author: CELEBREZZE, Circuit Judge. WEICK, Circuit Judge EDWARDS, Circuit Judge

text:
    J. B. TAYLOR et al., Plaintiffs-Appellees, v. E. P. PERINI, Superintendent, Defendant-Appellant.
    No. 73-2071.
    United States Court of Appeals, Sixth Circuit.
    Argued April 15, 1974.
    Decided Oct. 3, 1974.
    Weick, Circuit Judge, filed separate concurring opinion; Edwards, Circuit Judge, dissented and filed opinion.

      James A. Laurenson, Chief Counsel, Columbus, Ohio, for appellant; William J. Brown, Atty. Gen., Richard B. Igo, Asst. Atty. Gen., Columbus, Ohio, on brief.
    Niki Z. Schwartz, Gold, Rotatori, Mes-serman & Hanna, Cleveland, Ohio, for appellee.
    Thomas W. Gray, Gerald M. Jackson, Avery S. Friedman, Cleveland, Ohio, on brief for amicus curiae Bar Assn, of Greater Cleveland.
    Armand Derfner, Washington, D. C., for amicus curiae Lawyers’ Committee for Civil Rights Under Law; Wilmer, Cutler & Pickering, Washington, D. C., of counsel.
   CELEBREZZE, Circuit Judge.

This is an appeal by the Superintendent of the Marion Correctional Institution at Marion, Ohio and by the State of Ohio from an Order of the District Court denying Appellant’s motion to vacate a portion of a Journal Entry and Order entered on September 12, 1972 providing for the payment of attorneys' fees. The award was part of the resolution of a class action by the Institution’s inmates for injunctive relief from conditions and practices violative of rights secured to them by the Constitution and 42 U.S.C. § 1983.

The action was commenced on September 17, 1969, by J. B. Taylor, an inmate of the Marion Correctional Institution on behalf of himself and his fellow inmates against E. P. Per ini, Superintendent of the Institution. Counsel was appointed by the court to represent Appel-lees. Appellant Perini was represented by the Ohio Attorney General. Appel-lees’ counsel filed a First Amended Complaint seeking only injunctive relief from allegedly unconstitutional conduct and conditions, including obstruction of access to courts and lawyers, racial discrimination in job assignments and racial segregation of living quarters, and deprivations of substantive and procedural due process in the administration of discipline, including the infliction of cruel and unusual punishment.

On January 7, 1971, Appellee Taylor filed a Supplemental Complaint seeking compensatory and punitive damages, alleging that Perini had personally subjected him to deprivations of civil rights in retribution for filing the lawsuit.

On September 12, 1972, the District Court entered a Journal Entry and Order which had been negotiated and agreed to by counsel. That order granted nearly all the relief requested in the First Amended Complaint, including attorneys’ fees and expenses, and provided that the Court would retain continuing jurisdiction to oversee the implementation of its order.

Subsequently, following a trial, the District Court entered Findings of Fact and Conclusions of Law on the issues raised in Appellee Taylor’s Supplemental Complaint. The Court held that Appellant Perini was not liable to Appellee because “the defendant was, at all times, acting in good faith to carry out his duties as he understood them.”

Subsequent negotiations resulted in an agreement in December 1972 between Appellees’ counsel and the Attorney General’s office as to the amount to be paid pursuant to the provision for attorneys’ fees. However, on February 26, 1973 the Attorney General’s office advised Appellees’ counsel that no attorneys’ fees would willingly be paid in compliance with the order of September 12, 1972. Appellees’ counsel then filed a motion for determination of attorneys’ fees and expenses pursuant to the order of September 12, 1972, and Appellants moved to vacate that portion of the order providing for attorneys’ fees pursuant to Rule 60(b) of the Federal Rules of Civil Procedure on the ground that the Eleventh Amendment prohibited the award. On May 23, 1973, the District Court denied the motion to vacate, set the amount of the award at $21,055.07, and ordered it paid.

Subsequently the Attorney General filed a motion seeking:

An order of Clarification, specifying that the award of attorneys fees in this matter was a judgment to be satisfied from revenues of the State of Ohio, and not a judgment to be exacted from the personal earnings, savings, or other assets of E. P. Perini.

On July 25, 1973 the District Court clarified its previous order by specifically providing:

“. . . the award of attorney fees in this action runs against both the defendant Perini and the State of Ohio and can be collected from either at plaintiffs’ option.”

The District Court also granted Appellants’ motion for a stay of execution pending appeal to this Court.

The questions presented to us are whether a United States District Court may hold either a prison warden, in his personal capacity, or the State of Ohio, or both, liable for attorneys’ fees to an attorney whom the Court appointed to represent a prisoner in a 42 U.S.C. § 1983 lawsuit against the warden. The propriety of an award of attorneys’ fees by a federal court against a state or its officials acting in their official capacity has been settled in this Circuit by our recent holding in Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), that such an award is barred by the Eleventh Amendment.

Appellee contends, however, that the state waived its immunity under that amendment when the Attorney General consented to the original court order awarding attorneys’ fees. We do not agree. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Supreme Court, in interpreting a provision of the Indiana Constitution, stated:

We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. Nor do we think that any of the general or special powers conferred by statute on the Indiana attorney general to appear and defend ac-. tions brought against the state or its officials can be deemed to confer on that officer power to consent to suit against the state in courts when the state has not consented to be sued. 323 U.S. at 468, 65 S.Ct. at 352.

And in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which followed the holding in Ford Motor, the Supreme Court said:

In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909). 415 U.S. at 673, 94 S.Ct. at 1361

We are unable to conclude that the State of Ohio has, through its Attorney General, waived its constitutional immunity by consenting to the award of attorneys’ fees in this case. The Ohio Supreme Court has held that an award of attorneys’ fees to be paid out of the state treasury must be authorized by a two-thirds vote of the General Assembly. Grandle v. Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959). Thus, we find that the state has not conferred on its Attorney General the authority to consent in individual cases to a payment of attorneys’ fees out of the state treasury. In view of this determination, the award of fees against the State of Ohio cannot stand.

On a different footing is the award of attorneys’ fees against Appellant Perini in his individual capacity. An award of attorneys’ fees individually against Perini is not, of course, barred by the Eleventh Amendment. Even an award of damages is not so barred. As the Supreme Court recently reiterated, “damages against individual defendants are a permissible remedy in some circumstances notwithstanding . the fact that they hold public office.” Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (April 17, 1974). Two considerations are necessary, however, to determine whether the award made in this case can stand. First, it is contended that Perini is immune from liability under a theory of common law executive immunity. The Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974), discussed the nature of this immunity in the context of a suit filed under 42 U.S.C. § 1983:

These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct. 416 U.S. at 247, 94 S.Ct. at 1692

Thus, in order to determine whether a defendant is entitled to official immunity from liability for damages, there must be some finding as to the scope of his discretion, the existence of reasonable grounds for the propriety of the official’s actions, and the exercise of good faith in the performance of his duties. As we have indicated previously, repeated acts of negligence may form the basis of liability for a prison warden under § 1983. Pucket v. Cox, 456 F.2d 233 (6th Cir. 1972).

However, the order in the District Court was entered

“without admission of any violation of the Constitutional rights, privileges or without a finding by the Court of whether the defendant has deprived any of the members of plaintiffs’ class of any such rights, privileges or im-immunities of any of the members of the plaintiff class by defendant, and munities.”

Thus, the purpose of the action was to remedy conditions existing in the Marion Correctional Institution, not to impose a liability against Perini individually for past deprivations of constitutional rights. The original complaint, in fact, sought only injunctive relief from unconstitutional conditions. Such actions are, of course, cognizable under § 1983. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The question becomes, then, not one of immunity but whether an award of attorneys’ fees is, under the circumstances of this case, equitable. See Hoitt v. Vitek, 497 F.2d 598 (1st Cir. 1974); Jordan v. Fusari, 496 F.2d 646 (2d Cir. 1974); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); cf. Skehan v. Board of Trustees, 501 F.2d 31 (3rd Cir. 1974).

We are, at this point, presented with the question of whether Appellant Peri-ni consented to the award of attorneys’ fees. The District .Court’s order provided :

[That] defendant shall pay to plaintiffs’ counsel reimbursement for out-of-pocket expenses and reasonable attorney’s fees based upon services rendered in the handling of this action. In the event the parties are unable to agree upon the amount of payment under this paragraph, such issue shall be submitted to the Court for hearing and decision.

