendants and others named or referred to in paragraph C

above are permanently enjoined from directly or indirectly, in whole or in part:

(1) 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.

(2) knowingly causing or permitting any employee to do any partisan political

work during the regular working hours of his or her governmental

employment, or during time paid for by public funds; provided that nothing

contained in this subparagraph (2) shall prohibit governmental employees

from voluntarily using vacation time, personal leave time or from taking

nonpaid leaves of absence to do political work, but permission to do so must

be granted nondiscriminatorily.

(3) knowingly inducing, aiding, abetting, participating in, cooperating with or

encouraging the commission of any act which is proscribed by this paragraph

E, or threatening to commit any such act.

The decree by its terms is limited in scope in two critical ways. It is limited

geographically to “employment within the Northern District of Illinois.” 1972 consent decree ¶

B. By its terms, the decree does not extend to “hiring” – it is limited to “those already employed

by the government.” 1972 consent decree ¶ E. And it cannot be extended to “hiring” because

the Seventh Circuit held in 1987 that voters and candidates for public office do not have standing

to challenge governmental hiring policies. Shakman II, 829 F.2d at 1399 (“Because we have

determined that the plaintiffs do not have standing to assert the claim they bring to this court, we


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can proceed no further…. Those aspects of the complaint which challenge the patronage hiring

practice of the defendants are dismissed.”).

b. The 2014 Special Master Appointment regarding the Illinois Department of

Transportation (IDOT).

In 2014 – forty-two years after entry of the decree – Plaintiffs filed an “Amended Motion

for Entry of Supplemental Relief.” Dkt. 3744. The Plaintiffs cited as the principal basis for their

motion an August 14, 2013 report by the Better Government Association. Id. at 6. The

Plaintiffs’ motion centered on the argument that IDOT had taken advantage of the fact that the

State did not have a single, comprehensive, and accurate list of “exempt” job positions.

Plaintiffs argued that IDOT inappropriately placed political hires into “staff assistant” positions

that should have been filled without regard to political preference.1 As Plaintiffs described in

their motion:

The scheme worked as follows: IDOT created or re-designated numerous “staff assistant”

or “executive secretary” positions, which it designated as Rutan-exempt even though the

jobs performed by those placed in the positions did not in actuality require the sort of

policy-making tasks that would qualify the positions as exempt. These faux-exempt

positions were filled with employees based on political considerations rather than

qualifications. Many of these hires were ‘dumped’ on IDOT managers who did not ask

for or want to manage the employees. Later … the politically-hired employees were

promoted or transferred into non-exempt, often unionized positions in order to make it

harder to terminate the employees. These promotions or transfers were motivated by

political considerations, in violation of both Rutan and the 1972 Order.

Id. at 7; see also Dkt. 4128 at 5 (“[T]he Plaintiffs filed an Amended Motion for Entry of

Supplemental Relief in 2014, alleging that IDOT improperly created or reclassified numerous

‘Staff Assistant’ or ‘Executive Secretary’ positions as Rutan-exempt (e.g., positions where party

affiliation is an appropriate requirement for the effective performance of the job) even though the

1 “Exempt” positions are those for which political affiliation is an appropriate consideration because they

involve policymaking or confidential roles. “Non-exempt” positions are those for which political

affiliation is not an appropriate consideration.


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work performed by those employees should be Rutan-covered. The Plaintiffs further alleged that

the ‘faux-exempt positions’ were improperly filled with employees based on political

consideration rather than qualifications—in violation of Rutan and the 1972 Decree.”). Plaintiffs

specified that the complained-of practices “began in or about 2003 under Governor Blagojevich

and continued until the end of 2011 or early 2012 under Governor Quinn.” Id. at 6.

Plaintiffs sought “authority to take discovery” and to obtain relief including “additional

injunctive relief”; the “appointment of a special master … to investigate and recommend

appropriate reforms in the employment practices for non-exempt jobs under the jurisdiction of

the Governor within the Northern District of Illinois”; “Development … of a hiring, promotion,

reassignment and employment plan for non-exempt positions”; and “Development … of a list of

employment positions that are properly exempt from the rules against political sponsorship or

conditioning employment upon political factors or considerations.” Id. at 9-10.

The Court awarded Plaintiffs the relief it determined was appropriate. Specifically, the

Court appointed a Special Master for IDOT, finding “that compliance with the decree is best

served by having a transparent process in which an agent of the Court is involved in further

investigating the scope and reason for what occurred, recommending the measures that may be

necessary to prevent any recurrence and then in assessing the implementation of those efforts to

ensure that they are effective.” Id. 16:25-17:6. The Court explained that “[a] special master

performing those very targeted functions will not usurp the responsibilities of officials to run the

affairs at IDOT, but rather will help ensure that IDOT’s employment practices comply with the

requirements of the decree.” Id. 17:7-11.

The Court declined to afford Plaintiffs the additional relief that they had sought. It

declined to order relief as to agencies under the Governor’s jurisdiction except IDOT; it declined


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additional injunctive relief; and it declined to allow Plaintiffs to take discovery. 10/22/14 Hr’g

Tr. 9:12-22. While Plaintiffs argued that their 2014 evidence “establishe[d] the need for

supplemental relief with respect to the 1972 Order similar to the supplemental relief orders

entered by the Court in the last several years with respect to” a number of other defendants, Dkt.

3744 at 9, the Court did not impose such an order.

The Court instead entered its Order appointing Noelle C. Brennan as Special Master

pursuant to Rule 53 on November 18, 2014. Dkt. 4020. The Court charged the Special Master

with investigating IDOT’s misuse of the “staff assistant” position, and with recommending

measures to prevent recurrence and to remedy the past violations. That Order instructed that

“[t]he Special Master … shall with all reasonable diligence”:

(i) investigate the scope and reason for any violation of the 1972 Decree regarding

the Illinois Department of Transportation (“IDOT”),

(ii) recommend measures that may be necessary or appropriate to prevent any

recurrence,

(iii) assess the implementation of those efforts to ensure that they are effective,

(iv) address whether positions in IDOT labeled as exempt were properly exempt under

applicable legal principles, and

(v) make recommendations for how to remedy any violations of the 1972 Decree.

Id. ¶ 3.

c. The 2017 Order Regarding State Exempt Employment.

