In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-2755 & 04-4009

ED H. SMITH, ALLAN STREETER,

DOROTHY TILLMAN, et al.,

Plaintiffs-Appellees,

v.

CITY OF CHICAGO,

Defendant-Appellant.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 94 C 920—Rebecca R. Pallmeyer, Judge.

____________

ARGUED SEPTEMBER 27, 2005—DECIDED AUGUST 7, 2006

____________

Before FLAUM, Chief Judge, and BAUER and SYKES,

Circuit Judges.

SYKES, Circuit Judge. This case is satellite litigation

emanating from the long-running legal battle over the

remapping of Chicago’s aldermanic wards following the

1990 census. Though it presents only a claim for

unreimbursed attorneys’ fees and related litigation expenses, it is dressed up in constitutional clothing. The

plaintiffs are Chicago aldermen who challenged the City’s

ward map in court and then claimed that the City’s refusal

to finance their legal expenses in that litigation violated

their equal protection and free speech rights.

Illinois law requires the City Council to redraw Chicago’s

aldermanic ward boundaries after each national census.
2 Nos. 04-2755 & 04-4009

The City’s attempt to create a new ward map after the 1990

census generated more than its share of federal litigation.

Chicago’s aldermen were divided (with a few exceptions)

into two opposing camps during the political struggle over

the new ward boundaries—the “Administration Aldermen,”

aligned with Mayor Richard M. Daley, and the “Opposition

Aldermen.” When the two sides could not agree, their

competing ward maps were submitted to Chicago’s voters

via referendum as required by state law. The map proposed

by the Administration Aldermen was adopted by voters and

became law.

The new map was challenged in several federal lawsuits,

and the two aldermanic factions lined up against each other

in the consolidated litigation. As the case progressed, the

City Council authorized payment of the litigation-related

attorneys’ fees and expenses of the Administration Aldermen who intervened to defend the map but not the Opposition Aldermen who sued to invalidate it. This decision

spawned the present lawsuit, in which the Opposition

Aldermen argued that this unequal treatment in the

payment of attorneys’ fees was unconstitutional. The suit

remained pending while the redistricting litigation proceeded to trial, appeal, remand for limited retrial, and

ultimately settlement. The Opposition Aldermen partially

prevailed and were awarded some $8 million in attorneys’

fees under the fee-shifting provisions of the Voting Rights

Act, 42 U.S.C. §§ 1988 and 1973l(e).

About $250,000 in litigation expenses, however, were not

included in the fee award, and those remaining unpaid

expenses are at issue in this action. The district court

granted summary judgment for the City on the free speech

claim. Following a bench trial on the equal protection claim,

the court concluded that the City’s decision to pay the

litigation expenses of the aldermen who defended the City’s

remap ordinance in court but not those who challenged it

failed the rational-basis test. The court was strongly
Nos. 04-2755 & 04-4009 3

influenced by an earlier decision of the City Council to pay

the litigation expenses of aldermen who sued the former

mayor in an unrelated set of lawsuits stemming from the

“Council Wars” of the mid-1980s. This, the court said,

required the City “live with [its] decisions and treat other

plaintiff-aldermen in like fashion.” The court awarded the

Opposition Aldermen their unreimbursed legal expenses

plus prejudgment interest.

We reverse. No fundamental right or suspect classification is implicated here, so the City’s action is reviewed only

for a rational relationship to a legitimate governmental

interest. This is a lenient standard, but the district court

failed to treat it as such. Defending the City’s ordinances

against legal challenge is unquestionably a legitimate

municipal interest, and it was entirely rational for the City

to pay the litigation expenses of the aldermen who intervened on the City’s side in defense of the duly adopted ward

map but not those of the aldermen who sued to invalidate

it. That the City Council authorized payment of legal

expenses for certain other plaintiff-aldermen in unrelated

litigation years earlier does not obligate the City to finance

all subsequent aldermanic litigation against it—by operation of the Equal Protection Clause or any other principle.

The City is thus not required to “live with” its prior decisions in the sense suggested by the district court.

The free speech clause of the First Amendment does not

provide an alternative basis upon which to uphold the

judgment. The government’s decision not to subsidize the

exercise of a constitutional right does not infringe the right.

This case does not involve viewpoint discrimination within

a government-sponsored speech forum or a generalized

subsidy program for private litigation. The City’s decision

not to underwrite the Opposition Aldermen’s legal challenge

to the ward map did not violate their free speech rights.
4 Nos. 04-2755 & 04-4009

I. Background

Illinois law provides that if the Chicago City Council fails

to pass a redistricting ordinance in the year that a national

census is conducted, proposed ordinances supported by at

least one-fifth of the aldermen may be submitted to the

electorate for a referendum vote. See 65 ILCS 20/21-38,

20/21-40 (2002). A referendum vote became necessary in the

remapping process that followed the 1990 census when the

so-called Administration Aldermen and Opposition Aldermen could not reach consensus on a new aldermanic ward

map. On March 17, 1992, the voters of Chicago approved

the ward map submitted by the Administration Aldermen,

and this map consequently achieved the status of a City

ordinance.