We have no hesitation in finding that a consent to an award would be binding on Perini. Our question is whether we are presented with such a consent. While the District Court’s order clearly expresses an agreement to pay attorneys’ fees, it is not clear who agreed to pay them. The language used by the District Court in granting Appellant’s motion for clarification leads to an ambiguity in determining the meaning of the Court’s original order. The District Court stated, in part:

On September 12, 1972, a consent order was entered in this matter, part of which provided for payment of plaintiffs’ attorney fees. Subsequently, defendant moved to vacate that portion of the consent order. On May 23, 1973, this Court denied the motion to vacate and awarded attorney fees as part of its equitable powers. Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.) (Three-judge court) aff’d 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). See also Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).
Because of the way this issue was presented, some question has arisen as to whether the defendant Perini or the State of Ohio was to satisfy the award. There can be no doubt that the Court has the power to assess costs against the named defendant. Sims v. Amos, supra. This was done, and consequently, the defendant Perini is liable for the award. In addition, however, it is apparent that the State of Ohio was and is a real party in interest to this action. Although the State of Ohio could not have been named as a defendant, it seems clear that an assessment of costs can be made against the state in this situation. See discussion United States ex rel. Griffin v. McMann, 310 F.Supp. 72, 74 (E.D.N.Y.1970). Thus, the award of attorney fees in this action runs against both the defendant Perini and the State of Ohio and can be collected from either at plaintiffs’ option.

Thus, it is unclear whether the court assessed attorneys’ fees against Perini because he had consented to pay them or because the Court simply felt an award of attorneys’ fees against Perini was equitable. For this reason, we must remand to the District Court for a finding on this question. It is necessary that a Court state its reasons for granting or denying attorneys’ fees, in order that the Court’s action can be properly reviewed on appeal. See Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974). If it is determined that Appellant consented to the award of attorneys’ fees, then they would stand on that basis. If it is found that there was no consent, then the award must rest on equitable considerations.

While the traditional American rule has not permitted recovery of attorneys’ fees unless statutorily or contractually authorized, federal courts may, when the interests of justice require, exercise their equitable power to award attorneys’ fees in the absence of such authorization. Hall v. Cole, 412 U. S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Thus, in an appropriate case, attorneys’ fees may be awarded in a § 1983 case, even though that statute does not expressly authorize such an award. Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.) aff’d 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). The inquiry, then, is whether the present action is an appropriate case. See Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974).

It is established that an award of attorneys’ fees is appropriate when the unsuccessful party has acted in bad faith or when the litigation has conferred a substantial benefit on the members of an ascertainable class and the award serves to spread the cost of litigation among them. Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943 (1973). This latter exception is generally referred to as the “common fund” or “common benefit” exception. As an award against Appellant individually would not serve to spread the cost of litigation, it appears that the “common benefit” exception is not applicable here.

It is unclear from the order of the District Court whether the award was based on the bad faith of Appellant and was thus awarded to punish his obdurate behavior. Appellant contends that the District Court specifically found that he was at all times acting in good faith. If so, this would preclude an award of attorneys’ fees under the bad faith rationale. See Capers v. Cuyahoga County Board of Elections, 472 F.2d 1225 (6th Cir. 1973). It is true that the Court, in its order of October 10, 1972, made such a finding with regard to allegations made in the Supplemental Complaint involving Appellee’s transfer from the Marion Correctional Institution to the Ohio Penitentiary. That finding did not refer, however, to the allegations made in the First Amended Complaint which were resolved by the order of September 12, 1972. There had not been then, any finding with regard to Peri-ni’s good faith as to Appellees’ main contentions.

A third exception to the general rule has been recognized in cases where the plaintiff has acted as a “ ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Hoitt v. Vitek, 497 F.2d 598 (1st Cir. 1974); Wilderness Society v. Morton, 495 F.2d 1026 (D.C.Cir.1974) (en banc); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972). While we have not previously considered directly the “private attorney general” exception, we find ourselves in agreement with the reasoning which underlies these decisions. Awarding attorneys’ fees in cases where there is no potential substantial award of damages and where the cost of supporting a case for injunctive relief is high serves to prevent the unjust discouragement of parties in bringing suits to vindicate important rights. Wilderness Society v. Morton, 495 F.2d 1026 (D.C.Cir. 1974) (en banc).

In turning to the facts of this case, we find that Appellees, in bringing this action, vindicated constitutional rights strongly favored by congressional policy. Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.), aff’d 409 U.S. 942 (1972); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). They could not have maintained the action if they had been required to support the extensive discovery necessary for a suit of this nature. Thus, in this type of lawsuit, “[t]o secure counsel willing to undertake the job of trial, [including the substantial duty of representing an entire class] . . . necessarily means that someone — -plaintiff or lawyer — must make a great sacrifice unless equity intervenes.” Bradley v. Richmond School Board, 416 U.S. 696, n. 25, 94 S.Ct. 2006, 2019, 40 L.Ed.2d 476 (May 15, 1974).

The judgment of the District Court is reversed with regard to the assessment of attorneys’ fees against the State of Ohio. This finding is based on our holding that the award is barred by the Eleventh Amendment. However, the District Court on remand may wish to consider whether H.B. 800, effective January 1, 1975, which waives the immunity of the State of Ohio, is effective in this case.

The ease is remanded for findings with regard to Appellant’s consent to the award against him. If the District Court finds that Appellant did not consent to the award, but that an award of attorneys’ fees is appropriate, it must state its reasons for making the award, in order that the award can be properly reviewed.

WEICK, Circuit Judge

(concurring).

I concur in the reversal of the judgments against the State of Ohio and E. P. Perini, as Superintendent. The District Court never acquired jurisdiction over the State of Ohio because it was not made a party defendant in this case. Had it been made a party defendant, the State (as well as the Superintendent) would have had a complete defense of sovereign immunity under the Eleventh Amendment to the Constitution. Krause v. Ohio, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972), dismissed for want of a substantial federal question 409 U.S. 1052, 93 S.Ct. 557, 34 L.Ed.2d 506 (1972), rehearing denied, 410 U.S. 918, 93 S.Ct. 959, 35 L.Ed.2d 280 (1973); Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974); State ex rel. Williams v. Glander, 148 Ohio St. 188, 74 N.E.2d 82 (1947).

The Attorney General of Ohio had no ■power or authority to waive sovereign immunity of either the State or its officers and agent, or to consent to a judgment against either of them awarding attorneys’ fees. Grandle v. Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959); Ford Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459 (1945); cf. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The judgment entered against the State and the Superintendent is therefore void. Jordon v. Gilligan, supra,.

This leaves only the issue whether Mr. Perini may be held personally liable for fees to the attorney for the plaintiff.

I concur in the remand to the District Court to determine that issue and to adopt findings of fact and conclusions of law relative thereto.

It should be noted that under Ohio law the Attorney General is counsel for the State and for its various departments and agencies. The statute forbids any head of a State department or agency to hire private counsel. Ohio Rev. Code § 109.02.

Because of this statute, in my opinion, the Attorney General ought not to consent to a judgment against Mr. Perini individually unless he had either express or implied authority from Perini to do so. The District Court should take evidence on this issue and adopt findings of fact and conclusions of law.

In the absence of consent, in my opinion Mr. Perini individually had qualified executive privilege or immunity under the principles enunciated by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974).

In my opinion, no judgment can properly be entered against Mr. Perini individually unless the court finds from all of the evidence that he acted in bad faith. The District Court made a specific finding of good faith on the issues involving the Supplemental Complaint for damages. The factual findings on that issue involved careful consideration of a number of matters. It made no findings, however, on the issue of good faith in connection with the Amended Complaint. It may do so now.

EDWARDS, Circuit Judge

(dissenting).

In this case this court is faced for the first time with the following question:

After a federal district judge has heard a lawful suit against a state official (here the Superintendent of a state correctional institution) and entered an appropriate order (here by consent decree) which was clearly within his jurisdiction restraining him (the Superintendent) from continuing practices found (and here conceded) to have been in violation of the federal constitution, does an 11th Amendment defense prohibit that judge from ordering payment of an attorney fee (here conceded to be equitably appropriate and reasonable) to the counsel the District Judge had appointed to represent the indigent plaintiffs where the state through its Attorney General has represented the state official in his official capacity throughout the litigation, and the state would have to pay the fee awarded ?

Phrased in more general terms the question may likewise be stated:

Does an 11th Amendment defense prohibit an otherwise equitable and appropriate award of attorneys’ fees to the prevailing party in a suit to restrain a state official from violating the U.S. Constitution while acting in his official capacity ?

I would answer the questions “No” because :

1) The 11th Amendment contains no prohibition against costs or attorneys’ fees awarded in a successful suit filed against state officials as opposed to the state itself.

2) The Supreme Court of the United States has squarely decided this identical issue in a recent case which is binding upon this court. Sims v. Amos, 336 F.Supp. 724, 340 F.Supp. 691 (M.D.Ala.), aff’d, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972).

3) There is no precedent which either directly or by implication supports such a prohibition and there is much historic precedent from the Supreme Court and other Courts of Appeals (and statutory interpretation by the U.S. Congress) which argues strongly to the contrary.

4) This court as a whole has never passed upon the merits of this issue, although two different panels have by inadvertence recently reached opposite conclusions thereon. See Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) and Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974).

