Ryan v. State Bd. of Elections of State of Ill.

• Citation: 661 F.2d 1130
• Decision Date: 08 October 1981
• Docket Number: Nos. 81-2122,81-2394,s. 81-2122
• Parties: George H. RYAN, etc., et al., Plaintiffs-Appellants, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants-Appellees. Earl Neil OTTO, Plaintiff-Appellee, v. The STATE BOARD OF ELECTIONS, Ronald D. Michaelson, Executive Director, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1130

661 F.2d 1130

George H. RYAN, etc., et al., Plaintiffs-Appellants, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et

al., Defendants-Appellees.

Earl Neil OTTO, Plaintiff-Appellee, v. The STATE BOARD OF ELECTIONS, Ronald D. Michaelson, Executive Director, et al., Defendants-Appellants.

Nos. 81-2122, 81-2394.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1981.

Decided Oct. 5, 1981.

Rehearing Denied Oct. 8, 1981.

James P. Chapman, Chicago, Ill., for plaintiffs-appellants.

Thomas N. Todd, Daniel M. Harris, Chicago, Ill., for defendants-appellants.

William J. Harte, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and BAUER, Circuit Judge.

SWYGERT, Senior Circuit Judge.

This consolidated appeal involves two cases: Ryan v. State Board of Elections, No. 81 C 3915, filed in the United States District Court for the Northern District of Illinois, and Otto v. Stanley Kusper, No. 81 C 4103, filed initially in the Circuit Court of Cook County, Illinois, and then removed to the same federal district court. Both suits assert the unconstitutionality of the present Illinois congressional districts and seek identical injunctive and declaratory relief. The appeal involves two issues: (1) whether the district court acted properly in remanding the Otto case on the discretionary ground of abstention and (2) whether the district court acted properly by abstaining from hearing the Ryan case after refusing to have a court of three judges convened. We hold that the district court lacked authority to remand the properly removed Otto case; moreover, a three-judge court should be convened to entertain both suits.

I

The 1980 federal census requires reapportionment of the United States congressional districts for the State of Illinois. Illinois now has twenty-four congressional districts, but the 1980 census entitles the state only to twenty-two. Furthermore, because of population shifts during the 1970's, the present congressional districts now contain unequal numbers of people.

Based upon the census report, it was the duty of the General Assembly of the State of Illinois, ¹ to enact a constitutional reapportionment plan for the Illinois congressional districts. On July 2, 1981 the Illinois General Assembly adjourned having failed to adopt any reapportionment plan.

On June 30, 1981, the Otto suit was filed in the Circuit Court of Cook County, Illinois, challenging the constitutionality of the current congressional map in light of the 1980 census. On July 10, 1981, the Ryan suit was filed in federal district court, likewise challenging the constitutionality of the current congressional map. No court has considered, much less ruled upon, the merits of either case.

On July 13, the Ryan plaintiffs filed a motion in federal district court to refer the case to the chief judge of this court for the convening of a three-judge court pursuant to 28 U.S.C. § 2284(a). They also sought preliminarily to enjoin the defendants from proceeding in the Otto case. The court denied both motions as well as an oral motion to reconsider. The Ryan plaintiffs filed notice of appeal to this court on July 13, 1981.

On July 20, 1981, the Attorney General of Illinois removed the Otto case to the Northern District of Illinois pursuant to 28 U.S.C. § 1441. On August 7, the Otto plaintiff filed a motion to remand to the Circuit Court of Cook County. This motion was fully briefed with the Ryan plaintiffs participating as friends of the court. On August 18, the district court granted the motion. The court stayed its remand order, however, pending the outcome of any appeal from it or the Ryan case.

On August 20, 1981, the district court certified for immediate appeal to this court the questions: (1) whether the doctrine of abstention applies to the Otto case; and (2) whether the district court could remand Otto on the discretionary ground of abstention. The Otto defendants filed their petition for leave to appeal on August 21. This court granted the petition on August 25 and consolidated the appeals.

II

Remand of a suit after its removal to federal court is controlled by 28 U.S.C. § 1447(c). ² No other statutory provision allows remand.