In 2016, Plaintiffs moved to expand the Special Master’s responsibilities to include

certain aspects of exempt employment at the Governor’s agencies beyond IDOT. Dkt. 4676.

Specifically, Plaintiffs requested an expansion of the Special Master’s responsibilities to include:

(i) Reviewing all positions under the jurisdiction of the Governor designated as

“exempt”;

(ii) Developing a single and comprehensive list of all “exempt” positions – an


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“Exempt List”;

(iii) Developing procedures for revision of the Exempt List; and

(iv) Investigating whether certain positions designated as “exempt” qualify under

applicable law.

Id. at 1-2.

Plaintiffs’ 2016 motion argued that “[t]he relief sought in this Motion” – expansion of a

Special Master’s jurisdiction – “is warranted because the process of developing an Exempt List

has not proceeded with reasonable speed ….” Id. at 4. They noted that their “prior motions that

led to the appointment of the Special Master in 2014 resulted from the widespread unlawful

practices in defining and filling exempt positions under the Quinn Administration,” and repeated

their core concern that “[t]he lack of a single comprehensive list of Exempt Positions and of an

established procedure for revising the list of Exempt Positions permitted the Quinn

administration to appoint approximately 300 individuals as purportedly exempt IDOT ‘technical

assistants’ despite the fact that they did not warrant exempt status.” Id. at 4.

The Court granted the motion and expanded the Special Master’s responsibilities to

extend to reviewing exempt positions in the Governor’s other agencies beyond IDOT

(“Statewide”). Dkt. 4798. The Court explained that “[a] review of the exempt positions at the

other agencies [besides IDOT] will allow the Court to ensure the requirements of the 1972

decree (and the constitution) are met by ensuring that only positions that truly qualify for exempt

status receive that label, and that robust processes are in place to ensure that remains the case.”

Id. at 3. The State had agreed that a review of exempt positions was appropriate, but objected to

the expansion of the Special Master’s responsibilities because the work could be conducted

effectively by “the newly established Hiring and Employment Monitoring unit in the Office of

the Executive Inspector General.” Dkt. 4725 at 1.


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In appointing the Special Master, the Court reasoned that “in our judgment, involving the

Special Master in the endeavor from the outset will better promote effectiveness of the review,

and will cost the State less money in the long run,” and that “[t]he support and assistance of the

Special Master is vital to ensure that review of exempt positions across the State occurs within a

reasonable time frame.” Dkt. 4798 at 4, 6. Although the Court “applaud[ed] the creation of” the

HEM unit, it explained that “we are not convinced that the newly-created HEM unit currently

possesses the experience or expertise to take on the investigation and review of exempt positions

– and the process for determining which positions are exempt – for the entire state of Illinois

without the active involvement of the Special Master.” Id. at 5. At the same time, the Court

explained that “[o]ne goal of our order is to encourage the fastest and most efficient transfer of

knowledge and experience from the Special Master to HEM unit employees so that they may

carry more of the burden.” Id. at 6.

The Court therefore expanded the authority of the Special Master to encompass the four

responsibilities listed above that the Plaintiffs had set out in their motion. Id. at 6-7. Those

responsibilities were formalized in an Order expanding the Special Master’s responsibilities

under Rule 53. Dkt. 5004. The four responsibilities reduce to two principal ones: developing a

comprehensive “Exempt List” and developing procedures for revising that list. Id. at 3.

d. 2016-present: Extensive monitoring and oversight by the Office of Executive

Inspector General and Hiring & Employment Monitoring Division.

In the State Officials and Employees Ethics Act (“Ethics Act”), at 5 ILCS 430/20-10(a),

the Illinois General Assembly created the Illinois Office of Executive Inspector General

(“OEIG”), “a fully independent office with separate appropriations” under “the direction and

supervision of an Executive Inspector General.” The Executive Inspector General is appointed

by the Governor, with the advice and consent of three-fifths of the Illinois Senate, to a five-year


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term from which she can only be removed for cause. 5 ILCS 430/20-10(b), (f). The current

Executive Inspector General, Susan M. Haling, was appointed by Governor Bruce Rauner and

reappointed by Governor Pritzker. The OEIG has approximately 72 full-time equivalent

employees and had an annual operating budget in fiscal year 2020 of approximately $7.75

million.

Under the Ethics Act, the OEIG has broad jurisdiction “to investigate allegations of

fraud, waste, abuse, mismanagement, misconduct, nonfeasance, misfeasance, malfeasance, or

violations or this Act or violations of other related laws and rules.” 5 ILCS 430/20-10(c). The

statute specifically charges OEIG with “review[ing] hiring and employment files of each State

agency … to ensure compliance with Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990),

and with all applicable employment laws.” 5 ILCS 430/20-20(9). To fulfill its statutory role, the

OEIG has the authority to issue subpoenas and compel the attendance of witnesses, and a person

refusing to comply with a subpoena “shall be subject to punishment as may be determined by a

court of competent jurisdiction.” 5 ILCS 430/20-20(2), (3) and 20-35. State officers and

employees have an express duty “to cooperate with the EIG … in any investigation undertaken

pursuant to [the Ethics] Act.” 5 ILCS 430/20-70. And the failure to cooperate with the OEIG “is

grounds for disciplinary action, including dismissal.” Id.

In 2015, the OEIG created a separate compliance division known as the Hiring &

Employment Monitoring Division – referred to as “HEM.” The Executive Inspector General

submitted a memorandum to the Court that describes in detail the OEIG’s role in monitoring and

investigating State hiring and employment. Dkt. 6936. In it, the Executive Inspector General

notes that the OEIG’s “investigations … have brought many hiring issues to the attention of the

State and the public, including the IDOT investigation that prompted these proceedings.” Id. at


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24. The Executive Inspector General’s Memorandum further describes how “[i]n addition to

identifying hiring issues through its investigations, the OEIG recognized the necessity of a

vigorous compliance role, and thus expended significant time and resources to create a 10-person

compliance unit, HEM, to work directly with agencies to implement, monitor, and enforce

proper State hiring practices and procedures.” Id. HEM’s ten employees “include[e] a director,

three attorneys, a supervising analyst, four analysts, and a project manager.” Id. at 3. As that

staffing reflects, the OEIG has devoted significant resources to “its mission of ensuring

competitive State hiring free of political or any other manipulation.” Id. at 24.

e. 2014-present: Extensive monitoring and oversight by the Special Master.