THE 11th AMENDMENT

The 11th Amendment to the Constitution provides:

“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

It should be noted that the Constitutional language does not in its terms bar suits by citizens of a state against that state. Such a prohibition has, however, been implied by settled Supreme Court precedent. Hans v. Louisiana, 134 U.S. 1, 10-11, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Nonetheless neither the specific language of the 11th Amendment nor any Supreme Court interpretation of it purports to bar suits against state officials to restrain them from violating the Constitution of the United States. (Indeed the cases where the federal courts have exercised such jurisdiction are legion.) And there is likewise neither 11th Amendment language nor Supreme Court precedent which holds that attorneys’ fees if otherwise legally justified are prohibited in an otherwise lawful, appropriate and successful suit against a state official acting in his official capacity.

THE CONTROLLING CASE

The identical issue which divides us in this case has recently been decided by the United States Supreme Court. In Sims v. Amos, 336 F.Supp. 924, 340 F. Supp. 691 (M.D.Ala.) aff’d 409 U.S. 942, 93 S.Ct. 290 (1972) a three-judge court, after entering an order for reapportionment, awarded to the Plaintiffs attorneys’ fees and expenses against the Governor, the state legislators, the Attorney General and the Secretary of State. On direct appeal to the United States Supreme Court these defendants represented to that court that the award of attorneys’ fees and expenses against the named state officials sued in their official capacities “was tantamount to the award of a money judgment against the State of Alabama.”

The Supreme Court of the United States affirmed the judgments of the three-judge District Court summarily and unanimously. In Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) on rehearing after the applicability of this af-firmance to the attorneys’ fees question became certain, the opinion of the court (upon which the majority in this case relies without discussion) held that because the Supreme Court affirmance of Sims v. Amos, supra, was summary in character and rendered without opinion, it was not precedent which was binding upon this court.

Respectfully I disagree. The fact that some justices of the Supreme Court may feel that a summary affirmance carries less weight with them than an argued case decided by full opinion and hence is easier for them to overrule, gives this court no right or power to overrule or disregard any decision of the United States Supreme Court. The Supreme Court (while paying respect to the doctrine of stare decisis) still has (and exercises) the absolute power to overrule any of its prior decisions whether decided by summary order or full opinion. This court has no power to overrule any Supreme Court decision. On the contrary, even if the great majority of our court feels that a decision of the Supreme Court is wrong in law and equity (See Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (majority opinion) and cf. Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) (majority opinion)), we are bound to follow and give effect to that decision. Indeed in the majority opinion in Milli-ken v. Bradley the Chief Justice relied upon a Supreme Court summary affirmance of a three-judge court decision in arguing by analogy that our court had erred. 418 U.S. 717, 741, 94 S.Ct. 3112 (1974) citing Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J.), aff’d 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972).

The Second Circuit has recently had occasion to review the question as to whether a summary order of the Supreme Court is controlling precedent. It held:

“Plaintiffs argue that the way is now open for the district court to consider their constitutional claim because of the following language in Mr. Justice Rehnquist’s majority opinion in Edel-man v. Jordan, supra:

‘[T]hese three summary affirm-ances obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the relief awarded by the District Court in this case. Equally obviously they are not of the same precedential value as would be an opinion of this Court treating the question on the merits.’

415 U.S. at 671, 94 S.Ct. at 1359 (emphasis added). According to plaintiffs, the Supreme Court has thus made clear that the lower federal courts are free to disregard as binding precedent a summary affirmance by the Court like Romero.

“We do not agree with this argument. The language quoted above does not say that the circuit courts can disregard summary affirmances by the Supreme Court. At most, it seems to suggest that the Court itself would feel less bound by principles of stare de-cisis in dealing with issues already decided by a summary affirmance. But we continue to believe that the privilege of disregarding even summary Supreme Court holdings rests with the court alone. As we said in our prior opinion, 478 F.2d at 540 :

[GJiven Romero, the slate is not clean; plaintiffs must obtain any further writings on it in this case from the Supreme Court.”

Doe v. Hodgson, 500 F.2d 1206 at 1207-1208 (2d Cir. 1974).

I agree. I feel that the Supreme Court order of affirmance in Sims v. Amos is absolutely binding upon us. It should be noted that Sims v. Amos is directly in point as to the facts of our instant case and requires our affirmance of the District Judge’s award of attorneys’ fees in this case.

OTHER PRECEDENT

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347 (1974), shows that the Supreme Court is unanimously committed to suits against state officers for prospective restraint of violations of the Federal Constitution — even where the judgment results in a financial burden being placed on the state and there has been an 11th Amendment defense.

In Edelman the Supreme Court majority opinion said:

“The injunction issued in Ex parte Young [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)] was not totally without effect on the State’s revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed. 2d 534 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these eases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.” Edelman v. Jordan, supra, 415 U.S. at 667, 94 S.Ct. at 1357 (Footnote omitted).

This language clearly means that the 11th Amendment does not bar injunctive relief against unconstitutional acts of state officers, even though such relief will have an impact on the state treasury.

The Supreme Court commitment to vindicating federal constitutional rights through suits against state officers is further exemplified by the very recent decision of a unanimous Court in allowing suits for damages against state officers, in one of the Kent State cases, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683 (1974).

Neither Edelman nor Seheuer dealt directly with attorneys’ fees. But if such litigation is within the jurisdiction of the federal courts, then such appurtenances of litigation as costs and attorneys’ fees (where otherwise appropriate) must also be within the federal courts’ jurisdiction where they are “ancillary effects” of suits to restrain state officers.

Aside from Sims v. Amos, supra, the controlling case in relation to our current problem is, I believe, Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1927). The Fairmont Creamery case did not involve attorneys’ fees, but in it the Supreme Court awarded costs of litigation squarely against the state of Minnesota. I can perceive no distinction for purposes of the 11th Amendment between the District Court’s power to award costs and its power to award attorneys’ fees.

In Fairmont Creamery, Chief Justice Taft said:

“That the sovereign is not to be taxed with costs in either civil or criminal cases by rule of court without a statute is undoubtedly true . But is the state to be regarded as a sovereign here? This court is not a court created by the State of Minnesota. The case is brought by a writ of error issued under the authority of the United States by virtue of the Constitution of the United States. It is not here by the state’s consent but by virtue of a law, to which it is subject. Though a sovereign, in many respects, the state when a party to litigation in this court loses some of its character as such.
“ . . .A rule of this court as to the awarding and division of costs is, of course, not a statute, but such a rule seems to us to be within the inherent authority of the court in the orderly administration of justice as between all parties litigant, properly within its jurisdiction, except the sovereign government.
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“ . . . We think that the rule construed by long practice justifies us in treating the state just as any other litigant, and in imposing costs upon it as such . . . .” Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 73-75, 77, 48 S.Ct. 97 (1927).

Attorneys’ fees, where otherwise appropriate are, like costs, a necessary part of an action to vindicate Constitutional rights. They are not comparable to an award of damages or of retroactive benefits.

There is also other precedent for holding that a District Judge has jurisdiction to award attorneys’ fees (where such would normally be allowed) against state officers who plead an 11th Amendment defense.

The Ninth Circuit has recently decided a case holding that an award of attorneys’ fees in a § 1983 suit against state officers is warranted. Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974). See also Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 484 F.2d 1331 (1st Cir. 1973); Utah v. United States, 304 F.2d 23 (10th Cir.), cert. denied 371 U.S. 826, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962); NAACP v. Allen, 340 F.Supp. 703 (M. D.Ala. 1972); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), aff’d, 488 F.2d 559 (9th Cir. 1974).

In another recent case Judge Tuttle, writing for the Fifth Circuit and dealing with the precise issue confronting us, said:

“The only issue of concern in this appeal arises from the fact that the trial court fashioned its decree for attorney’s fees in a manner that caused the defendants to challenge this award as being prohibited by the principle of sovereign immunity and, by analogy, to the eleventh amendment to the United States Constitution. See Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889). This contention is a familiar one in cases in which courts have entertained actions against state officials, boards and commissions in equity. See, e. g., Orleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir. 1957) and the many school cases subsequently decided by this court.

“In Sims v. Amos, 336 F.Supp. 924, 340 F.Supp. 691 (M.D.Ala. 1972), aff’d., 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), the District Court for the Middle District of Alabama dealt with the award of attorney’s fees and expenses incurred in a suit against the Governor, state legislators, the attorney general and the secretary of state of Alabama. The Court expressly held against the ‘Alabama State Legislators, the Governor, the Attorney General and the Secretary of State.’

“In their jurisdictional statement to the Supreme Court, the defendants in Sims stated:

‘the award to the plaintiffs of their attorney’s fees and expenses incurred and in the taxing of these items as costs against the defendants who are elected state officials sued in their official capacity was tantamount to the award of a money judgment against the State of Alabama in direct violation of the doctrine of sovereign immunity.’