Three lawsuits challenging the validity of the redistricting ordinance followed closely on the heels of the referendum. In the first, Barnett v. Daley, nine voters alleged that

the map violated the Voting Rights Act; they named all 50

aldermen as defendants in the suit. The 50 aldermen were

dismissed as defendants at an early stage of the Barnett

litigation. The second suit, also alleging violations of the

Voting Rights Act, was brought by the Opposition Aldermen. In this case, Smith v. Daley, no aldermen were named

as defendants. The third suit, Bonilla v. City Council, was

brought by Latino voters and also did not name any aldermen as defendants. The Administration Aldermen were

permitted to intervene as defendants in all three cases for

purposes of defending the remap ordinance, and they

retained private legal counsel to represent them. The

Opposition Aldermen also retained private counsel for

purposes of pursuing their claims as the plaintiffs in Smith.

The City of Chicago and the mayor, also defendants in the

three cases, were represented by the office of the City

Corporation Counsel.

The three cases were consolidated for a 48-day bench

trial, and the district court entered judgment for the
Nos. 04-2755 & 04-4009 5

1 The fee award was initially $5 million; before the district court

in the present case, the parties stipulated that this amount was

increased by supplemental orders of the district court in

Smith/Barnett.

defendants on all claims. See Barnett v. City of Chi.,

969 F. Supp. 1359 (N.D. Ill. 1997). On appeal, this court

affirmed the judgment in Bonilla but, for reasons not

relevant here, vacated the judgments in Barnett and Smith

and remanded with directions for a limited retrial. Barnett

v. City of Chi., 141 F.3d 699, 706 (7th Cir. 1998). On

remand, the district court held that the Voting Rights Act

required a modification to the ward map ordinance to

incorporate an additional supermajority African-American

ward, and the parties entered into a consent decree modifying the ordinance in conformity with the district court’s

decision. See Barnett v. City of Chi., 17 F. Supp. 2d 753

(N.D. Ill. 1998). The district court ultimately awarded more

than $8 million in attorneys’ fees to the plaintiffs in the

Barnett and Smith cases as prevailing parties pursuant to

the fee-shifting provisions applicable to successful claims

under the Voting Rights Act, 42 U.S.C. §§ 1988 and

1973l(e). See Barnett v. City of Chi., 122 F. Supp. 2d 915

(N.D. Ill. 2000), aff’d 3 F. App’x 547 (7th Cir. 2001).1

 The

district court’s award of fees did not include $246,354.07

(primarily expert witness fees) that were incurred by the

Opposition Aldermen but were not recoverable under the

Voting Rights Act or other provisions. This amount is the

subject matter of the present case.

As the redistricting litigation made its way through the

federal courts for nearly a decade, the City paid the attorneys’ fees incurred by the Administration Aldermen. The

Opposition Aldermen’s request for payment of attorneys’

fees, however, was denied. Specifically, on February 12,

1993, Opposition Alderman Lawrence Bloom wrote to
6 Nos. 04-2755 & 04-4009

Administration Alderman Edward Burke, in Burke’s capacity as chairman of the City Council’s Committee on Finance,

requesting payment of legal fees on behalf of the Opposition

Aldermen. Alderman Burke denied the request, citing a

provision in the Chicago Municipal Code governing payment

of City officials’ attorneys’ fees:

In my opinion there is no basis in the Municipal Code

of the City of Chicago to authorize payment of [your]

legal fees. Section 2-152-170 of the Municipal Code

authorizes the payment of legal fees for City officials

when the action has been brought against them for

activities performed in the course of their employment.

This Section does not authorize the payment of legal

fees for those persons bringing the action. . . . If you

believe that there is any legal authority pursuant to

which the City of Chicago may pay [your] legal fees I

would welcome you to share this authority with me.

Alderman Burke reiterated his position in a second letter to

Alderman Bloom:

[S]ection 2-152-170 of the Municipal Ordinances authorizes the City of Chicago to appoint outside counsel to

defend an official or employee in an action or claim

brought against the employee or official. It is clear that

[your lawyer] is acting as the lead plaintiffs’ attorney in

this litigation. I have not found any language in the

Municipal Code to authorize the Committee on Finance

to pay the fees of outside lawyers hired to sue the City

of Chicago, its officials and employees.