From 2014 to present, the Special Master and her team have performed extensive

monitoring. “The Special Master has been investigating and collecting information for the past six

years relating to the State’s employment practices at IDOT, and for the past three years at other State

agencies.” Dkt. 6720 at 2.

This investigation and monitoring is extraordinarily involved. The Special Master’s team

has near-daily communications with IDOT. One member of her team is routinely on premises at

IDOT headquarters in Springfield, primarily monitoring hiring sequences. Another member

monitors interviews in the Chicago area. The Special Master’s recent focus has been the

conversion of positions from technical to code, hiring sequences for positions going from exempt

to covered, the process and sequences involving former Staff Assistants, temporary assignments,

exempt status of positions and exempt appointments, Civil Service Commission and 4(d)(3)

exemption requests, monitoring compliance with the Comprehensive Employment Plan and

previously issued CMS guidance, seasonal snowbird and internship programs, minimum

qualifications in position descriptions, and investigating complaints. The Special Master team

routinely requests and reviews the entire file for a given hiring sequence, an employee’s entire


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personnel file, and other detailed information. It notes the Special Master’s objection or lack of

objection to specific State employment decisions.

The Special Master has filed eleven reports with respect to IDOT, totaling approximately

250 pages. Those reports contain a number of recommendations for IDOT to adopt, most of

which have been adopted. The Special Master’s most recent IDOT report explains that “several

of the Special Master’s long-standing recommendations to IDOT have been accomplished or are

on track for completion.” Dkt. 6900 at 1; id. at 22 (“IDOT accomplished major milestones…”).

The report notes some of the Special Master’s recent recommendations to “apply a consistent

policy regarding crediting master’s degrees,” Dkt. 6900 at 10 n.17, “that IDOT create and

present a plan to ensure a wider applicant pool for seasonal internship positions,” id. at 16, and

that, rather than the 120 workday period that IDOT and the Teamsters Collective Bargaining

Agreement utilize as the initial term for a temporary assignment, “[t]he Special Master

recommends that temporary assignments should not exceed 90 days.” Id. at 20 n.26.

From 2017 to present, the Special Master and her team likewise have had significant

involvement in exempt employment at all of the agencies under the Governor’s jurisdiction. The

results of the Special Master’s work with respect to the Governor’s other agencies are described

in six reports and a supplement, totaling another 100 pages. The Special Master solicits and

investigates both anonymous and named complaints regarding the State’s employment practices

through the website www.ShakmanIllinois.com. See Dkt. 4128 at 3. To give the Court a sense

of how thorough the Special Master’s investigation and review has been, the cost outlay to the

State with respect to the Special Master’s team (currently six people) has been over $4 million –

which equates to approximately 16,000 hours of work at the Special Master’s compensated rate

of $250 per hour.


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At this point, the Special Master’s nine responsibilities have been accomplished. With

respect to IDOT, she has, in the nearly six years of her appointment to date:

(i) investigated the scope and reason for any violation of the 1972 Decree regarding

the Illinois Department of Transportation (“IDOT”),

(ii) recommended measures that may be necessary or appropriate to prevent any

recurrence,

(iii) assessed the implementation of those efforts to ensure that they are effective,

(iv) addressed whether positions in IDOT labeled as exempt were properly exempt

under applicable legal principles, and

(v) made recommendations for how to remedy any violations of the 1972 Decree.

With respect to the Governor’s other agencies, she has, in three years:

(i) reviewed all positions under the jurisdiction of the Governor designated as

“exempt,”

(ii) developed a single and comprehensive list of all “exempt” positions – an “Exempt

List,”

(iii) developed procedures for revision of the Exempt List, and

(iv) investigated whether certain positions designated as “exempt” qualify under

applicable law.

In late 2019, the State began discussions with the Plaintiffs and the Special Master about

exiting the decree. See Dkt. 6712 at 2 (“The State has been very upfront in stating its intention to

seek to exit the 1972 Decree given all it has accomplished to comply with this Court’s orders.”).

On January 27, 2020, the Court set a briefing schedule for the State’s Rule 60(b) motion. Dkt.

6674. After the State was delayed in filing its motion, the Plaintiffs filed their motion to expand

the Special Master’s jurisdiction on March 10, 2020. Dkt. 6789. Plaintiffs never have argued

that the Special Master’s delineated responsibilities remain unfinished; rather, as their motion

demonstrates, they argue her responsibilities should be expanded to include the entirety of the

State’s employment practices.


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II. ARGUMENT

Special masters are an intrusive tool to be used sparingly. “[T]he appointment of a

special master is the exception and not the rule and … there must be a showing that some

exceptional condition requires such an appointment.” Williams, 851 F.2d at 884. A special

master is an “extraordinary and disfavored recourse.” Id. at 886 (Flaum, J., concurring). “If

there is an overarching principle regarding the utilization of masters in contemporary federal

practice, it is restraint.” See Charles Alan Wright & Arthur R. Miller, et al., 9C Federal Practice

& Procedure § 2605 (3d ed. 2009 Supp.); see also Jack Walters & Sons Corp. v. Morton Bldg.,

Inc., 737 F.2d 698, 712 (7th Cir. 1984) (“In this more than in any other circuit we must be alert

to the danger of overusing special masters.”); Prudential Ins. Co. of Am. v. U.S. Gypsum Co.,

991 F.2d 1080, 1081, 1088 (3d Cir. 1993) (issuing a writ of mandamus directing the district court

to withdraw and vacate its reference to the special master, and emphasizing “the exceedingly

high standard that must be met before the reference of a special master can be made”).

Rule 53 requires that the Order appointing a special master precisely specify the master’s

duties. Fed. R. Civ. P. 53(b)(2). The commentary to Rule 53 underscores that “Rule 53(b)(2)

requires precise designation of the master’s duties and authority. Clear identification of any

investigating or enforcement duties is particularly important. Clear delineation of topics for any

reports or recommendations is also an important part of this process. And it is important to

protect against delay by establishing a time schedule for performing the assigned duties.”

The commentary emphasizes that the Court “must protect against unreasonable expense or

delay.” Fed. R. Civ. P. 53(a)(3).