The Supreme Court affirmed the judgment of the three-judge district court without opinion. In the California case of La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal. 1972), the court noted:

‘That federal courts have awarded attorney’s fees to successful litigants against state officers without statutory authority cannot be denied. See, e. g., Sims v. Amos, supra, (Governor of Alabama and Secretary of State); Wyatt v. Stiekney, 344 F.Supp. 373 (M.D.Ala. decided April 13, 1972), (State regulatory agency). See also Cooper v. Allen, supra [467 F.2d 836), (5th Cir. 1972)] (Mayor of Atlanta, Georgia); Brewer v. School Board of Norwalk (sic), supra [456 F.2d 943 (4th Cir. 1972)] (school board); Hammond v. Housing Authority & Urban Renewal Agency of Lane County, 328 F.Supp. 586 (D.Or. 1971), (municipal housing authority). But of course, the eleventh amendment has been read not to apply to local bodies. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890).
‘Since we conclude as the court did in Sims that the state may no more immunize an individual from costs incident to an injunction than it may insulate him from the injunction itself, we find that sovereign immunity does not bar an award of attorney’s fees against Chief Engineer Legarra. . . . ’ 57 F.R.D. at 101-102.

“This Court has said that in such a suit as this the award of attorney’s fees is not an award of damages against the State, even though funds for payment of the costs may come from the state appropriations. In Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970) we said:

‘Section 1983 was designed to provide a comprehensive remedy for the deprivation of federal constitutional and statutory rights. The prayer for back pay is not a claim for damages, but is an integral part of the equitable remedy of injunc-tive reinstatement.’ 427 F.2d at 324.

“Although the trial court had the power to assess attorney’s fees and expenses against the individual defendants found to have engaged in the unconstitutional conduct, we think it does not vitiate the award because the trial court prescribed that this part of the costs were to be payable ‘from funds which the Mississippi Legislature, at its 1973 Session, may appropriate for the operation of the Mississippi State Penitentiary,’ and were not to be ‘the personal, or individual, liability of the varied defendants or any of them.’ See also, the following cases which have dealt with this question: La Raza Unida v. Volpe, 57 F. R.D. 94 (N.D.Cal. 1972); Brewer v. School Board of City of Norfolk, Va., 456 F.2d 943 (4th Cir. 1972) cert. den., 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Thompson v. Richland Parish Police Jury, 5 Cir., 478 F.2d 1401 [No. 72-3413, June 13, 1973]; Wyatt v. Stickney, 344 F. Supp. 387 (M.D.Ala. 1972).” Gates v. Collier, 489 F.2d 298, 302-303 (5th Cir. 1973). (Footnotes omitted.)

The issue in this case is a matter of national importance far exceeding the interests of the parties involved. In many instances Congress has developed statutes designed to implement and enforce basic constitutional rights through the use of private suits where plaintiffs act like private attorneys-general. In many areas of constitutional law such as voting rights, prisoner rights, sex and race discrimination cases, the claimants are likely to be indigent and unable to pay attorneys’ fees. For us to fail to follow recent (and old) Supreme Court precedent and the decisions of other Circuits in allowing attorneys’ fees in this and similar cases may seriously impede the vindication of rights guaranteed by the U. S. Constitution.

OTHER CASES IN THIS COURT

In recent months this court has had before different panels four cases involving the identical question discussed above. Jordan v. Gilligan, 500 F.2d 701, 6th Cir.; Milburn v. Huecker, 500 F.2d 1279, 6th Cir., Taylor v. Perini, No. 73-2071; Incarcerated Men of Allen County v. Fair, No. 74-1052.

The first ease to come to decision by a panel of the court was Jordan v. Gilligan, supra. There in a case quite different from our instant case in that equitable entitlement to any attorneys’ fees' from the state was highly dubious, the opinion of the court ruled out the attorneys’ fees, holding them to be barred by the 11th Amendment. A motion for rehearing en banc was defeated 6 to 3 without our court as a whole ever reaching the merits of the matter. After that vote was recorded the bound volume of Supreme Court reports showing that the Supreme Court had squarely affirmed the allowance of attorneys fees in Sims v. Amos appeared.

Thereupon the panel of the court which had the Jordan case granted rehearing, apparently to reconsider its position on the 11th Amendment question. (The previous opinion had relied upon the fact that reported affirmance of Sims v. Amos had not applied to the three-judge court judgment in 340 F. Supp. 691 which contained the order of attorneys’ fees.) While such reconsideration was in progress another unanimous panel of the court (of which the writer was a member) decided and sent to the printer an opinion in Milburn v. Huecker, 500 F.2d 1279 (6th Cir. 1974), which remanded the attorneys’ fee question in that case with the clear implication that the District Judge was free to award such if he found appropriate equitable grounds for so doing — even if the fees would actually have to be paid by the state concerned. The Jordan panel, however, decided to reiterate its previous holding by arguing that even if Sims v. Amos was in point and allowed attorneys’ fees against an 11th Amendment defense, this court had the power to disregard the Supreme Court’s af-firmance of Sims because as noted above the affirmance was summary and not accompanied by formal opinion. Processing of the two cases in the hands of the printers gave the Jordan opinion an earlier date of publication than the Mil-burn opinion. Since the two opinions reach opposite results, it is this case which will determine the ultimate position of our circuit.

For the reasons spelled out above I believe the Sims decision by the United States Supreme Court is controlling in this case and the Jordan opinion upon which my colleagues rely is in error in holding that this court has the authority to disregard it.

Additionally, I see no need for remand of this case. The District Judge has made clear in his findings that Defendant Perini was acting at all times in good faith and in the course of his official duties. I do believe that (following the formula employed in Gates v. Collier, supra) the judgment should be amended to run only against Defendant Perini as Superintendent of the Marion Correctional Institution and should require him to pay the sum assessed as an attorney fee out of any sums appropriated for the operation of that institution.

      . The pertinent provisions of Rule 60(b) provide:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
      (4) the judgment is void ;
      * * * * *
      or (6) any other reason justifying relief from the operation of the judgment.

      . This figure was reached by agreement of the parties.

      . While Appellant Perini has not raised as an issue his lack of consent to the award of attorneys’ fees, we mention the point because we are not clear as to the reasoning on which the award was based,

      . We have previously discussed the strong policy favoring enforcement of settlement agreements. Kukla v. National Distillers, 483 F.2d 619 (6th Cir. 1973). It has been held that a judgment entered by agreement of the attorney of record will be set aside only upon affirmative proof by the party seeking to vacate it that the attorney liad no right to consent to its entry. Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966). Our difficulty arises, however, from an inability to determine whether there has in fact been a consent by the attorney.

      . Some of the considerations would be whether the act would apply retroactively to cases pending on appeal, Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006 (1974); whether by virtue of the waiver, a federal court can make an award of attorneys’ fees against the State of Ohio; and whether the waiver as to actions in federal court would be applicable prior to the January 1, 1975 effective date of the act.


source: Caselaw Access Project

author: FAIRCHILD, Circuit Judge. STEVENS, Circuit Judge

license: Public Domain

text:
    William COUSINS, Jr., et al., Plaintiffs-Appellants, v. CITY COUNCIL OF the CITY OF CHICAGO et al., Defendants-Appellees.
    Nos. 73-1891, 73-2127.
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 1974.
    Decided Sept. 9, 1974.
    Stevens, Circuit Judge, concurred and filed opinion.

      Michael L. Shakman, Aram A. Har-tunian, Robert Plotkin, Robert L. Tucker, Chicago, 111., for plaintiffs-appellants.
    Richard L. Curry, Corp. Counsel, William R. Quinlan and Edmund Hatfield, Asst. Corp. Counsel, Thomas A. Foran and Ian H. Levin, Earl L. Neal, Sp. Asst. Corp. Counsel, Chicago, 111., for defendants-appellees.
    Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges.
   FAIRCHILD, Circuit Judge.

This action challenging the validity of the 1970 reapportionment of Chicago’s aldermanic wards on the grounds of racial and ethnic gerrymandering is here again on appeal from the judgment following the second trial. Many of the pertinent facts (including the 1970 map of Chicago’s wards) are set out in our earlier opinion (reversing and remanding the case for further proceedings) and will not be repeated here. Cousins v. City Council of City of Chicago, 466 F.2d 830 (7th Cir. 1972), cert. denied 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151.

On retrial the district court found that the evidence fails to establish that the boundaries of any of the wards except the 7th are the product of purposeful or invidious racial or ethnic discrimination. The court found that defendants intended to change what they believed was a black majority in the 1961 7th ward into an overwhelmingly white majority. To correct the 7th ward situation, the court deemed it sufficient to redraw the boundary between the 7th and 8th wards so that each had a majority of black residents of approximately 52%, and ordered a special election November 27, 1973 in the modified 7th ward. Taxable costs were awarded to plaintiffs, but all other relief sought by them was denied. The special election was held and the person elected is serving.

Plaintiffs appealed from the judgment, except for specified portions including those with respect to the 7th and 8th wards, and they appealed from a supplemental order denying them attorney’s fees. Defendants cross appealed from described portions of the judgment, including those affecting the 7th and 8th wards.