In February 1994, the Opposition Aldermen filed this

action against the City of Chicago alleging that the City’s

refusal to pay their attorneys’ fees while simultaneously

paying the fees incurred by the Administration Aldermen

violated their free speech and equal protection rights under

the First and Fourteenth Amendments. The suit remained
Nos. 04-2755 & 04-4009 7

pending for the next eight years until the underlying

redistricting litigation reached its conclusion in 2001. In

January 2002, the City moved for summary judgment, and

the district court dismissed the free speech claim but

preserved the equal protection claim for trial. Following an

eight-day bench trial, the district court held that (1) the

Opposition Aldermen had been “treated differently because

of their membership in a group that opposed the Referendum Map espoused by the [C]ity,” (2) “the City applied § 2-

172-170 [the attorneys’ fees ordinance] unequally with

respect to Plaintiffs,” and (3) the City lacked a rational

basis for this difference in treatment. The court entered

judgment in favor of the Opposition Aldermen in the

amount of their previously unreimbursed litigation expenses, $246,354.07, plus an additional $168,956.24 in

prejudgment interest.

In reaching these conclusions, the district court relied

heavily on the fact that the City had, in unrelated litigation

predating the present dispute by nearly a decade, paid the

legal expenses of a group of aldermen (including Alderman

Burke) who sued Mayor Harold Washington and other city

officials during the turbulent “Council Wars” that followed

Washington’s election in 1983. See Roti v. Washington, 450

N.E.2d 465 (Ill. App. 1983) (“Roti I”); Roti v. Washington,

500 N.E.2d 463 (Ill. App. 1986) (“Roti II”). The Roti cases

arose out of a power struggle for control of the City Council

and tested the validity of certain resolutions adopted by

competing aldermanic factions regarding the organization

and operation of the Council. The City assumed payment of

attorneys’ fees for both sides in the Roti cases—including

Alderman Burke’s group, which had initiated the suits.

Burke, as chairman of the Finance Committee, authorized

the payment.

The district court held that given the City’s action in the

Roti cases, its reason for denying attorneys’ fees to the
8 Nos. 04-2755 & 04-4009

Opposition Aldermen in the redistricting case—that it

would not authorize payment of attorneys’ fees for officials

who sued the City—was “unavailing” as a rational basis.

The court declared that the City “must now live with” its

prior decisions and “treat other plaintiff-aldermen in like

fashion.”

II. Discussion

A. Equal Protection

We note at the outset that the equal protection claim

in this case suffers from a good deal of conceptual confusion;

the precise contours of the claim are at best fuzzy. The

district court held that the City, acting through Alderman

Burke, applied the attorneys’ fees ordinance

in a discriminatory manner in denying the Opposition

Aldermen’s request for attorneys’ fees. The ordinance in

question, Chicago Municipal Code § 2-152-170, authorizes

payment of attorneys’ fees for City officials and employees

when claims or actions are brought against them for their

on-the-job conduct. More specifically, § 2-152-170 provides,

in pertinent part:

If any claim or action . . . is instituted against a current

or former elected official, current or former appointed

official or current or former employee of the city of

Chicago . . . where such claim arises out of any act or

omission, made in good faith, occurring within the scope

of such person’s office or employment, the chairman of

the committee on finance of the city council, with the

approval and concurrence of the mayor, may at the

request of such person appoint counsel to defend such

person against any such claim or action.

On appeal, the Opposition Aldermen describe their

equal protection claim—and the district court’s holding—more broadly than the district court apparently viewed
Nos. 04-2755 & 04-4009 9

it. They characterize their claim as a challenge to the City’s

discriminatory application of its “funding ordinances” in

denying their request for attorneys’ fees in the redistricting

litigation. At oral argument, we asked counsel for the

Opposition Aldermen to identify which other “funding

ordinances”—beyond § 2-152-170—were at issue here; he

responded that Alderman Burke “wasn’t limited to [§] 2-

152-170,” but was not more specific. Following argument,

counsel moved “To Clarify or to Correct Statements Made

at Oral Argument” and identified certain numerical line

items in the City’s 1995 Annual Appropriations Ordinance

as the source of Alderman Burke’s authority to pay attorneys’ fees claims of city officials.

This broader characterization of the equal protection

claim appears to be on somewhat better footing than the

district court’s. The language of the attorneys’ fees ordinance plainly does not authorize payment of attorneys’ fees

for officials who sue the City. The ordinance by its terms is

limited to payment of attorneys’ fees for City officials or

employees in claims “instituted against” them for their jobrelated conduct. A strictly literal reading of this language

also appears to exclude payment of the Administration

Aldermen’s attorneys’ fees in the redistricting litigation, as

they intervened as defendants. It plausibly could be argued

that the ordinance, broadly construed, would allow payment

of the Administration Aldermen’s attorneys’ fees; as

defendant-intervenors, they were aligned with the City

officials against whom the redistricting claims were originally instituted. But even the most expansive interpretation

of § 2-152-170 would not encompass claims “instituted by”

elected officials against the City or its officers, and that

necessarily excludes the Opposition Aldermen’s request for

attorneys’ fees from the scope of the ordinance.