In appointing the Special Master in 2014 and expanding her responsibilities in 2017, the

Court considered the Plaintiffs’ broad request for relief, identified the specific steps that would


14

“allow the Court to ensure the requirements of the 1972 decree (and the constitution) are met,”

and charged the Special Master with the responsibilities delineated by the Rule 53 orders. Now

that she has completed her responsibilities, the Special Master – an arm of the federal court –

should no longer play a role in the sovereign State’s employment policies and practices.

a. There is no factual or legal basis to expand the Special Master’s authority.

Plaintiffs’ motion to expand the Special Master’s authority lacks any merit. Although

Plaintiffs style their motion as alternatively seeking “clarification” regarding the scope of the

Special Master’s responsibilities, that characterization is facially inaccurate. Plaintiffs point to

no language in the existing Rule 53 orders that could be read to give them the relief they seek:

giving the Special Master sweeping “responsibilities to include the power to investigate and

report on the compliance of all agencies under the jurisdiction of the Governor with the Court’s

1972 Decree and supplemental relief orders and Rutan.” Dkt. 6789 at 22.

At the outset, Plaintiffs’ request is extraordinary in that they do not even purport to limit

the Special Master’s role to monitoring compliance with the 1972 decree. While special masters

may be appointed to monitor implementation of decrees, Williams, 851 F.2d at 884, they may not

do more than “superintending compliance with the … decree.” Cobell, 334 F.3d at 1143. Yet

Plaintiffs invite the Court to expand the Special Master’s authority to investigate the State’s

compliance with unspecified “supplemental relief orders” to which the State is not a party, and to

investigate the State’s compliance with Rutan – an entirely distinct case that was decided 28

years after the 1972 decree was entered, and that vests in public employees – not voters and

candidates – recourse for political discrimination. See Rutan v. Republican Party of Illinois, 868

F.2d 943, 957 (7th Cir. 1989), aff’d in part, rev'd in part, 497 U.S. 62 (1990). Plaintiffs’

requested relief speaks volumes about the current status of this case: they no longer patrol


15

whether voters and candidates are injured by the prohibitions of the 1972 decree; instead, they

hope to dictate the State’s employment policies.

Plaintiffs barely attempt to support their motion with facts or law, and the five bases on

which they premise their motion are not founded.

First, Plaintiffs argue that “[a] review of State employment practices by the Special

Master is needed to determine if termination of the 1972 decree is warranted.” Dkt. 6789 at 2.

Effectively, Plaintiffs contend that if the State wants to exit the decree through a Rule 60(b)

motion, it must submit to either expansive discovery conducted by the Plaintiffs or expansive

discovery conducted by the Special Master.2 Plaintiffs identify no case law suggesting or

holding as much. Rather, they conclude from a single remark in Horne v. Flores – that “the

District Court failed to make up-to-date factual findings,” 557 U.S. 433, 469 (2009) – that they

are entitled to either expansive discovery or a Special Master. Horne plainly does not say that.

In fact, far from imposing a heightened evidentiary burden or a discovery burden on a

party seeking to exit a decree, Horne critiques the lower courts’ failure to consider that updated

facts may require vacating a decree. The context shows just how off-the-mark Plaintiffs’

interpretation is:

Because the lower courts engaged in an inadequate Rule 60(b)(5) analysis, and because

the District Court failed to make up-to-date factual findings, the analysis of the lower

courts was incomplete and inadequate with respect to all of the changed circumstances

just noted. These changes are critical to a proper Rule 60(b)(5) analysis, however, as they

may establish that Nogales is no longer in violation of the EEOA and, to the contrary, is

taking “appropriate action” to remove language barriers in its schools. If this is the case,

continued enforcement of the District Court's original order is inequitable within the

meaning of Rule 60(b)(5), and relief is warranted.

2 On January 27, 2020, the Court set a briefing schedule for the State’s Rule 60(b) motion. Dkt. 6674. At

a subsequent hearing, Plaintiffs were silent when Judge Schenkier noted in discussing the 60(b) motion

that “nobody has told me that they really want … [a] full-blown evidentiary hearing and the delay that

would be attendant to that. I haven’t heard anybody vote for that.” 2/13/20 Hr’g Tr. 13:12-15.


16

Id. at 469-70. As described in the State’s Rule 60(b) motion, the analysis that Horne requires

compels that the decree must be ended, not continued. See, e.g., id. at 447 (“[F]ederal-court

decrees exceed appropriate limits if they are aimed at eliminating a condition that does not

violate [federal law] or does not flow from such a violation.”).

In its Rule 60(b) motion, the State relies exclusively on the Special Master’s up-to-date

reports and additional up-to-date facts (such as the oversight that OEIG and HEM now provide)

that are not reasonably in dispute. The mere fact of seeking termination of the decree,

particularly when the State is relying solely on the existing record as the basis of its motion, does

not entitle Plaintiffs to expand the Special Master’s authority.

Second, Plaintiffs contend that “[p]rior practice shows the efficacy of the requested relief

and the ineffectiveness of self-policing.” Dkt. 6789 at 6. Plaintiffs cite no case law suggesting

or holding that this is a basis to extend a special master’s jurisdiction. They also do not argue

that the State currently is self-policing ineffectively, let alone provide any facts to substantiate

such an allegation. To the contrary, their motion focuses on problems with employment

practices that have been uncovered by the work of the OEIG.

Remarkably, Plaintiffs barely reference the State’s statutory oversight structure in OEIG,

and the compliance function in HEM. OEIG now has approximately 72 full-time equivalent

employees and an annual operating budget in fiscal year 2020 of approximately $7.75 million.

HEM now has ten professionals overseeing the State’s employment policies. Plaintiffs’ motion

does not question the integrity, competency, or rigor of the oversight regarding hiring and

employment that OEIG and HEM perform. The Court previously asked the Special Master to

facilitate “the fastest and most efficient transfer of knowledge and experience from the Special

Master to HEM unit employees so that they may carry more of the burden.” Dkt. 4798 at 6.


17

And the Special Master has done so – noting in a recent report that “HEM reviews the

appointment paperwork for each appointment. To avoid duplication of efforts, the Special

Master’s office has not played an active role in reviewing each appointment in recent months.”

Dkt. 6710 at 28. The State’s robust “self-policing” mechanism provides every reason to end, not

extend, the Special Master’s responsibilities at this juncture.

Third, Plaintiffs argue that “[t]he State has a history of serious patronage violations.”