At the second trial much of the evidence from the first trial was reintroduced. The most important additions were the second deposition of Alderman Keane and a sample ward map, offered by plaintiffs and referred to as the Singer map. Mr. Rubin Singer prepared this map using the figures available when the subcommittee had drawn the 1970 map, achieving equality of population within the same narrow limits as the subcommittee, maintaining contiguity, and making the wards as compact, i. e., as nearly square, as possible. He did not take into account the location of black or Spanish-language people.

In our earlier opinion, we stated that although no minority racial or ethnic group is entitled to have any particular voting strength reflected in the city council, “such strength must not be purposefully minimized on account of . race or ethnic origin.” 466 F.2d at 843. The district court was satisfied that, except for the 7th ward, the proof did not establish purposeful minimization. In examining whether its findings were clearly erroneous (mindful of our duty of specially close scrutiny, 466 F.2d at 837), we shall first consider the overall result of 15 black majority wards in the 1970 map, and any evidence that this number instead of a greater one was the result of a purpose to minimize black voting strength. We shall then examine the evidence with respect to the choice of ward lines in particular regions pointed out by plaintiffs and considered by the district court. Finally we will focus on the ward boundaries claimed to be gerrymandered to the detriment of Puerto Ricans and the Spanish-language group.

I. The possibility of drawing the inference of purposeful minimization from the overall result.

In our earlier opinion, we indicated that plaintiffs had fallen short of producing sufficient persuasive circumstantial proof that the ward boundaries were the result of purposeful discrimination. We suggested that a demonstration that one or more maps could be drawn, “following an objective standard, rationally related to redistricting and indifferent to race” producing greater voting strength for minority groups, would be persuasive. 466 F.2d at 843. The only map introduced pursuant to this suggestion was the Singer map. Defendants note that the mapmaker is a “partisan,” but do not otherwise make any claim that the map is not objective or that it is defective.

In their arguments before the district court on remand and before us, the parties utilized the Singer map primarily to aid in their analysis of particular regions. At this point, we shall inquire whether the 1970 districting map, when evaluated in comparison with a racially neutral districting plan shows such difference as to be itself a basis (or perhaps one basis in conjunction with others) for inferring a purposeful minimization of the voting strength of the racial minority.

A table is set out in the margin comparing the number of wards created by the Singer map and the 1970 map with given percentages of black population. At the outset we note as argued by plaintiffs that the Singer map created 16 black majority wards (out of a total of 50 wards) while the 1970 map produces only 15 black majority wards. Looking further, and assuming that there is probably enough political strength in a 35% minority to be significant for our present purpose, we have compared the number • of wards with 35% or more black population under the 1970 map and the Singer map. There are 19 such wards under the Singer map and 18 under the 1970 map.

The record contains considerable evidence that Alderman Keane was aware of the racial compositions of various areas of the city, and that the choices of some particular ward lines were motivated by that consideration. It is difficult to say that the differences between the number of wards with certain percentages of black residents in the 1970 map and in the Singer map are sufficient to be highly persuasive that there was purposeful minimization of black voting strength in the 1970 map, and even in the light of the evidence of awareness of race and consideration thereof by Keane, it is our judgment that the finding of the district court is not clearly erroneous.

II. Evidence as to specific boundaries.

On remand, the parties and trial court focused on the extent to which racial considerations might have affected ward boundaries in particular regions of the city. We now review the results of this approach.

A. The 7th and 8th wards.

Defendants cross-appeal from the district court’s order modifying the boundaries of the 7th and 8th wards to eliminate invidious discrimination.

At the outset the controversy on appeal concerning the 7th ward is not moot even though the election has been held in the modified 7th ward. If there were to be no redistricting in 1974, the present ward boundaries would apply in the elections in 1975 and 1979. Although the city council has adopted a resolution directing the preparation of a new redistricting ordinance to govern the 1975 election, a new ordinance has not yet been enacted. Plaintiffs also represent that the subcommittee designated to prepare the new districting has requested a city department to prepare a new plan based upon the shape and location of wards in the 1970 ordinance.

In reviewing the district court finding of purposeful discrimination in drawing the 7th ward boundaries, it is convenient to consider two distinct stages of the formulation of the 7th ward as constituted in the 1970 ordinance: first the changes in formulation leading to the final Bell-student map, and, second, the changes which occurred during the subcommittee proceedings.

1. Comparison of the 1961 map with the final Bell-student map.

A rectangular appendage of the L-shaped 9th ward occupied the southeastern corner of Chicago on the 1961 map. The main portion of ward 9 extended north from the southern city limit and west of ward 10; the appendage extended eastward to the Indiana state line and lay south of the 10th ward. Student intern Taylor’s uncontroverted testimony is that the eastern appendage of the 9th ward was eliminated in the drafting of the Bell-student map in order to achieve compactness. The new 10th ward, occupying the southeastern corner of the city, was a rectangle, with greater north-south than east-west dimensions.

The changes in the 9th and 10th wards were made before the 7th ward was drawn. As a result of adding the eastern appendage of the 9th ward to the 10th, the 10th ward would be overpopulated if its 1961 northern boundary were maintained. To compensate, the northern boundary of the 10th was moved south.

The southern boundary of the 7th was and is the northern boundary of the 10th, and drawing that line further south necessitated either a southerly shift of the 7th, or creation of a new ward between the 7th and 10th. On the 1961 map, the northern boundary of the 7th was at 67th street. Taylor’s undisputed testimony is that when first drawn by Bell and the students, the northern boundary of the 7th was south of 73rd street, thereby excluding the residence of Alderman Bohling (a Caucasian). Bell and the students regularly consulted a list of the names and addresses of all incumbents and attempted not to draw an incumbent out of the ward most substantially corresponding to his 1961 ward. Apparently for this purpose, the northern boundary of the 7th was shifted north to 71st street, thereby including Bohling’s residence. Finally, in order to approach the desired numerical result, and because of the limitation of Lake Michigan at the east, the western boundary was shifted eastward, thereby decreasing the population in the 7th ward.

Comparing the racial composition of the 7th ward on the 1961 map and of the 7th ward on the final Bell-student map, using 1970 census figures, it appears that the percentage of black residents in the 1961 7th was 48.3% and in the Bell-student 7th only 29.4%. The parties had believed the percentage of black residents in the 1961 7th ward was higher, and stipulated it was 55%-60%. Subsequent to the first appeal it was announced that black persons had been un-dercounted in the 1970 census, to the extent of 7.7% nationwide, although the distribution of the undercount in particular areas has not been determined. Presumably the percentages we have derived from census figures should be increased to some unknown extent.

Thus the 7th ward on the 1961 map contained a majority or very near majority of black persons, while they are approximately a 30% minority in the 7th ward of the final Bell-student map. Of course changes in other ward boundaries occurred as a result of this change. Given the evidence that the choices of boundaries were responses to legitmate or nonjusticiable concernsb such as creating a more compact 9th ward, drawing the 7th so as to include an incumbent alderman, and seeking equality of population, and the absence of evidence pointing specifically to any racial motivation, the difference between the percentages of black persons in these two areas will not, in our opinion, support an inference that the change in ward boundaries was purposeful minimi2;ation of black voting strength. We are aided in reaching this conclusion by the failure of the Singer map to produce more black majority or substantial black minority wards in the southeastern part of Chicago, encompassing the wards altered by the students, than did the 1970 map.b

(ii) From the final Bell-student map to the 1970 map.

We now look for support for the inference of purposeful minimization of black voting strength in the subcommittee proceedings. The procedure followed is set out in our earlier opinion. 466 F.2d at 834-835. In forming the 7th ward, Alderman Keane began at its southern boundary, a natural line formed by the Chicago Skyway on the southwest and the Calumet River on the southeast. This boundary between the 7th and 10th differed from the student map only in that tract 4610 was included in the 7th ward as Alderman Keane drew it, and not in the 10th ward as the students drew it. 4610 is a triangular tract which, when put in the 7th, filled in the natural Skyway-Calumet River boundary of that ward. Its population is 22.55% black.

Plaintiffs’ contention with regard to diminution as a result of the subcommittee proceedings focuses on the allocation of two groups of census tracts between the predominantly black 8th ward and the predominantly white 7th ward, specifically tracts 4309, 4311, and 4312, tracts with 85-90% black residents, located next to the northwest portion of the 7th ward (as enacted in 1970), and tracts 4604 and 4603, tracts with high percentages of white residents, located in the central western portion of the 7th ward as enacted.

Two of the three black tracts and both white tracts were within the 7th ward when first called off by Alderman Keane. By the end of the first subcommittee session on the 7th ward, both white tracts were within the 8th ward and all three black tracts were in the 7th ward.

At the end of the next session concerning these wards, one of the predominantly white tracts had been shifted back into the 7th and the two predominantly black tracts had been transferred into the 8th.

During the third revision, considerably later, the predominantly white tract under consideration and remaining in the 8th ward was transferred to the 7th and the predominantly black tract under consideration and remaining in the 7th was transferred to the 8th.