The ordinance on its face thus classifies City officials and

employees in a way that discriminates against the Opposition Aldermen: officials and employees who are sued in

their official capacities get their attorneys’ fees paid, but
10 Nos. 04-2755 & 04-4009

officials and employees who sue the City do not. But the

Opposition Aldermen have specifically disavowed any facial

constitutional challenge to § 2-152-170; they have characterized their claim as an “as applied” challenge to the City’s

unequal enforcement of its “funding ordinances,” presumably including § 2-152-170. The district court treated the

actual terms of § 2-152-170 as unimportant for purposes of

equal protection analysis: “Regardless of the ordinance’s

‘proper’ interpretation,” the court said, “the City, which

voluntarily chose to reimburse the Roti aldermen notwithstanding their status as plaintiffs . . . must now live with

those decisions and treat other plaintiff-aldermen in like

fashion.”

We cannot agree. First, the proper interpretation of a

statute is hardly irrelevant to a determination of the

statute’s constitutionality, either on its face or as applied. “There can be little doubt that [the question of]

whether a statute is constitutional fairly includes the

question of what the statute says.” Rumsfeld v. Forum for

Academic & Institutional Rights, Inc., 126 S. Ct. 1297, 1305

(2006). Second, a prior misapplication of the ordinance—if

that’s what occurred in the Roti cases—does not estop the

City from applying it correctly in a subsequent case. The

Equal Protection Clause does not entitle the Opposition

Aldermen to a misinterpretation of the ordinance. Because

§ 2-152-170 does not authorize payment of their attorneys’

fees, the district court’s conclusion that the City applied the

ordinance “unequally with respect to Plaintiffs” is legally

untenable. So there must be some other basis for the equal

protection claim apart from an “as applied” challenge to the

attorneys’ fees ordinance.

The alternative conceptualization of the claim offered

up by the Opposition Aldermen has its own deficiencies. In

their brief they argued that the district court “correctly

found” the City had no rational basis for its “inconsistent

application of its funding ordinances”—apparently not just
Nos. 04-2755 & 04-4009 11

§ 2-152-170 but other, unspecified funding ordinances as

well. This overstates the district court’s holding, at least as

the court purported to limit it. In a footnote to the Memorandum Opinion and Order filed following the bench trial,

the court specifically noted that although the “[p]laintiffs

have offered some evidence that the City paid the legal

expenses . . . from sources besides § 2-172-150,” the court

was confining its analysis to § 2-152-170. At the same time,

however, the district court’s opinion assumes the existence

of authority to pay aldermen’s attorneys’ fees apart from

that conferred by § 2-152-170; that much is implicit in the

court’s holding that the City had no rational basis to deny

the Opposition Aldermen’s request for fees while granting

the requests of other aldermen who would arguably be

excluded from the scope of the ordinance. Also, the opinion

variously uses the plural “fee payment ordinances” or

generically, “ordinances.” Given the internal confusion, we

will give the district court’s holding the broader interpretation the Opposition Aldermen ascribe to it.

The Opposition Aldermen did not identify—in their brief

anyway—the other “funding ordinances” they claim the City

inconsistently applied. As we have noted, after oral argument counsel identified the 1995 Annual Appropriations

Ordinance as the other “funding ordinance” at issue in the

case. Although the district court did not rely on it, it is in

the record. The specific line items counsel identifies appear

to be general funds restricted only by the following language: “for legal, technical, medical and professional

services . . . to be expended at the direction of the chairman

of the committee on finance.” It appears we are being asked

to assume that the other Annual Appropriations Ordinances

covering the nine-year duration of the redistricting litigation contain similar line items and language. (We note as an

aside that this court has previously described the extreme

“protraction” of the redistricting litigation as “absurd.”

Barnett, 141 F.3d at 706.)
12 Nos. 04-2755 & 04-4009

2 Responsibility for the conceptual confusion in this case rests

squarely with the Opposition Aldermen, who as plaintiffs had

the burden of proof. Given the lack of clarity in their articulation of the fundamentals of their equal protection claim, the

internal confusion in the district court’s opinion is perhaps

understandable. On appeal, the City has not challenged the

district court’s factual findings but raises only legal error in the

application of rational-basis review. We review legal issues

de novo, and that has required us to reset the claim in the proper

conceptual framework.

As best we can understand it, then, the equal protection

violation at issue in this case can be summarized as follows:

Without regard to § 2-152-170, the Finance Chairman has

discretion to pay, from a generally unrestricted legal and

professional services fund in the Annual Appropriations

Ordinance, the litigation-related attorneys’ fees incurred by

City officials; Alderman Burke exercised that discretion in

a discriminatory fashion in disallowing the Opposition

Aldermen’s request for payment of attorneys’ fees while

authorizing payment of the Administration Aldermen’s

attorneys’ fees; there is no rational basis for the discriminatory treatment. With that recapitulation of the claim, we

proceed at last to the issues on appeal.2

The purpose of the Equal Protection Clause of the

Fourteenth Amendment is to “secure every person within

the State’s jurisdiction against intentional and arbitrary

discrimination, whether occasioned by express terms of a

statute or by its improper execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562,

564 (2000) (per curiam) (quoting Sioux City Bridge Co. v.