Dkt. 6789 at 8. At the outset, most of Plaintiffs’ historical examples, which date from 2004 to

2014, have nothing to do with the prohibitions of the 1972 decree – which presumably is why the

Plaintiffs did not seek relief contemporaneously with those supposed violations. Plaintiffs did

seek relief in 2014, and the Court granted relief in the form of appointing the Special Master for

IDOT to perform “very targeted functions.” 10/22/14 Hr’g Tr. at 17:7-11. After six years of

monitoring, Plaintiffs fail to explain why events that pre-dated the Special Master’s appointment

warrant expanding the scope of her responsibilities now, when the Court contemporaneously

evaluated the same facts and Plaintiffs’ request for the expansive relief, and determined that the

facts warranted only certain relief, and only for IDOT. E.g., 10/22/14 Hr’g Tr. 9:12-22; Dkt.

4020. In many ways, the Plaintiffs’ current argument reads as a motion to reconsider Judge

Schenkier’s 2014 decision. But such a request would be both untimely and unfounded. See

Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008) (“[M]otions for reconsideration

serve a limited function; to correct manifest errors of law or fact or to present newly discovered

evidence.”).

Fourth, Plaintiffs contend that “[r]ecent evidence indicates the objectives of the 1972

decree have not yet been achieved and the State has not yet implemented a durable remedy.”

Dkt. 6789 at 15. Here, Plaintiffs heap inference upon inference to intimate that the State’s


18

employment system potentially could be subject to manipulation, and thus potentially could be

subject to the type of coercion that the 1972 decree prohibits. But the weakness of Plaintiffs’

evidence and its irrelevance to patronage or political discrimination – let alone the actual,

specific prohibitions of the 1972 decree – only serves to underscore that Plaintiffs have

absolutely no basis for their request to expand the Special Master’s jurisdiction.

The Special Master has investigated a wide range of employment policies and actions for

the past six years at IDOT, and for the past three years for the Governor’s other agencies. The

State never has refused to provide the Special Master with information that she has requested.

She has solicited and investigated both anonymous and named complaints regarding the State’s

employment practices through the website www.ShakmanIllinois.com. See Dkt. 4128 at 3. In

that context, and given the breadth of the Special Master’s work, it is telling that the Plaintiffs

point only to potential violations or “areas of concern.” Over the past six years of monitoring

and investigations, they do not identify a single actual violation of the 1972 decree or a single

actual patronage violation.

Plaintiffs cite no case law holding that the potential risk of future violation without any

evidence of a violation for the preceding six years merits expanding a special master’s charge.

In fact, the opposite is true: the mere potential for a violation is not a basis for relief. See Plotkin

v. Ryan, 239 F.3d 882, 885 (7th Cir. 2001) (“Plaintiffs make no allegations that the bribes-for-

commercial-drivers’-licenses scheme is continuing under Secretary White’s administration,

contending only that ‘[t]here exists in the Secretary of State’s office a deep-seated culture and

policy or custom of intertwining and requiring coerced partisan political work together with the

official duties of the office,’ and as a result, ‘[t]here is a substantial likelihood that without

remedial steps being taken that such or similar unlawful conduct will continue.’ These


19

allegations are purely speculative.”); Salazar by Salazar v. D.C., 896 F.3d 489, 500-01 (D.C. Cir.

2018) (“The burden was on the Plaintiffs to prove the existence of a continuing and widespread

problem. By shoehorning the Plaintiffs’ new injunction into a Rule 60(b) modification, the

district court evaded that proof problem, finding it sufficient to enter a sweeping injunction just

because it had ‘no assurance’ that already-solved problems ‘w[ould] not arise again.’ That gets

Rule 60(b) exactly backwards.”) (citation omitted).

Indeed, there remains no factual or legal basis to sustain the extraordinary systemwide

and systemic intervention that, under the Plaintiffs’ view of it, the decree imposes. “Systemwide

relief is never appropriate in the absence of a systemwide violation, and even then should be no

broader and last no longer than necessary to remedy the discrete constitutional violation.” Lewis

v. Casey, 518 U.S. 343, 392–93 (1996); Salazar, 896 F.3d at 500 (“[A] local government cannot

be subjected to ongoing classwide structural relief simply because a problem has not been 100%

eradicated.”). “Expansive, classwide structural relief that judicially superintends local

government operations cannot issue based on a factual predicate consisting only of one-off errors

that have, at best, a marginal connection to the only remaining executory portions of the Consent

Decree.” Salazar, 896 F.3d at 500. With approximately 50,000 State employees in agencies

under the jurisdiction of the Governor, even if the record in this case revealed several instances

of political discrimination – which it does not – those instances would represent a tiny fraction of

the State workforce and would not provide a legal basis for systemwide and systemic relief. In

addition, without evidence linking the Governor (the only State defendant in this case) to any

purported violation, the 1972 decree would not be implicated.

Moreover, the Plaintiffs’ “areas of concern with respect to the State’s current and

historical employment system,” Dkt. 6789 at 15-16, have nothing at all to do with patronage or


20

political discrimination, and nothing at all to do with the 1972 decree. Most of these “areas of

concern” (such as the concept of “reachability” of candidates to hire; the use of “Personal

Services Contracts”; and circumstances that “allow[] for single candidate interviews and

extremely limited candidate pools that often favor existing State employees and exclude external

candidates”) relate to the State’s hiring policies and practices – which the decree does not and

cannot cover. 1972 consent decree ¶ E; Shakman II, 829 F.2d at 1399. Others, such as use of

“temporary and interim assignments that are unilaterally decided by managers,” belie, by

Plaintiffs’ own description, the notion that the Governor (the sole State defendant in this case) is

involved in the employment action, let alone perpetuating a systemic patronage scheme. Overall,

the “areas of concern” do not involve or establish patronage or political discrimination; rather,

they are perceived imperfections in the State’s hiring and employment practices.

Failproof employment policies (or, stated differently, employment policies that cannot be

manipulated for any reason) are the type of “unattainable” goal that cannot sustain continuing a

decree or a special master’s involvement. Shakman v. City of Chicago, 426 F.3d 925, 933 (7th

Cir. 2005) (“Shakman IV”); People Who Care v. Rockford Bd. of Educ., Sch. Dist. 205, 246 F.3d

1073, 1075 (7th Cir. 2001). (“Nothing in the logic of … the plaintiffs’ brief … suggests any

natural terminus to the decree.”). And HEM is fully capable of identifying and recommending

further enhancements to State employment processes and ensuring that the State continues to

improve. See Dkt. 6936 at 2 (“HEM reviews and makes recommendations to agencies regarding

hiring actions and then follows up through continued monitoring of agency hiring activities.