The transfers of two predominantly white tracts into the 7th ward and three predominantly black tracts into the 8th ward would be consistent with a purpose of minimizing black voting strength in the 7th ward by adding black residents to the 8th, where black residents already had a high majority. At least awareness of the racial composition was shown by Alderman Keane’s comment to Alderman Cousins, the black alderman representing the 8th ward, concerning the transfer of tract 4603 from the 8th to the 7th — “I understand that there are a lot of Polish people in this Tract 4603 and that you don’t want to represent them.” Any tendency of these facts to support a finding that the changes were motivated by a purpose to minimize black voting strength is offset by the evident greater compactness of the 7th and 8th wards as finally drawn when contrasted to the earlier subcommittee versions.

Moreover the net changes subsequent to the final Bell-student map had only the effect of decreasing the percentage of black residents in the 7th ward from 29.4% to 26.9% or somewhat larger figures if the census undercount of black persons be considered.

Summarizing our review of the district court finding o’f purposeful discrimination in drawing the 1970 7th ward, we consider: (1) the fact that although the change from the 1961 7th ward to the 1970 7th ward represented, in a sense, the loss of one black majority ward, 'the 1970 map produced 15 black majority wards (as compared with 11 on the 1961 map), with little persuasive proof that the number was held at 15 with a racially discriminatory purpose; (2) the fact that the greatest changes in the ward and its racial composition occurred in the preparation of the Bell-student map and were responses to legitimate or nonjusticiable concerns; (3) the fact that although there was evidence consistent with an inference that some of the changes made by the subcommittee were racially motivated, there were also legitimate explanations for some of them in terms of compactness, and in any event, a relatively small reduction (2.5%) in the size of the approximately 30% black minority is insignificant as related to the issues here. On the entire evidence we are left with the definite and firm conviction that a mistake has been committed, and conclude that the finding as to the 7th ward is clearly erroneous. We understand that defendants do not seek a new election nor other change in representation of the 7th ward during the current term, which has less than one year to run. Therefore, we limit our reversal so as not to affect the tenure of the aider-man now serving during the current term.

B. The nth and 16th wards.

Plaintiffs assert that the findings of the district court with regard to the 14th and 16th wards entitle plaintiffs to relief as a matter of law. Plaintiffs’ theory is that as first drawn by Bell and the students, the wards in.which white aldermen Burke and Sheridan reside were majority black; that pursuant to Alderman Keane’s explicitly racial instructions, the early student map was redrafted to place incumbents Burke and Sheridan in majority white wards; and that the changes involved in such incorporation created one or more additional such wards and one or more fewer wards of majority black population.

A careful examination of the findings reveals no basis for plaintiffs’ theory. Properly, and consistently with plaintiffs’ theory, the district judge found that Alderman Keane made racially explicit statements to Bell and the students ; that pursuant to Keane’s instructions the Bell-student map was revised so as to place the residences of white aldermen Sheridan and Burke in white majority wards; and that the motivation for these changes was to ensure the reelection of these two “bright young men” by providing them with substantially white electorates.

But the district court made a further finding: the revisions made to “accommodate” the white incumbents did not, in drawing white majority wards which would include those aider-men, produce a smaller number of black majority wards than had existed before the revision. Because the question raised by this action is whether the defendants purposefully minimized black voting strength and is not merely whether defendants’ line-drawing was affected by racial considerations, this critical finding, if not clearly erroneous, is fatal to plaintiffs’ claim. After carefully scrutinizing the record, we conclude that the finding that the changes in this region did not minimize black voting strength is not clearly erroneous.

The 14th, 15th, and 16th wards are located in the southwest part of the city and form a region roughly approximating a square in shape. The population in the southeast corner of this region is almost entirely black; this area is adjoined at the north and west by an inverted L-shaped region virtually all the residents of which are white. Because of the clearly delineated racial makeup, it is clear that the region occupied by these three wards could not be divided into compact wards, of which two have black majorities. A region roughly similar to the region occupied by the 14th, 15th, and 16th wards on the 1970 map was also divided into three wards on the 1961 map and again a roughly similar region was so divided on the final Bell-student map. Each map produced two substantially white majority wards and one almost completely black ward to the southeast. Furthermore, the Singer map does not significantly alter the proportions in the same general region; instead, it creates a number of virtually all white wards and one solidly black ward.

The record does not contain a facsimile of the first draft of the Bell-student map which purportedly created two black majority wards in nearly enough the same region to include the residences of Burke and Sheridan. Instead plaintiffs rely upon Alderman Keane’s comment that the wards were “too black” (the inference is that he would not make such a statement unless two black majority wards were created by the Bell-student draft), upon one intern’s interpretation of Keane’s remarks as meaning the wards were majority black as drawn; and upon Taylor’s testimony that subsequent to the conversation with Keane the wards in this region were shifted some unspecified distance to the west thereby incorporating more whites into the western portions of wards 14 and 15 on the 1970 map. Although this evidence has some probative force, we cannot say that the district judge’s finding that no substantial diminution in black voting strength resulted was clearly erroneous. Accordingly, notwithstanding the fact that the remand gave them an opportunity to develop additional statistical evidence on this issue, plaintiffs did not satisfy their burden of proof with regard to these wards.

III. Dilution of voting strength of Spanish-language groups.

We shall first consider plaintiffs’ claims with regard to the group delineated as Puerto Rican; then, we shall examine plaintiffs’ contentions about the Spanish-language group.

On appeal, plaintiffs do not press their initial argument that looking at the Puerto Rican population of Chicago on a city-wide basis, it appears that the voting strength of Puerto Ricans has been purposefully diminished. The district court found that there are only 49,500 persons in the Puerto Rican category; that they are scattered over an area consisting of three or four wards; and that it would be impossible to create a Puerto Rican majority in any single ward. We conclude that these findings are not clearly erroneous.

The only regional challenge with regard to the Puerto Rican group involves changes between the 1961 and 1970 boundaries of the 26th and 31st wards. Specifically, plaintiffs emphasize the exclusion from the 31st ward of the Puerto Rican region to the east (census tracts 2425 and part of 2426) and the incorporation of the non-minority tracts in the west (census tracts 2306 and 2313).

There is ample support in the record for the district court’s finding that in accord with Alderman Keane’s wishes, Bell, in drawing the final Bell-student map, extended the 31st ward as far west as possible in order to avoid the inclusion of additional Puerto Ricans in Keane’s ward. See 466 F.2d at 838-839. The boundaries on the Bell-student map and on the 1970 map are very similar. Relief would be justified therefore had plaintiffs been able to demonstrate a cognizable dilution of Puerto Rican voting strength.

The district court found, however, that the failure to include the Puerto Rican regions in the 31st ward caused no discernible loss of Puerto Rican voting strength; we conclude that this finding is not clearly erroneous. The 1970 census figures reveal that as enacted ward 31 had a Puerto Rican population of approximately 25%. If the boundaries of the 1961 map had been retained ward 31 could have been as much as about 32% Puerto Rican. We do not think this change is sufficiently substantial, especially in light of the corollary decrease in Puerto Rican voting strength in the 26th ward if the 1961 boundaries are retained for the 31st ward.

We also conclude that the district court’s finding that there was no significant diminution in black voting strength as a result of the attempt to keep the 31st ward to the west is not clearly erroneous. Had the 1961 boundaries of ward 31 been retained, the black population would have increased only from approximately 1.4% to 1.7%.

During the second trial plaintiffs attempted to broaden the minority group being considered from that of Puerto Ricans to the Spanish-language group. We think the district court acted within its discretion in concluding that plaintiffs’ failure to amend their complaint to conform with this additional proof and to add a named plaintiff representing the Spanish-language group prevented consideration on the merits.

Furthermore, as noted by the district court, the evidence introduced indicates that the Spanish-language group totals only about 80,000 persons, contains an unknown number of aliens who cannot vote in elections, and is so scattered as to constitute at best a substantial minority. Under these circumstances, we are not persuaded by the fact that the Singer map created one ward with approximately 42% Spanish-language population while under the 1970 map the most substantial Spanish-language minority comprises only 33% of the population of the ward.

IV. Compactness and burden of proof.

In our earlier opinion we indicated that deviations from compactness may be relevant in establishing invidious discrimination but that otherwise lack of compactness presents state law questions. 466 F.2d at 833-34. Plaintiffs have not demonstrated that the district court failed to follow this principle.

Plaintiffs argue that the district court applied incorrect rules governing the burden of proof. Specifically plaintiffs object to the failure of the district court to shift to defendants the burden of establishing the absence of discrimination following plaintiffs’ introduction of historical evidence and statistical evidence and to the district court’s requirement that plaintiffs’ burden of persuasion be measured by the “clear and convincing” standard.