Dakota County, 260 U.S. 441, 445 (1923)); Martin v.

Shawano-Gresham Sch. Dist., 295 F.3d 701, 713-14 (7th

Cir. 2002). Where (as here) no fundamental right or suspect

classification is at issue, equal protection claims are

evaluated under the rational-basis standard of review.
Nos. 04-2755 & 04-4009 13

Discovery House, Inc. v. Consol. City of Indianapolis, 319

F.3d 277, 282 (7th Cir. 2003); Martin, 295 F.3d at 712;

Hilton v. City of Wheeling, 209 F.3d 1005, 1007-08 (7th Cir.

2000). To prevail, a plaintiff must prove the following: (1)

the defendant intentionally treated him differently from

others similarly situated, (2) the defendant intentionally

treated him differently because of his membership in the

class to which he belonged, and (3) the difference in treatment was not rationally related to a legitimate state

interest. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946,

950-51 (7th Cir. 2002); Discovery House, 319 F.3d at 282.

The district court held that the Opposition Aldermen

satisfied all three elements of this test. More specifically,

the court held that the City discriminated against the

Opposition Aldermen in their request for payment of

attorneys’ fees in the redistricting litigation “because of

their membership in a group that opposed the Referendum

Map espoused by the City” and that there was no rational

basis for the discriminatory treatment. On appeal, the City

concedes the first two elements and focuses its argument on

the district court’s application of the rational-basis test.

We pause here to note that in the district court, the

parties vigorously disputed how the rational-basis test

should be applied where the equal protection claim is not a

facial attack on a statute but, rather, an “as applied”

challenge, or more accurately here, a challenge to a decision

of a government official acting pursuant to discretionary

authority. The Opposition Aldermen argued in favor of an

approach resembling the burden-shifting paradigm in Title

VII employment discrimination litigation under McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Their position

was that in a nonfacial equal protection challenge, evidence

that the government’s reason for decision was pretextual

can establish the claim. The district court properly rejected

this argument. This court has declined previous invitations

to import Title VII methodology into traditional rational-
14 Nos. 04-2755 & 04-4009

basis equal protection analysis, see Schroeder, 282 F.3d at

951, and we are not inclined to revisit the issue here.

Aside from rejecting the Title VII approach, however, the

district court did not definitively resolve the parties’ dispute

over the proper application of the rational-basis test.

Instead, the court engaged in a heavily fact-bound analysis

of the City’s actions and subjected the City’s fees payment decision to a degree of independent judicial appraisal that is inconsistent with the deferential rationalbasis standard of review.

The City asserts it was error for the district court to

permit any inquiry at all into the actual motivation for the

City’s payment decision. Because a governmental classification “must be upheld against equal protection challenge if

there is any reasonably conceivable state of facts that could

supply a rational basis for the classification,” Heller v. Doe,

509 U.S. 312, 320 (1993) (emphasis added), the Supreme

Court has held that the rational-basis test “is not subject to

courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v.

Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993). The City

argues that the rational-basis test is not an evidentiary

inquiry into the government’s true motives at the time of

the challenged action, but, rather, a post hoc legal inquiry

into whether there is any conceivable rational reason for the

government’s decision. The Opposition Aldermen counter

that the City’s version of the rational-basis test applies only

to facial equal protection challenges, and theirs is an “as

applied” challenge. As such, they argue, the focus is properly on evidence of the City’s actual (discriminatory) reason

for the fees payment decision.

The City is mostly right. To the extent the Opposition

Aldermen insist the focus should be on evidence of discriminatory purpose, their argument is simply misplaced. The

City has conceded that it treated the Opposition Aldermen
Nos. 04-2755 & 04-4009 15

differently because of their membership in a group that

opposed the City’s remap ordinance; the only disputed

question is whether that discriminatory treatment had a

rational basis. The rational-basis test is a lenient standard;

the government’s action simply “cannot run afoul of the

Equal Protection Clause if there is a rational relationship

between the disparity of treatment and some legitimate

governmental purpose.” Discovery House, 319 F.3d at 282

(quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,

367 (2001)) (emphasis added). The government need not

have articulated a reason for the challenged action at the

time the decision was made. Discovery House, 319 F.3d at

282. Rather, “the burden is upon the challenging party to

eliminate any ‘reasonably conceivable state of facts that

could provide a rational basis for the classification.’ ” Id.