HEM staff work directly with Agency Personnel Officers and staff, the Department of Central

Management Services (CMS), and the Office of the Governor to ensure necessary changes are

implemented based on its reviews.”).


21

Plaintiffs use as their principal “recent evidence” of wrongdoing an OEIG report that was

made public in 2018 – and that investigated conduct between 2007 and 2015. They argue that

the OEIG report found “Rutan violations in the use of Personal Services Contracts and seasonal

hiring at the Department of Agriculture.” Dkt. 6789 at 17. At the outset, use of Personal

Services Contracts and seasonal hiring are hiring, which, again, the decree does not and cannot

cover. But Plaintiffs also mislead when they suggest that the 2018 OEIG report’s discussion of

“Rutan violations” means the OEIG found instances of patronage hiring or political

discrimination. That is not at all what the report found. In fact, the report specifically notes that

“the OEIG did not uncover evidence that the hires were made based on political connections,”

but rather that the failure to adhere to what is sometimes referred to as the State’s Rutan hiring

process meant that there existed the potential that improper hiring could occur. Rpt. at 20. The

report’s actual findings are:

• The Illinois Department of Agriculture hired new employees under Personal

Services Contracts between 2007 and 2015 without completing Rutan interviews

or maintaining required hiring documentation, in violation of Administrative

Order No. 2 (2009), and the PSC Hiring Procedures.

• The Illinois Department of Agriculture rehired employees under Personal

Services Contracts between 2013 and 2015 without documenting that the rehires

provided some tangible benefit to the agency, and without verifying that the

candidates performed satisfactorily in their previous employment, in violation of

the PSC Hiring Procedures and the Salazar Memorandum.

• Illinois Department of Agriculture employee Cheryl Bluhm hired State Fair

Workers without completing Rutan interviews, in violation of Administrative

Order No. 2 (2009).

See Report 14-01678 at 23-24, available at

https://www2.illinois.gov/oeig/investigations/Documents/14-01678%20Bluhm.pdf.

Plaintiffs additionally rely on unvetted employment complaints – all of which already

have been submitted to the OEIG for investigation, and which they acknowledge “may or may


https://www2.illinois.gov/oeig/investigations/Documents/14-01678%20Bluhm.pdf

22

not turn out to be meritorious.” Dkt. 6789 at 18. There is no reason these complaints should be

investigated by the Special Master, duplicating the exact work that the OEIG performs. At the

end of the day, Plaintiffs’ inability to identify an actual problem that in fact relates to the 1972

decree demonstrates that, far from extending the Special Master’s scope, there remains no basis

to continue her work.

Fifth, Plaintiffs argue that “the Special Master is already involved in statewide

employment practices.” Dkt. 6789 at 19. As a result, they assert that “[g]ranting the requested

relief should not impose significant new burdens on the State because the Special Master has a

history of collaborating with the State, CMS, and the OEIG’s HEM on the CEP to replace and

reform the State’s employment practices.” Id.

This argument lays bare that Plaintiffs have discarded the notion that “there must be a

showing that some exceptional condition requires such an appointment.” Williams, 851 F.2d at

884. Rather, they believe that special masters should be appointed and their duties expanded

whenever, in their view, the relief “should not impose significant new burdens.” It is a

significant burden to have a Special Master perform work that does not relate to the 1972 decree,

and that does not seek to rectify a violation of federal law. It is a significant burden to have a

Special Master duplicate the same work that the Illinois legislature has charged the OEIG with

doing – and that HEM is doing.

The Plaintiffs also argue that having a Special Master is the “efficient” solution. In their

view, expanding the Special Master’s authority is the way to “provide Plaintiffs, the Court and

the public with the information needed to determine with confidence when th[e] day has come”

to terminate the 1972 decree. Dkt. 6789 at 21-22. But this argument is undermined by the fact


23

Plaintiffs made the exact same argument six years ago – almost verbatim.3 Now, after six years

of extensive work by the Special Master – completing the specific duties set forth by the Court –

the “efficient” route apparently has brought the State no closer to the finish line. To the contrary,

Plaintiffs have discarded the limitation that they and the Special Master should monitor

compliance with the prohibitory terms of the 1972 decree – and replaced it with the notion that

they and the Special Master should monitor “Shakman-Rutan problems” and “replace and reform

the State’s employment practices.” Dkt. 6789 at 19.

In appointing a special master, “the court must consider the fairness of imposing the

likely expenses on the parties and must protect against unreasonable expense or delay.” Fed. R.

Civ. P. 53(a)(3). Expanding the special master’s scope based on no evidence and with no legal

basis, as Plaintiffs invite the Court to do, flouts that rule.

Indeed, it would be improper to expand the Special Master’s duties. The Special Master

may not “consider matters that go beyond superintending compliance” with the 1972 decree.

Cobell, 334 F.3d at 1143 (citing Ruiz v. Estelle, 679 F.2d 1115, 1161–62 (5th Cir. 1982)).

Where “the district court’s appointment … entail[s] a license to intrude into the internal affairs of

[a governmental body],” the appointment “simply is not permissible under our adversarial

system of justice and our constitutional system of separated powers.” Id. The special master’s

3 Compare Dkt. 3949 at 15 (filed 10/6/14) (“Experience in this case has shown that monitors provide the

information, oversight and accountability that have led to real changes and have provided a basis for a

finding of substantial compliance to end federal court involvement in government employment. Plaintiffs

envision a day when the Governor’s office, like several other defendants, join with Plaintiffs in a motion

to terminate application of the Decree. Appointment of a monitor would provide Plaintiffs, the Court and

the public with the information needed to determine with confidence when that day has come.”) with Dkt.

6789 at 21-22 (filed 3/10/20) (“Experience in this case has shown that monitors provide the information,

oversight and accountability that have led to real changes and have provided a basis for a finding of

substantial compliance to end federal court oversight in government employment. … Plaintiffs expect that

the Governor’s Office, like several other defendants, can and will join with Plaintiffs in a motion to

terminate application of the Decree at some point. Expanding the Special Master’s authority provides

Plaintiffs, the Court, and the public with the information needed to determine with confidence when that

day comes.”).