Turning to plaintiffs’ first argument, it does not appear to be addressed to the strictly evidentiary question of which party has the burden of coming forward with evidence but to the more substantive inquiry about whether the district court should have applied the “strict scrutiny” test, placing the burden of justifying the 1970 ordinance on the defendants. As urged by plaintiffs,

“[P]revious decisions have indicated, strict scrutiny means that the State’s system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a ‘heavy burden of justification,’ that the State must demonstrate that its [legislation] has been structured with ‘precision,’ and is ‘tailored’ narrowly to serve legitimate objectives and that it has selected the ‘less drastic means’ for effectuating its objectives. . . . ” San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973).

Because most of the Supreme Court decisions touching upon the allocation of burdens in racial gerrymandering cases involve challenges to multimember districts, we first consider the bearing of such authority upon actions where single-member districts are claimed to dilute minority voting strength. The Supreme Court has long recognized that there is a “tendency” of multimember districts “to submerge minorities” but has not held that multimember districts are illegal per se. See Whitcomb v. Chav-is, 403 U.S. 124, 142-143, 159, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and cases cited therein. We think that if the cases reveal an unwillingness of the Supreme Court to shift the “burden of justification” (as urged by plaintiffs here) in causes involving the somewhat “suspect” multimember districts, such an allocation would be even less likely in the context of a challenge to single-member districts.

Although we recognize that fundamental constitutional concerns about voting and racial discrimination are intertwined in racial gerrymandering cases, plaintiffs have not cited nor are we aware of any such action, involving either multimember or single-member dis-tricting, in which the “strict scrutiny” analysis, as defined in San Antonio, has been applied.

In Whitcomb, an action challenging state statutes creating a multimember district for the election of state senators and representatives, the Supreme Court stated that the “challenger [must] carry the burden of proving that multi-mem-ber districts unconstitutionally operate to dilute or cancel the voting strength of racial . . . elements.” The Court reversed the three-judge district court, which had invalidated the reapportionment plan, in part because the Court did not think that plaintiffs had adequately demonstrated an actual dilution of voting strength.

In Whitcomb, unlike our case, plaintiffs conceded that the multimember dis-tricting was not purposefully designed to dilute the vote of minorities although such minimization was alleged to result. Whitcomb, supra, at 149, 91 S.Ct. 1858. Furthermore, when distinguishing the facts before it, from actions involving allegedly purposeful devices, the Supreme Court stated;

“It needs no emphasis here that the Civil War Amendments were designed to protect the civil rights of Negroes- and that the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination. There has been no hesitation in striking down those contrivances that can fairly be said to infringe on Fourteenth Amendment rights.” Whitcomb at 149, 91 S.Ct. at 1872.

Nonetheless, the above language does not mandate the “strict scrutiny” test urged by plaintiffs. In the racial gerrymander case cited with approval following this passage, the three-judge district court did not place the burden of justifying the legitimacy of the multi-representative districts upon the state. Sims v. Baggett, 247 F.Supp. 96, 107-110 (M. D.Ala., 1965). The other racial gerrymander case cited, Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110 (1960), is not significant here as it involved a ruling on a motion to dismiss; all allegations of plaintiffs were assumed to be true.

More recently, the Supreme Court has affirmed the judgment of a three-judge district court which allocated the burden to the plaintiffs to establish that a Texas multi-member constituency apportionment scheme minimized voting strength of black people and Mexican Americans. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), aff’g Graves v. Barnes, 343 F.Supp. 704, 720 (W.D.Tex. 1972). The Supreme Court did not review the trial court’s disposition of the challenge to a single-member districting scheme in a county, but we note that once again the burden had been placed squarely upon the challengers and no burden of justification was placed unon the state. Graves, 343 F.Supp. at 735. The Supreme Court cases of Kil-garlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967) and Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964) also indicate that the “strict scrutiny” test has not been applied in racial gerrymandering cases.

In sum, it appears that in Sims, Kilgcurlin, and Wright (to the extent the Supreme Court cited them with approval or affirmed), the trial courts made their determinations whether plaintiffs had established unconstitutional racial gerrymandering upon all the evidence, without allocating the burden of justification to the defendants. See generally Burns v. Richardson, 384 U.S. 73, 88-89, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). We conclude that the district court in the instant case properly followed this approach.

We note that plaintiffs rely in their argument upon the facts suggesting past discrimination referred to in our earlier opinion, 466 F.2d at 840-841. These facts were in the record on the first trial. It is implicit in our opinion that we did not deem them adequate to satisfy plaintiffs’ burden. Indeed we considered whether plaintiffs had shown enough so that the matter could be resolved on a limited remand by the production of a map like the Singer map. We rejected this solution, and decided that a new trial of the issues was appropriate. 466 F.2d at 843-844.

Plaintiffs’ final argument is that the challenger’s burden of persuasion should be measured by the more lenient “preponderance of the evidence” standard rather than the “clear and convincing” standard applied by the district court here. There is language in Sims, Kilgarlin and Wright indicating that the presumption of constitutionality adheres to reapportionment statutes even when challenged on the ground of racial gerrymandering. On the other hand in Graves, in a portion of the opinion not reviewed by the Supreme Court, the district court appears to have required only preponderating evidence of substantial if not egregious discriminatory effects caused by reapportionment. Graves, 343 F.Supp. at 735. We need not resolve this question here. From our analysis of the evidence and the observations of the district court, we are confident that the district court’s assumption that a preponderance of the evidence would have 'been insufficient unless the proof could be found clear and convincing made no difference in the finding made.

V. Attorney’s fees and other costs.

Plaintiffs’ application for attorney’s fees for over 1,000 hours of services and other non-taxable costs was denied by the district court. This court joins with the district court in acknowledging that attorneys for the plaintiffs have been diligent. Not only have they caused a searching inquiry into an important public issue, but they have compiled a record which is full of important information which may be helpful in testing future districting for invidious discrimination. Their exposure of official lack of candor concerning the Bell-student map, 466 F.2d at 835, was itself substantial public service.

Nonetheless, particularly in view of the ultimate result, we find no abuse of discretion in denial of their application for fees and other expenses.

Defendants argue that the award of taxable costs to plaintiffs was erroneous and must be reversed if we reverse the judgment as to the 7th and 8th wards. Defendants, however, failed to appeal from the portion of the judgment awarding costs.

Insofar as the judgments and orders appealed from ordered a change in the boundaries of the 7th and 8th wards of the City of Chicago, they are reversed, except that said reversal shall not affect the status of the aldermen of those wards, now serving, before the end of the current term of office. In all other respects they are affirmed.

STEVENS, Circuit Judge

(concurring) .

When resolution of a complex factual issue depends heavily on inferences to be drawn from circumstantial evidence, it is entirely appropriate to analyze a variety of statistical data. I agree completely with Judge Fairchild’s assumption that a 35% minority may be sufficiently significant to justify consideration of the number of wards containing such a minority, as well as the number containing a majority of an allegedly disadvantaged group. Since I have expressed the opinion that identifiable political and economic minority groups, as well as racial and ethnic groups, are entitled to constitutional protection against gerrymandering, see 466 F.2d at 848-853, it is important for me to add the caveat that my concurrence in Judge Fair-child’s meticulously accurate opinion does not imply that I would necessarily equate a 35% minority with working control of a political subdivision. It is merely one among several yardsticks which the proponent of a gerrymandering claim is entitled to put forward; its significance would obviously vary from case to case.

Because the issues presented by this case are of unique importance and arise in an area of the law which is largely undeveloped, I would add one further comment on the significance of Judge Fairchild’s opinion. It demonstrates, I believe, how important a careful and objective appraisal of the facts may be in a case of this character. It is judgments based on such appraisals that have made the process of case-by-case adjudication such an acceptable mechanism for orderly development of the law. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and countless other landmark cases, the outcome was compelled by facts which spoke — indeed, shouted — for themselves. Although there are disturbing aspects of this case, and although, unlike those eases, the constitutional claim fails in this ease, a thorough review of the evidence makes the required result perfectly clear. Those who would hereafter engage in gerrymandering must anticipate equally careful analysis of comparable claims in the future.

      . Purposeful minimization of the voting strength of a minority racial or ethnic group is the sort of conduct proof of which is unlikely to be direct or specific. A finding that the challenged districting reflects such discrimination must usually rest on inferences from circumstances. One approach, where sucli a claim is made is to compare the number of black majority wards in the challenged map with another map which might equally reasonably be drawn, but with more such wards, and assess whether the difference is more probably explained by a purpose to discriminate than by legitimate considerations.

      . Singer was a member of the Board of Directors of plaintiff Independent Voters of Illinois at the time this action was instituted.

      . The figures on racial breakdowns were supplied by the Census Bureau subsequent to the drafting of the 1970 ordinance. The figures in brackets represent the number of wards in each category after the change ordered by the district court below.
      Percent black population Number of wards created with such percentage Singer map 1970map
      0-15% 27 28
      15-25 1 1
      25-35 3 3 [2]
      35-45 2 3
      45-50 1 0
      50-55 2 0 [2]
      55-65 2 1
      65-75 1 1
      75-85 1 2 [2]
      85-100 10 11_
      50 50 [50]

      . The comparisons are made with the 1970 map as enacted, and not as changed by the district court.