(citing Heller, 509 U.S. at 320). This basic formulation

applies whether the plaintiff challenges a statute on its

face, as applied, or (as here) challenges some other act or

decision of government. Id.; see also Bell v. Duperrault, 367

F.3d 703, 708 (7th Cir. 2004); Schroeder, 282 F.3d at 950-

51; Martin, 295 F.3d at 712-13; Hilton, 209 F.3d at 1007-08;

Olech v. Vill. of Willowbrook, 160 F.3d 386, 388 (7th Cir.

1998), aff’d, 528 U.S. 562 (2000) (per curiam); Esmail v.

Macrane, 53 F.3d 176, 180 (7th Cir. 1995).

This is not to say that evidence of the government’s actual

reason for decision is always irrelevant in equal protection

cases, however. It is the plaintiff’s burden to prove the

government’s action irrational. The government may defend

the rationality of its action on any ground it can muster, not

just the one articulated at the time of decision (if a reason

was given at all.) Our various departments and agencies of

government make thousands of decisions every day; not

every one will come with an explanation. The absence of an

explanation, or even an incomplete, inadequate, or inaccurate explanation will not equate to a lack of rational

basis—otherwise “the federal courts would be drawn deep
16 Nos. 04-2755 & 04-4009

into the local enforcement of . . . state and local laws.”

Hilton, 209 F.3d at 1008. Accordingly, the reason stated at

the time of the challenged action may be relevant but is not

dispositive in the application of rationality review.

We note that the role of subjective motivation in “class of

one” equal protection cases is uncertain. Some of our cases

hold that a determination of “no rational basis” in “class of

one” cases requires proof of “totally illegitimate animus

toward the plaintiff by the defendant” or illegitimate

reasons “of a personal nature unrelated to the duties of the

defendant’s position.” Id.; see also Purze v. Vill. of Winthrop

Harbor, 286 F.3d 452, 455 (7th Cir. 2002); Cruz v. Town of

Cicero, 275 F.3d 579, 587 (7th Cir. 2001); Esmail, 53 F.3d at

180. Other cases use the disjunctive and refer to “class of

one” cases as requiring no rational basis or proof of illegitimate animus. See Lunini v. Grayeb, 395 F.3d 761, 768 (7th

Cir. 2004); Nevel v. Vill. of Schaumburg, 297 F.3d 673, 681

(7th Cir. 2002); Albiero v. City of Kankakee, 246 F.3d 927,

932 (7th Cir. 2001). Still others have noted but not resolved

the conflict. See Ind. Land Co. v. City of Greenwood, 378

F.3d 705, 713 (7th Cir. 2004); McDonald v. Vill. of

Winnetka, 371 F.3d 992, 1002 n.3 (7th Cir. 2004); Bell, 367

F.3d at 708 n.1.

This is not an “illegitimate animus” equal protection case.

The Opposition Aldermen do not argue that Alderman

Burke’s decision was based on some subjective illegitimate

reason, so we need not attempt to reconcile the “class of

one” cases here. The burden was on the Opposition Aldermen to eliminate any conceivable rational basis for the

City’s attorneys’ fees decision—not just the basis offered by

Alderman Burke at the time of the denial, but those offered

by the City in defense of this litigation.

The City argues that a municipality has a legitimate

interest in defending the validity of its ordinances against

legal challenge; the Opposition Aldermen do not really

debate this proposition. The City also argues that it is
Nos. 04-2755 & 04-4009 17

entirely rational for a municipality to decline to subsidize

litigation that seeks to invalidate a duly enacted ordinance,

even when those seeking the invalidation are some of its

own elected officials. We agree. However contentious and

divided the City Council may have been during the process

leading up to the referendum, once the referendum was

held, the City had a remapping ordinance on the books.

That law, and the defense of its legality, became the official

position of the City of Chicago and its governing body. The

City was entitled to subsidize the litigation position of the

aldermen who were defending the remap ordinance without

also subsidizing the aldermen who sought to invalidate it.

This is essentially consistent with the reason Alderman

Burke gave for denying the Opposition Aldermen’s request

for attorneys’ fees; although he cited the attorneys’ fees

ordinance, the underlying rationale was that the City did

not elect to finance litigation against itself. No doubt

politics also factored in, or predominated; that does not

make an otherwise rational decision irrational or render

a legitimate government interest illegitimate.

“The guarantee of equal protection . . . is not a source of

substantive rights or liberties, but rather a right to be free

from invidious discrimination in statutory classifications

and other governmental activity.” Harris v. McRae, 448 U.S.

297, 322 (1980). Decisions about which activities should

receive government subsidies and which should not are

matters of policy and discretion and are especially inappropriate for judicial second-guessing under rational-basis

review. See Regan v. Taxation with Representation of Wash.,

461 U.S. 540, 549 (1983) (granting tax exemptions to

nonprofit veterans’ lobbying organizations while denying

tax exemptions to all other nonprofit lobbying organizations

does not violate equal protection rights of nonexempt

lobbying organization); Harris, 448 U.S. at 326 (upholding

Hyde Amendment against constitutional challenge in which

it was argued, inter alia, that Medicaid’s provision of
18 Nos. 04-2755 & 04-4009

medical subsidies to indigent women who carry their

pregnancies to term but not those who undergo abortions

violated equal protection).