24

role should be expressly limited to observing and reporting. See Prometheus Radio Project v.

Fed. Commc’ns Comm’n, 939 F.3d 567, 589 (3d Cir. 2019) (“[W]e would decline in any event to

appoint a special master with any powers beyond the simply observational, as doing so would

raise grave constitutional concerns”).

Cobell is instructive. There, “[t]he Monitor’s portfolio was truly extraordinary; instead of

resolving disputes brought to him by the parties, he became something like a party himself. The

Monitor was charged with an investigative, quasi-inquisitorial, quasi-prosecutorial role that is

unknown to our adversarial legal system.” 334 F.3d at 1142. Here, the Special Master’s charge,

as Plaintiffs interpret it, would yield the impermissible portfolio in Cobell. At this point, after

six years of work with IDOT, having the Special Master continue to recommend measures and

then “assess the implementation of those efforts to ensure that they are effective” risks

converting the discrete and specific terms of the prohibitory consent decree into a mandatory

injunction in which the Special Master’s “recommendations” become new injunctive

requirements – as if they were affirmative obligations the State assumed in the 1972 decree. See

Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 892 (7th Cir. 2011) (“A mandatory

injunction imposes significant burdens on the defendant and requires careful consideration of the

intrusiveness of the ordered act, as well as the difficulties that may be encountered in supervising

the enjoined party’s compliance with the court’s order.”); Salazar, 896 F.3d at 500 (“Writing

new injunctive obligations … into Consent Decree provisions that never addressed those matters

… would turn the power to modify a consent decree into an injunctive blank check. ‘Who would

sign a consent decree if district courts had free-ranging interpretive or enforcement authority

untethered from the decree’s negotiated terms?’”) (citation omitted). This is especially

problematic for recommendations that do not relate to enforcing the narrow prohibitions of the


25

decree or remedying past violations.

Plaintiffs’ requested relief demonstrates the point. They argue that the Special Master

should monitor “Shakman-Rutan problems” and “replace and reform the State’s employment

practices.” Dkt. 6789 at 21. They demand implementation of a “Comprehensive Employment

Plan” to which they and the Special Master agree in full, and, once implementated, that the

Special Master subsequently monitor all aspects of that plan, even those that fall far outside the

1972 decree. Dkt. 6789 at 16-17. Plaintiffs assert that the State should be subject to the type of

“supplemental relief orders” to which the city and the county agreed – despite the fact that the

State has never agreed to any such expansion of its obligations under the decree – and that the

Special Master should monitor compliance with those supplemental relief orders. Indeed,

Plaintiffs now request this relief despite having asked for the same relief in 2014, when the Court

determined that a Special Master was warranted but a supplemental relief order was not.

Plaintiffs attempt to obtain relief through the Special Master’s scope of responsibilities

that should be sought through a motion to modify the 1972 decree or for additional injunctive

relief, if not a new lawsuit. See Salazar, 896 F.3d at 498 (“When a plaintiff seeks to enhance a

consent decree’s terms, courts must be careful to ensure that the new injunctive terms give effect

to and enforce the operative terms of the original consent decree. Courts may not, under the guise

of modification, impose entirely new injunctive relief. That practice would end run the

demanding standards for obtaining injunctive relief in the first instance, would deny the enjoined

party the contractual bargain it struck in agreeing to the consent decree at the time of its entry,

and would destroy the predictability and stability that final judgments are meant to provide.”).

But because Plaintiffs cannot meet that standard by any stretch, they hope to obtain effectively

the same relief by expanding the Special Master’s scope far beyond what the decree can support.


26

Like the consent decree itself, the Special Master’s responsibilities “exceed appropriate

limits if they are aimed at eliminating a condition that does not violate [federal law] or does not

flow from such a violation.” Horne, 557 U.S. at 447; see also People Who Care v. Rockford Bd.

of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1338 (7th Cir. 1992) (citation omitted) (“A remedy

is justifiable only insofar as it advances the ultimate objective of alleviating the initial

constitutional violation.”). Now that there is no continuing violation of federal law, and the past

constitutional violations have been remedied, both the 1972 decree and the Special Master’s

appointment should end.

b. The Orders appointing the Special Master should be vacated.

The Special Master has completed the scope of work set forth in the Court’s Orders.

With respect to IDOT, the Court in 2014 ordered a Special Master to investigate IDOT’s use of

the “staff assistant” position. As the Court explained, “plaintiffs ask that I appoint an officer to

conduct an investigation in the wake of evidence … in the OEIG report … at IDOT regarding the

use of staff assistant positions that were labeled as exempt, meaning that partisan political

considerations could be used in determining who would receive these positions. But that, in fact,

the people who went into the positions performed job duties that largely or exclusively fell into

the category of non-exempt positions, meaning that the people who filled jobs of that character

had to be selected without regard to partisan political considerations.” 10/22/14 Hr’g Tr. 7:23-

8:8; see also id. 8:15-21 (“[A]ccording to the Inspector General report, some of the people who

were hired into the staff assistant positions but who actually performed non-exempt work, had

partisan political connections. … [The Plaintiffs] say that this conduct violates the 1972 consent

decree.”).

The Special Master accordingly was tasked with “very targeted functions,” 10/22/14 Hr’g


27

Tr. 9:21-22, relating to investigating misuse of the “staff assistant” position that led to her

assignment and recommending measures to prevent recurrence and to remedy the past violations.

The Special Master completed her investigation in an 89-page report filed on April 24, 2017.

Dkt. 4988; see also Dkt. 5069 at 1 (“[T]he Special Master and her staff completed the

investigation into the Governor’s Office’s involvement in the misuse of the Staff Assistant

position at IDOT ….”). In the three years since then, the Special Master has made myriad

recommendations and assessed implementation of those recommendations.