The leading Supreme Court case on permissible grounds for remanding cases after removal to a federal court is Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). In Thermtron the district court had remanded a removed action in the exercise of its discretion because of docket congestion. The Sixth Circuit denied the defendant's petition to mandamus the district judge to retain the case. The Supreme Court reversed and held the remand order improper. The Court noted that the remand was based on discretionary reasons and not on any ground stated in 28 U.S.C. § 1447(c):

(The district court) did not purport to proceed on the basis that this case had been removed improvidently and without jurisdiction. Neither the propriety of the removal nor the jurisdiction of the court was questioned by (the district court) in the slightest. Section 1447(c) was not even mentioned. Instead, the District Court's order was based on grounds wholly different from those upon which § 1447(c) permits remand....

423 U.S. at 343-44, 96 S.Ct. at 589. The Court approvingly cited the uniform rule of lower federal courts "that cases properly removed from state to federal court within the federal court's jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute," id. at 345 n. 9, 96 S.Ct. at 590 n. 9.

In Otto, the district court remanded a properly removed action for a discretionary reason not authorized by 28 U.S.C. § 1447(c). The district court did not hold that it lacked jurisdiction. ³ The only other permissible ground for remand is improvident removal. "(A) district court may remand a case as being 'improvidently' removed only if one of the statutory, non-jurisdictional requirements for removal has not been satisfied." In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642, 647 n. 8 (5th Cir. 1978). See Note, Remand Order Review After Thermtron Products, 1977 U.Ill.L. Forum 1086, 1092-93 (legislative history of section 1447(c) shows that "improvidently" means legally defective). In Otto, the district court found that the statutory, non-jurisdictional requirements for removal had been satisfied. Memorandum Opinion and Order, August 18, 1981 at 2.

Otto disagrees with the district court's finding that there were no non-jurisdictional defects in the removal petition. First, he asserts that the Illinois Attorney General lacks the authority to file a removal petition on behalf of the State Board of Elections and its members. The district court properly rejected this argument.

(T)he record (does not) reveal any indication that the Board disagrees with the actions of General Fahner, and, further, it is settled as a matter of Illinois law that the Attorney General is the sole officer who may conduct litigation in which the people of the State of Illinois are the real parties in interest. People ex rel. Scott v. Briceland, 65 Ill.2d 485, 3 Ill.Dec. 739, 359 N.E.2d 149 (1976).

Memorandum Opinion and Order, August 18, 1981 at 2-3.

Second, Otto asserts that the removal petition is defective because Stanley Kusper, the Cook County Clerk, did not join in the petition. The district court correctly held that Kusper was a nominal defendant and his joinder in the removal petition was not necessary. Memorandum Opinion and Order, August 18, 1981 at 2. "(O)nly indispensable defendants are required to join in the petition for removal; the consent of nominal or formal parties is not necessary." First National Bank of Chicago v. Mottola, 302 F.Supp. 785, 790-91 (N.D.Ill.1969), aff'd, First National Bank of Chicago v. Ettilinger, 465 F.2d 343, 345 (7th Cir. 1972). The duty of supervising the administration of the election laws throughout Illinois belongs to the State Board of Elections. Ill.Rev.Stat. ch. 46, § 1A-8(11), P.A. 78-918 § 1. Kusper's duties are confined to Cook County and are purely ministerial. See Harman v. Forssenius, 380 U.S. 528, 538 n. 14, 85 S.Ct. 1177, 1184 n. 14, 14 L.Ed.2d 50 (1965), (in suit challenging constitutionality of state election laws, only State Board of Elections, not local registrars, were indispensable parties).

Otto also argues that remand was proper on discretionary grounds. The two cases he cites, however, are distinguishable. In Manas y Pineiro v. Chase Manhattan Bank, 443 F.Supp. 418 (S.D.N.Y.1978), the removal petition was untimely, but the plaintiff failed to object. Because untimeliness is not a jurisdictional defect, the issue was whether the plaintiff waived its right to object. In that context the district court weighed considerations of judicial economy, comity, and prejudice to determine whether to remand the case. Id. at 421. In Soam Corp. v. Trane Co., 506 F.Supp. 302 (S.D.N.Y.1980), the action was removed to federal court on the basis of diversity. The plaintiff then amended his complaint to add non-diverse defendants. The district court treated the amendment as part of the original complaint (pursuant to Rule 15(c) of the Federal Rules of Civil Procedure) and held the case improvidently removed because diversity jurisdiction was lost prior to final judgment. In Otto, however, the petition for removal met all non-jurisdictional requirements. There was no occasion to weigh discretionary factors to decide whether to excuse a technical, non-jurisdictional defect.

Abstention is a judicially-created doctrine; its application is discretionary. Under Thermtron a federal court with jurisdiction over a removed case may not remand it on discretionary grounds. Congress never intended "to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but...