      . Most of the direct evidence of racial awareness and consideration was introduced at tlie first trial and is detailed in our first opinion. 466 F.2d at 830. Some is noted in our discussion of plaintiffs’ regional challenges, infra.

      . As a practical matter, it is difficult to determine the extent to which choices of boundaries within the region are the result of prior legitimate changes in boundaries outside the region, and the effect, if any, of changes within the region upon other subsequently drawn wards outside the region.

      . The plan adopted by the district court results in both the 7th and 8th wards having a majority of black residents, and, as it happens, would produce a total of 16 wards with such majority, as would the Singer map. Although the new 7th ward appears reasonably compact, the new 8tli ward appears to deviate from maximum compactness to a greater extent than did the 8th ward on the 1970 map.

      . The resolution refers to a portion of our opinion with respect to the population disparities which first became apparent after the 1971 election. 466 F.2d at 844.

      . The wards on the Bell-student map and in proceedings before the subcommittee were designated by letters rather than numbers. It is convenient, however, to refer to them by the number ultimately given to the ward containing most substantially the same area. This number is the same as the most substantially corresponding 1961 ward. The 1970 ward with a particular number almost always (and as a result of design) contains the residence of the alderman who represented the 1961 ward with the same number. As the changes in the map occur, the various wards are usually referred to as if there were a continuity in particular wards.

      . Part of census tract 5501 and all 5502 were added to the 10th.

      . The record does not reveal the exact boundaries of the ward as first drawn; therefore comparison is made only with the final form.

      b. Following Gaffney v. Cummings, 412 U.S. 735, 751-754, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), it is not clear which redistricting decisions designed to achieve political ends or to allocate political power are nonjusticiable. The Supreme Court has stated, however, that the “fact that ‘district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.’ Burns v. Richardson, 384 U.S. 73, 89 n. 16 [86 S.Ct. 1286, 1295, 16 L.Ed.2d 376] (1966). Cf. Gaffney v. Cummings, [412 U.S.) at 752 [93 S.Ct. 2321, 37 L.Ed.2d 298]; Taylor v. McKeithen, 407 U.S. 191 [92 S.Ct.1980, 32 L.Ed.2d 648] (1972).” White v. Weiser, 412 U.S. 783, 797, 93 S.Ct. 2348, 2353, 37 L.Ed.2d 335 (1973).

      . There was testimony only that Bell was aware of the general racial effects of the change in shape of the 7th ward.

      . The district court concluded that the 7th and 8th wards were drawn with the invidious purpose of minimizing black voting strength. In part the finding appears to be based on the difference in percentages of black residents between the 1961 7th and the student map 7th above noted, and in part on some switching of areas back and forth between the 7th and 8th, hereafter mentioned. The court found an absence of discriminatory purpose in the drafting of the Bell-student map. We agree. Because, however, the only substantial reduction in the percentage of black population between the 1961 and the 1970 7th wards occurred in the drafting of the Bell-student draft, the finding that the 7th ward was intentionally drawn to create a white majority ward instead of a black majority ward, is in conflict with the finding that there was no discriminatory purpose at that stage.

      b. The same approximate region is occup-pied by wards 6, 7, 8, 9, 10, 21 and 34, on the 1970 map and wards A, B, D, E, F, J, and K on the Singer map. On either map, there are four wards with a majority of black persons (6, 8, 21, and 34; I), E, J, and K), no wards with a substantial minori-tiff of black persons (35% to 50%), and three wards with less than 35% black population (7, 9, 10; A, B, F).

      . Specifically, at the first call tracts 4311 and 4312 (predominantly black) were in the 7th ward as were tracts 4603 and 4604 (predominantly white). Tract 4309 (predominantly black) was within the 7th ward. Alderman Keane next transferred 4604 into the 8th and 4309 into the 7th. Finally 4603 was transferred into the 8th. Keane apparently used an incorrect ward designation when describing this last transfer; although the census tracts being called were clearly in the 8t!i ward, designated O at the subcommittee proceedings, he explained he was about to redraw ward 21, designated N by the subcommittee.

      . Specifically, tract 4603 was shifted into the 7th and 4311 and 4312 into the 8th.

      . 4604 was moved from the 8th to the 7th and 4309 from the 7th to the 8th.

      . Tracts 4309, 4311, and 4312, when in the 7th formed a bulge to the west near the northern portion of the 7th, and tracts 4603 and 4604, when in the 8th, caused an appendage of that ward to jut into the center of the 7th and leave a relatively narrow waist at one point.

      . This action does not present the question whether this degree of reduction would be constitutionally cognizable where a plaintiff alleged that the value of his or her vote within a particular ward had been impaired by invidious racial gerrymandering of the boundaries of that ward. The plaintiffs here are not dissatisfied with the wards in which they live, but have standing because they belong to a group living in many wards whose voting strength is allegedly purposefully diluted. See 466 F.2d at 845.

      . See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

      . See 466 F.2d at 839.

      . Sheridan represented the 16tli ward under the 1961 districting plan. By 1970, his old ward had become approximately 80% black. Under the 1970 plan he resides in the 15th ward which is 91% white. (Sheridan ran in 1971 and was defeated.) Burke represented the 14th ward under the 1961 districting plan. By 1970, his old ward was approximately 80% white. Under the 1970 plan he resides within the 14th ward which is 93% white. (He ran and was reelected in 1971.)

      . On the Singer map the southeastern corner of the roughly corresponding region is occupied by ward N which is 92.6% black. AVard U, which incorporates part of ward 14 is only .9% black. AVard O, including part of ward 15 is 3.9% black. Ward H, including part of ward 15, the southwestern corner of ward 16, and a western sliver of ward 17, and the most eastern portion of ward 18, is 30% black. The incorporation of ward 18’s black population in ward H, however, leaves ward G, which includes the western portion of ward 18 with only .3% black population. In other words, there is only a shift in location of one 30% black minority ward; under the Singer map it is ward H, under the 1970 map, it is ward 18.

      . Of course, without any evidence of the extent of this shift, it is impossible to deduce what the black population was prior to the westward movement.

      . We note that plaintiffs’ failure to introduce statistics reflecting the Puerto Rican population of the Singer map wards prevents us from determining whether the Singer map provided wards with more substantial Puerto Rican minorities than the 1970 map.

      . Because of the absence of statistics in the record showing the Puerto Rican population of census tracts, this figure was derived by calculating the effect on the new 31st ward Puerto Rican population of deleting census tract 2425 and half of census tract 2426 and adding census tracts 2306 and 2313. Looking at the figures most favorably to plaintiffs, we assumed that the Puerto Rican population of tracts 2306 and 2313 is 0% although the record reveals only that it is below 10%.

      . The record enables us to calculate that assuming no other changes, deletion of census tract 2425 and part of census tract 2426 from ward 26 would decrease the Puerto Ri-can population from 20% to 17%.

      . We also note that despite plaintiffs’ contention otherwise it appears the district court did consider whether the wards were compact under Illinois law and concluded that the wards were sufficiently compact to satisfy state law. This finding is not clearly erroneous.

      . Because plaintiffs and defendants have come forward with extensive documentary and testimonial evidence from which the relevant inferences can be drawn, if plaintiffs’ argument is directed to shifting the burden of coming forward, it is of no merit at this stage of the proceedings.

      . In Kilgarlin v. Hill, the Supreme Court in a per curiam opinion affirmed the judgment of the district court insofar “as it held that appellants [plaintiffs] had not proved their allegations that [the state legislative reapportionment act] was a racial . . . gerrymander violating the Fourteenth Amendment [or] that it unconstitutionally deprived Negroes of their franchise.” 386 U.S. at 121, 87 S.Ct. at 821. It is clear from the opinion of the three-judge district court that the burden was allocated to plaintiffs to prove their allegations and that no “burden of justification” was placed on defendants. Kilgarlin v. Martin, 252 F.Supp. 404, 434-441 (S.D.Tex.1966).
      In Wright v. Rockefeller, the Supreme Court affirmed, accepting the findings of the majority of the three-judge district court that “appellants [plaintiffs] failed to prove that the New York Legislature was either motivated by racial considerations or in fact drew the districts on racial lines.” 376 U.S. at 56, 84 S.Ct. at 605.

      . In Sim.i the district court stated: “Testing the constitutionality of the reapportion- ■ ment Acts of the Legislature of Alabama by the foregoing standards, and after according to each all presumptions in favor of its constitutionality, we have concluded . . . ” 247 F.Supp. at 105. In Kilgarlin the district court indicated that “clear proof” is needed ' to establish that the “Legislature harbored the sinister design of racial discrimination.” 252 F.Supp. at 435. In Wright, the Supreme Court quoted and discussed without disapproval concurring District Judge Feinberg’s statement that “Plaintiffs have a difficult burden to meet in attacking the constitutionality of this state statute.” D.C., 211 F.Supp. 460 at 469; 376 U.S. at 55-57, 84 S.Ct. 603.