Two principal developments merit specific mention. First, on December 4, 2017, the

Court issued an Order Creating a Review Process for Applications of Former Staff Assistant for

Positions at IDOT. Dkt. 5644. This created “a procedure for determining, in specific cases,

what consideration [IDOT] is to give a Staff Assistant’s experience when applying for a non-

exempt, Rutan-covered position.” Id. at 1. As the Special Master noted, this process

“minimize[s] the ongoing impact of previous violations of the 1972 Decree with respect to the

Staff Assistant position.” Dkt. 5699 at 2. Second, and as explained further below, the State now

has a comprehensive Exempt List. The Special Master has explained that “[h]aving a finite list

ensures that improper political hiring is less likely to occur, because no department can simply

create and fill an unlimited number of new positions, as was the case with the Staff Assistant

positions at IDOT.” Dkt. 6306 at 2. At this point, the Special Master has fully investigated the

misuse of the staff assistant designation leading to her appointment, and the State, based on her

recommendations, has remedied that problem. Based on that, the State submits that after six

years, the responsibilities detailed in the Rule 53 order are complete. See People Who Care, 961

F.2d at 1338 (“A remedy is justifiable only insofar as it advances the ultimate objective of

alleviating the initial constitutional violation.”); commentary to Rule 53 (“Rule 53(b)(2) requires


28

precise designation of the master’s duties and authority. Clear identification of any investigating

or enforcement duties is particularly important. … And it is important to protect against delay by

establishing a time schedule for performing the assigned duties.”).

With respect to both IDOT and the State, the development of a comprehensive exempt

list unequivocally satisfies the Special Master’s delineated duties. For IDOT, the Special Master

was tasked to “address whether positions in IDOT labeled as exempt were properly exempt

under applicable legal principles.” For the Governor’s other agencies, each of the Special

Master’s delineated tasks is satisfied by the creation of an exempt list and a mechanism for

revising that list: (i) Reviewing all positions under the jurisdiction of the Governor designated as

“exempt”; (ii) Developing a single and comprehensive list of all “exempt” positions – an

“Exempt List”; (iii) Developing procedures for revision of the Exempt List; and (iv)

Investigating whether certain positions designated as “exempt” qualify under applicable law.

On January 7, 2019, the Court entered an Agreed Order approving the Governor’s

Employment Plan for Exempt Positions. Dkt. 6158. On January 22, 2019, the Court entered an

Agreed Order approving the statewide Exempt List (which included IDOT’s exempt positions).

See Dkt. 6180. The State’s Exempt List is updated monthly and available online at

https://www2.illinois.gov/cms/Documents/ExemptList_w_Incumbents.pdf. The Special Master

also has observed the addition and deletion process at work for eighteen months: “[A]s of the

filing of the Fifth Report, 33 positions had been added to the Exempt List since January 2019

pursuant to the request to change process outlined in the Exempt Employment Plan. As of the

filing of this report, the number has increased to 40 positions that have been added to the Exempt

List. Five titles have been removed from the Exempt List under the Exempt Employment Plan

process ….” Id.


https://www2.illinois.gov/cms/Documents/ExemptList_w_Incumbents.pdf

29

Accordingly, after six years of oversight and accomplishment of the responsibilities set

forth in the Court’s Orders, the Orders appointing a Special Master and expanding her

jurisdiction should be vacated. See, e.g., Com. of Virginia v. Maryland, 371 U.S. 943 (1963)

(“The special Master, having completed all of his duties, is hereby discharged.”); Louisiana v.

Mississippi, 384 U.S. 24, 27 (1966) (“As it appears that the Special Master has completed his

work, he is hereby discharged with the thanks of the Court.”); Roberts v. Cty. of Mahoning,

Ohio, 495 F. Supp. 2d 784, 786 (N.D. Ohio 2007) (terminating appointment where “the Special

Master in this case has accomplished the Court’s original objective”); Evolution, Inc. v. Suntrust

Bank, No. 01-2409-CM-DJW, 2004 WL 2278559, at *3 (D. Kan. Sept. 29, 2004) (“The Court

therefore determines that the Special Master has completed his duties as set forth by the Court in

its February 11, 2004 Order Appointing Special Master. … Accordingly, the Special Master

appointed by the Court is discharged with the thanks of the Court.”).

This conclusion is doubly warranted by the fact that the decree itself should be ended, as

the State’s Rule 60(b) motion argues. Dkt. 6946. The State now has a robust oversight structure

in OEIG and HEM that renders the Special Master’s work duplicative and unnecessary. When

the Court in 2017 expanded the Special Master’s jurisdiction to exempt employment beyond

IDOT, one of its bases for doing so was that HEM was still new. While “applaud[ing] the

creation of that unit,” the Court explained that “we are not convinced that the newly-created

HEM unit currently possesses the experience or expertise to take on the investigation and review

of exempt positions – and the process for determining which positions are exempt – for the entire

state of Illinois without the active involvement of the Special Master.” Dkt. 4798 at 5. The

Court concluded that “[a]llowing the HEM unit to handle that task ‘flying solo’ would create the

unacceptable risk that the unit would miss critical issues as it climbs the analytical learning


30

curve, or make improvident decisions that could require costly unraveling later.” Id. Instead, the

Court explained that “[o]ne goal of our order is to encourage the fastest and most efficient

transfer of knowledge and experience from the Special Master to HEM unit employees so that

they may carry more of the burden.” Id. at 6.

Now, after years of work, there is no doubt about the OEIG’s and HEM’s experience or

expertise, and there is no question concerning the integrity, competency, or rigor of their

monitoring of hiring and employment. The HEM unit that began as one person in 2015 now has

ten full-time employees. In her recently-filed Sixth Report regarding Statewide employment, the

Special Master noted that HEM now reviews appointment paperwork, and “[t]o avoid

duplication of efforts, the Special Master’s office has not played an active role in reviewing each

appointment in recent months.” Dkt. 6710 at 28. There remains no basis for duplication of

oversight that can be – and is being – done by an independent hiring and employment monitor.

Plaintiffs’ motion should be denied and the State’s cross-motion to vacate the Rule 53

orders should be granted.

July 14, 2020

Respectfully Submitted,

KWAME RAOUL JB Pritzker, in his official capacity

Illinois Attorney General as the Governor of the State of Illinois

By: /s/ Brent D. Stratton

Brent D. Stratton

Office of the Illinois Attorney General

100 W. Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 814-4499


31

CERTIFICATE OF SERVICE

The undersigned, an attorney of record, hereby certifies that, on July 14, 2020, he caused

to be filed through the Court’s CM/ECF system a copy of Governor’s Cross-Motion to Vacate

the Orders Appointing the Special Master and Response to Plaintiffs’ Motion Regarding the

Scope of the Special Master’s Responsibilities. Parties of record may obtain a copy of this filing

through the Court’s CM/ECF system.

/s/ Brent D. Stratton

Brent D. Stratton
