Briscoe v. Kusper
| Citation | 435 F.2d 1046 |
| Decision Date | 22 January 1971 |
| Docket Number | No. 18390.,18390. |
| Parties | Robert BRISCOE et al., Plaintiffs-Appellants, v. Stanley T. KUSPER, Jr., et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
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David Long, Harry Golter, Brian Meltzer, Chicago, Ill., for plaintiffs-appellants.
William R. Ming, Jr., Sophia H. Hall, Chicago, Ill., for defendants-appellees.
Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
Twelve of forty-six candidates barred from the ballots in the 1967 Chicago aldermanic election and nineteen registered voters who signed their nominating petitions filed this class action against the members of the Board of Election Commissioners of the City of Chicago. The action was predicated on the Civil Rights Act (42 U.S.C. § 1983) on the ground that plaintiffs had been deprived of rights, privileges or immunities secured by the Constitution. In its present posture, the gravamen of the amended complaint is that in refusing to place the names of these candidates on aldermanic ballots, defendants employed procedures denying plaintiffs due process and equal protection of the laws, as guaranteed by the Fourteenth Amendment.
Count I of the amended complaint sought declaratory and injunctive relief. Plaintiffs moved for the convention of a three-judge panel pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284 to consider their constitutional objections to the Illinois Election Code. Ill.Rev.Stats. 1969, Ch. 46, § 10-1 et seq. The district court held that there was no substantial constitutional question and therefore denied the motion pursuant to the rule of Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152. Plaintiffs no longer seek injunctive relief against enforcement of any state law, and the matter is properly before this Court for consideration of the requested declaratory judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155, 83 S.Ct. 554, 9 L.Ed. 2d 644. Count II sought $100,000 damages for each plaintiff.
Count I received a 3-day bench trial at which the district court also considered prior testimony taken on plaintiffs' unsuccessful motion for a preliminary injunction, the depositions filed, and the uncontested facts contained in the pretrial order. At the close of plaintiffs' case, the court granted defendants' motion for findings and judgment in their behalf under Count I. The district court found that defendants' procedures violated neither the equal protection nor due process clauses of the Fourteenth Amendment. Summary judgment was granted for defendants under Count II, on the ground that "because of their official position they defendants are immune from actions for damages on account of their official acts."
In order to resolve the contentions of the parties, it is necessary to consider the elaborate statutory machinery for the election of candidates for aldermen of the City of Chicago. Such an election is a non-partison one, with no party name appearing upon the ballots. Ill.Rev.Stats. 1969, Ch. 24, § 21-32. The Board of Election Commissioners of the City of Chicago is empowered to consider objections to nominations for aldermen. It sits ex officio as the municipal electoral board. Two of the three members are required to be selected from the two leading political parties of the State, one from each of those parties. Ill.Rev. Stats.1969, Ch. 46, §§ 6-22 and 10-9. Section 21-28 of the Cities and Villages Act regulates candidates' access to ballots in aldermanic elections:
* * *" Ill.Rev.Stats.1969, Ch. 24, § 21-28.
Article 10 of the Illinois Election Code (Ill.Rev.Stats.1969, Ch. 46, § 10-1 et seq.) specifically governs the nominations of independent candidates or candidates of minor political parties. Section 10-3 states that nominations of independent candidates for aldermen are to be made by nomination papers signed by "qualified voters" of the ward. That Section further provides that "each voter signing a nomination paper shall add to his signature his place of residence, and each voter may subscribe to one nomination for such office to be filled, and no more."1
The Section additionally demands a signed certification by a qualified voter of the ward stating that the signatures on the sheet were signed in his presence, were genuine, and that they are otherwise adequate and regular. Finally, Section 10-4 specifies that the sheets containing nominating signatures.
The time and manner for filing and handling nomination petitions are set forth in Section 10-6 of the Article. In the case of a Chicago aldermanic election, the nomination papers are to be filed with the Chicago Board of Election Commissioners, at least 50 days (now 64 days) but not more than 85 days (now 98 days) prior to the day of election. Under Section 10-7, all nomination papers "when presented or filed shall be open, under proper regulation, to public inspection," and the Board of Election Commissioners must preserve them not less than 6 months.
The Election Code next lays down the basic rules for the disposition of objections to nominating petitions. Section 10-8 permits "any legal voter of the political subdivision" to file an "objector's petition together with a copy thereof" to challenge the validity of any nominating petition "within 5 days after the last day for filing the certificate of nomination or nomination papers." The objector's petition is expected to reveal the identity of the objector, "the nature of the objections to the * * * nomination papers in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board." Within 24 hours after receipt of the objector's petition, the board must transmit by registered mail the copy of that document to the candidate whose nomination is challenged.
Within 24 hours after receiving the nomination papers and the objector's petition, the Board of Election Commissioners is required by Section 10-10 to "send a call by registered mail" to the objector and candidate, with a copy of the call also served by the sheriff upon them. The call must state the day, hour, and place of the hearing on the objections, and the hearing must not be less than three nor more than five days after the receipt of the nomination papers and the petitions. On the first day of the hearing, the Board is required to "adopt rules of procedure for the introduction of evidence and the presentation of arguments." At the hearing, the Board is required to consider "whether the nomination papers are in proper form, * * * filed within the time and under the conditions required by law," and whether the nomination papers are genuine and valid. The Board must generally "decide whether or not the * * * nominating papers on file are valid or whether the objections thereto should be sustained * * *." At the time of the election presently before this Court, the decision of a majority of the Board was "final." However, in May 1967, this Section was amended to require the Board to make written "findings" and to "state in writing which objections, if any, it has sustained." At the same time, judicial review has been provided by Section 10-10.1 in the appropriate county circuit court upon petition by either the candidate or objector within 10 days after the Board's decision.
The 1967 aldermanic election was scheduled for Tuesday, February 28. Under the foregoing provisions of the Illinois Election Code, nominating petitions were due by Monday, January 9, and the deadline for objections was Saturday, January 14. The hearings were required to begin between Tuesday, January 17, and Thursday, January 19. The parties have cited no statutory deadline for the Board's decision, which was apparently made here on Saturday, January 21, which was seven days after the last objections were received and thirty-eight days prior to the election.
The twelve plaintiff candidates submitted timely voter petitions. In accordance with usual custom, the...
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