Accordingly, the City’s decision to deny the Opposition

Aldermen’s request for attorneys’ fees while granting the

request of the Administration Aldermen was rationally

related to and furthered the City’s legitimate interest

in defending the legality of its remap ordinance. The only

real dispute here is whether the City is precluded from

relying on this rationale because it failed to adhere to it

in the past, when the City paid the attorneys’ fees for

Alderman Burke’s group of plaintiff-aldermen in the Roti

cases. This was the core of the district court’s holding: that

the City must “live with” this prior decision and confer the

same benefit (forever, apparently) on other aldermen who

sue the City. This proposition is profound and, to our

knowledge, without precedent. As a rule of law, it translates

to this: the government is prohibited, in perpetuity, from

defending itself against an equal protection challenge based

on an otherwise legitimate and rational justification simply

because that justification was not observed in a prior

unrelated action.

Such a rule would wreak havoc on the orderly operation

of government. We find no support for the proposition that

the Equal Protection Clause so rigidly limits or “locks in”

the government’s decisionmaking discretion in this way.

Government does not lose the right to enforce a legitimate

and rational distinction by virtue of not having enforced

that distinction in an unrelated matter years earlier. The

City’s decision to pay the attorneys’ fees of Alderman

Burke’s group of plaintiff-aldermen in the Roti cases in the

mid-1980s does not foreclose the City from defending

against the present equal protection claim on the basis of

the perfectly rational distinction between aldermanic

litigation in defense of the City’s duly adopted remap

ordinance and aldermanic litigation attacking it.
Nos. 04-2755 & 04-4009 19

To the extent the district court’s decision is premised not

on the difference in treatment between the Opposition

Aldermen and the Administration Aldermen in the redistricting litigation but the difference in treatment between

the Opposition Aldermen and the plaintiff-aldermen in the

Roti cases (a possible alternative reading), the City argues

that the difference was rationally justified by distinctions in

time, political circumstances, and the nature and goals of

the litigation. The “Council Wars” that gave rise to the Roti

cases were characterized by infighting among two aldermanic factions competing for control of the City Council

following the election of Mayor Washington as the City’s

first black mayor. The first of the Roti cases concerned the

validity of certain resolutions regarding the operation and

organization of the City Council during the political and

legal turmoil that surrounded the redistricting of Chicago’s

aldermanic wards after the 1980 census. The resolutions

were adopted in a chaotic episode in which the mayor

convened a Council meeting but then immediately purported to adjourn it. Roti I, 450 N.E.2d at 467. The mayor

and the 21 aldermen loyal to him then left the Council

chambers, but 29 aldermen remained and adopted a

number of resolutions pertaining to the number of standing

committees, committee assignments, and other organizational changes. The mayor then vetoed some of the resolutions.

The group of 29 aldermen quickly went to Illinois state

court seeking a declaration that the resolutions had been

lawfully adopted. The mayor responded with a suit of his

own seeking to enjoin implementation of the resolutions.

The lawsuits were consolidated and the 21 aldermen

aligned with the mayor intervened on his side. The Illinois

court held that the resolutions were validly adopted because

the mayor’s attempt to adjourn the Council meeting was

invalid, as were his vetoes; the state appellate court

affirmed. Id. at 472-76. The second of the Roti cases was
20 Nos. 04-2755 & 04-4009

essentially the reverse of the first; it concerned the validity

of a new resolution that reorganized the City Council once

again after the conclusion of the redistricting litigation

produced an even 25-25 split among the aldermen. Roti II,

500 N.E.2d at 464-65. The former aldermanic group of 29

(now reduced to 25) filed a declaratory judgment action in

state court alleging that the new organizational resolution

was improperly promulgated. The Illinois court held the

resolution was validly adopted, and the state appellate

court affirmed. Id. at 468.

The City suggests that the extraordinary political circumstances of the “Council Wars” and the legal exigent circumstances of the Roti cases provide a rational basis for the

difference in treatment of the plaintiff-aldermen there and

the plaintiff-aldermen here. We agree. The Roti cases raised

the question of whether the City Council was validly

organized and operating; the City had a legitimate and

urgent interest in an authoritative legal determination of

this question so the power struggle would not paralyze the

affairs of municipal government or call into question the

legitimacy of subsequent actions taken by the Council.

