Gjertsen v. Board of Election Com'rs of City of Chicago, s. 84-1373

• Decision Date: 14 December 1984
• Docket Number: Nos. 84-1373,84-1379,s. 84-1373
• Citation: 751 F.2d 199
• Parties: Edward W. GJERTSEN and Ed H. Smith, et al., Plaintiffs-Appellees, v. The BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 199

751 F.2d 199

Edward W. GJERTSEN and Ed H. Smith, et al., Plaintiffs-Appellees,

v.

The BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO,

et al., Defendants- Appellants.

Nos. 84-1373, 84-1379.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1984.

Decided Dec. 14, 1984.

C. Richard Johnson, Isham, Lincoln & Beale, Chicago, Ill., for plaintiffs-appellees.

Michael Levinson, Bd. of Election Comm., Michael C. Moses, Chicago, Ill., for defendants-appellants.

Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

POSNER, Circuit Judge.

The plaintiffs in these consolidated civil rights suits brought under 42 U.S.C. Sec. 1983 consist of persons who either were candidates for Ward Committeeman of either the Democratic or Republican Party in the primary election that was held on March 20, 1984, in Chicago, or wanted to vote for these candidates. The suits were brought early in 1984, and principally sought to enjoin the City's Board of Election Commissioners from enforcing a statute that requires a candidate for Ward Committeeman who wants to appear on the ballot in the primary to get valid signatures on his nominating petition equal to 10 percent of the ward's vote for the party's candidate who received the most votes in the last municipal election. See Ill.Rev.Stat.1981, ch. 46, p 7-10(i). The complaint charges that this requirement violates the Fourteenth Amendment. The plaintiffs moved for a preliminary injunction; and after considering affidavits and other documents and hearing oral argument, the district judge on March 8, 1984, granted the motion in an order that declared the statutory requirement unconstitutional and enjoined its enforcement against the candidate plaintiffs and ordered them placed on the ballot (one on condition that he sign up more than 5 percent--rather than 10 percent--of the necessary number of voters). The order adds: "Final judgment is entered at this time in order to afford the parties the maximum notice prior to the March 20, 1984 election in which to implement, or make preparations to appeal from, this order. A full opinion detailing the reasons for this ruling will be issued later this week." 587 F.Supp. 1134. (It was issued the next day.) 587 F.Supp. 1136.

The defendants filed a notice of appeal from the order of March 8, as they were entitled to do whether it was merely the grant of a preliminary injunction or the entry of a final judgment (see 28 U.S.C. Secs. 1291, 1292(a)(1)); but the order was not stayed, 591 F.Supp. 70, and the March 20 primary was conducted in compliance with the terms of the order. Some of the candidate plaintiffs were elected Ward Committeemen; others were defeated.

This is the order before us on this appeal. But since its entry, and despite its being labeled a "final judgment," proceedings have continued in the district court. The candidate plaintiffs remain interested in the case even though the primary is long over, because whether they won or lost they will have to comply with the statutory signature requirement in the 1988 primary if they want to run for Ward Committeeman again, unless they get it struck down for good. And the voter plaintiffs remain interested because they do not want to have so limited a choice in the 1988 primary as they would have had this year if the statute had been enforced. So it is not surprising that the plaintiffs have (we were advised at argument) moved in the district court for a permanent injunction against the requirement, and in support of this motion have submitted affidavits and other materials gathered since the preliminary-injunction proceedings. The defendants have opposed the motion but have submitted no new evidence. The district judge has not yet acted on the motion; he may be waiting for this appeal to be decided.

If the order of March 8 did no more than grant a preliminary injunction, this appeal is moot. The preliminary injunction commanded certain things (mainly putting the candidate plaintiffs on the ballot) that were done before March 20. If we now order the injunction vacated, as the defendants ask us to do, it will be too late to take the plaintiffs' names off the ballot and run the primary without them, as the primary is over and done with, and the defendants do not ask that it be ordered rerun. Cf. Jefferson v. Abrams, 747 F.2d 94, 96 (2d Cir.1984); cases and discussion in 13A Wright, Miller & Cooper, Federal Practice and Procedure 2d Sec. 3533.2, at pp. 253-61 (1984). But the order of March 8 purported to do more than just grant the plaintiffs' motion for a preliminary injunction: it purported to enter a final judgment, and to declare the challenged statute unconstitutional. A declaratory judgment is appealable as a final judgment; and if the order of March 8, though made in response to a motion for a preliminary injunction, was intended to be a final declaration that the statute was unconstitutional, the appeal is not moot, for the declaration will be as applicable to future primary elections as to the one conducted last March.

But that would not be a proper characterization of the order. From the reasons the district judge gave for entering what he called a final judgment it seems he either momentarily forgot that preliminary injunctions, though nonfinal, are appealable immediately (see 28 U.S.C. Sec. 1292(a)(1)), or, what is more likely, meant simply that entry of the preliminary injunction would not be deferred for the preparation of his opinion. As for declaring the statute unconstitutional, it seems that the judge just meant that the plaintiffs had "demonstrated a reasonable likelihood of success on the merits" (as he put it in his opinion), which is a common formulation of one of the requirements for a preliminary injunction. See, e.g., Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1138-39 (7th Cir.1984). More important, the judge denied the full evidentiary hearing that the defendants had requested be held before the motion for preliminary injunction was decided only because there was not enough time for such a hearing, thus implying that such a hearing would be held (if the defendants wanted one) before a permanent injunction was entered. And there is more than an implication; the judge said in his opinion, "This opinion should not be construed to preclude the granting of a full evidentiary hearing when the...