Payment of both sides’ attorneys’ fees furthered that

interest. On the other hand, the redistricting litigation of

the 1990s did not threaten the very operation of the City

Council or the legitimacy of its actions. There was no

question that the remap ordinance had been validly adopted

in the referendum vote and was law, and the City therefore

had a legitimate interest in defending it against legal

challenge. Declining to subsidize the aldermen who sued to

invalidate the ordinance furthered that interest. The

difference in treatment between the two groups of plaintiffaldermen was not irrational.

At bottom, the Opposition Aldermen are complaining

about what they perceive to be political gamesmanship, but

political gamesmanship—if that’s what Alderman Burke

was up to—does not work an equal protection violation
Nos. 04-2755 & 04-4009 21

unless the resulting decision lacks any rational basis. Even

in “illegitimate animus” equal protection cases, “if the

government would have taken the action anyway [absent

the animus], the animus will not condemn the action.”

Nevel, 297 F.3d at 681; see also Albiero, 246 F.3d at 932;

Olech, 160 F.3d at 388.

“The problems of government are practical ones and they

may justify, if they do not require, rough accommodations,—illogical, it may be, and unscientific.” Metropolis

Theater Co. v. City of Chi., 228 U.S. 61, 69-70 (1913). The

rational-basis test is deferential to the decisions of government, but the district court applied it as if it were a

more exacting standard, insisting on a degree of consistency

that the Equal Protection Clause does not require. “Mere

errors of government are not subject to our judicial review.

It is only palpably arbitrary exercises which can be declared

void under the 14th Amendment.” Id. at 70. The City’s

refusal to pay the legal expenses of the Opposition Aldermen as plaintiffs in the redistricting litigation was rationally related to the City’s legitimate interest in defending

the legality of its ordinances; there was no equal protection

violation here.

B. First Amendment Claim

The First Amendment does not provide an alternative

basis upon which to uphold the judgment. In their free

speech claim, the Opposition Aldermen asserted that the

City engaged in viewpoint discrimination by refusing to pay

their attorneys’ fees in the redistricting litigation while

agreeing to pay those of the Administration Aldermen. The

district court properly rejected this argument. It is wellestablished that the government’s “decision not to subsidize

the exercise of a fundamental right does not infringe the

right.” Regan, 461 U.S. at 549. The Supreme Court has
22 Nos. 04-2755 & 04-4009

“soundly rejected” the proposition that “if the government

chooses to subsidize one protected right, it must subsidize

analogous counterpart rights.” Rust v. Sullivan, 500 U.S.

173, 194 (1991).

As “we have repeated many times, the Constitution,

insofar as it creates or protects liberties, is . . . a charter of

negative liberties.” Hilton, 209 F.3d at 1007 (emphasis

in original). As such, “[t]here is a basic difference between direct state interference with a protected activity and

state encouragement of an alternative activity consonant

with legislative policy.” Maher v. Roe, 432 U.S. 464, 475

(1977). The Constitution “does not confer an entitlement to

such funds as may be necessary to realize all the advantages of ” a constitutional right. Harris, 448 U.S. at 318.

“[A]lthough government may not place obstacles in the path

of a [person’s] exercise of . . . freedom of [speech], it need not

remove those not of its making.” Regan, 461 U.S. at 550-51

(quoting Harris, 448 U.S. at 316).

The Opposition Aldermen rely on Rosenberger v. Rector

and Visitors of University Of Virginia, 515 U.S. 819 (1995),

and Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001),

but neither case is applicable here. Rosenberger involved

the question of viewpoint discrimination within a speech

forum created by a student organization fund established by

a public university to encourage a diversity of views from

private speakers. Rosenberger, 515 U.S. at 834. Velazquez

involved a First Amendment challenge to a particular

advocacy restriction in the federal subsidy program that

established the Legal Services Corporation to provide

funding for indigents’ private civil litigation. Velazquez, 531

U.S. at 536.

This case involves neither a City-created speech forum

nor a generalized City subsidy program for private litigation. Rather, the City agreed to pay the litigation expenses

of the aldermen who entered the redistricting litigation in
Nos. 04-2755 & 04-4009 23

defense of the City’s remap ordinance. The positions of the

City and the Administration Aldermen were thus aligned in

the redistricting litigation, and in that sense, the Administration Aldermen’s “speech” was the City’s “speech.” The

government “speaks” when it acts to “promote its own

policies or to advance a particular idea.” Id. at 541.

The Administration Aldermen’s defense of the legality

of the remap ordinance plainly promoted the City’s policy;

the Opposition Aldermen’s legal attack on the ordinance did

not. Velazquez reiterated that “viewpoint-based funding

decisions can be sustained in instances in which the

government is itself the speaker.” Id. Rosenberger and

Velazquez do not support the Opposition Aldermen’s free

speech claim. Rust, Regan, Harris, and Maher foreclose it.

The judgment of the district court is REVERSED and the

case is REMANDED for entry of judgment for the City of

Chicago.
24 Nos. 04-2755 & 04-4009

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-7-06