Judge v. Quinn

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: WOOD, Circuit
• Citation: Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010)
• Decision Date: 16 June 2010
• Docket Number: No. 09-2219.,09-2219.
• Parties: Gerald A. JUDGE and David Kindler, Plaintiffs-Appellants,v.Pat QUINN, Governor of the State of Illinois, and Roland W. Burris, U.S. Senator, Defendants-Appellees.

612 F.3d 537

Gerald A. JUDGE and David Kindler, Plaintiffs-Appellants,v.Pat QUINN, Governor of the State of Illinois, and Roland W. Burris, U.S. Senator, Defendants-Appellees.

No. 09-2219.

United States Court of Appeals Seventh Circuit.

Argued Sept. 17, 2009.

Decided June 16, 2010.

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Martin J. Oberman, Attorney, Michael P. Prsoon, Despres, Schwartz & Geoghegan, Chicago, IL, for Plaintiffs-Appellants.

Brett E. Legner, Attorney, Michael A. Scodro, Attorney, Office of the Attorney General, Philip S. Holloway, Attorney, Gonzalez, Saggio & Harlan, Chicago, IL, Robert R. Furnier, Attorney, Gonzalez, Saggio & Harlan, Cincinnati, OH, for Defendants-Appellees.

Before ROVNER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge.

Constitutional specialists and U.S. history buffs will recall that the original Constitution of 1787 took a cautious approach toward the election of public officials. It interposed the Electoral College between the voters and the President, U.S. Const. art. II, § 1, and it provided that each state's two senators would be chosen by the state legislature, U.S. Const. art. I, § 3. “Judges of the supreme Court” were to be appointed by the President, “by and with the Advice and Consent of the Senate.” U.S. Const. art. II, § 2. Only the members of the House of Representatives were to be “chosen ... by the People of the several States.” U.S. Const. art. I, § 2.

In 1913, the Seventeenth Amendment to the Constitution effected a fundamental change in the legislative branch of government by providing for the direct election of senators. The amendment also changed the rules for filling vacancies in a state's senatorial delegation. Under the original Constitution, the executive authority of the state could make a temporary appointment, which would last until the next meeting of the legislature. The Seventeenth Amendment modified that process, to reflect the fact that, in principle, senators were to be elected by the voters. The relevant language is as follows:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

U.S. Const. amend. XVII para. 2. That passage may look straightforward, but this appeal has demonstrated that there is more to it than meets the eye. We must decide whether the system that Illinois is using to fill a famous vacancy in one of its senate slots has strayed so far from the mark that a preliminary injunction should have been entered by the district court. We conclude that the district court did not abuse its discretion in refusing the requested injunction, and we therefore affirm its order.

I

A

Our case began after Barack Obama, then the junior senator from Illinois, won the presidential election on November 4, 2008. The next week, President-elect Obama wrote to Rod Blagojevich, then the governor of Illinois, announcing that the President-elect would resign his position in the U.S. Senate, effective November 16, 2008. Two years and 48 days remained in his six-year term at the time of his resignation. The President-elect's resignation created an immediate vacancy in one of Illinois's two senate seats. On December 31, 2008, then-Governor Blagojevich named Roland Burris, a former Attorney General of Illinois, to assume the Obama seat. A certificate of appointment signed by the governor said that the appointment was to last “until the vacancy ... caused by the resignation of Barack Obama, is filled by election as provided by law.” Mr. Burris took the oath of office on the Senate floor on January 15, 2009.

In the meantime, the Illinois House of Representatives voted to impeach Governor Blagojevich; it returned a wide-ranging article of impeachment alleging that the governor had abused his powers, including his power to appoint a U.S. Senator. On January 29, 2009, the Illinois Senate convicted Governor Blagojevich and relieved him of duty. Lieutenant Governor Pat Quinn assumed the office of Governor of Illinois.

B

Upon Senator Burris's taking office, David Kindler and Gerald Judge, both registered voters in Illinois, sued Governor Quinn under 42 U.S.C. § 1983, alleging a violation of their rights guaranteed by the Seventeenth Amendment to the U.S. Constitution. The plaintiffs wanted the district court to declare the provisions in the Illinois Election Code for filling U.S. Senate vacancies unconstitutional and to issue an injunction requiring an election to select the person to complete the Obama term. In particular, they objected to the following part of the Illinois Election Code:

When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

10 ILCS 5/25-8 (West 2010). According to this provision, the date for the election to fill the Obama vacancy is set for November 2, 2010. (Sixty-two days will elapse between that day and the start of the 112th Congress on January 3, 2011.) The plaintiffs argued that this provision of the Illinois Election Code contravenes the second paragraph of the Seventeenth Amendment by allowing Senator Burris to serve as an appointee for an unreasonably long period of time and by saying nothing about Governor Quinn's duty to issue a writ of election. Governor Quinn's continuing failure to issue a writ of election (and Governor Blagojevich's failure to do so before him), they asserted, violated the same constitutional command. The primary relief that the plaintiffs originally requested was an injunction requiring Governor Quinn to “issue a writ for a special election to be conducted as soon as practical to fill the vacancy.”

Their motion for a preliminary injunction asked the court to “order[ ] the Governor to comply with the Seventeenth Amendment by issuing a writ setting an election to fill the vacancy in the Senate seat, not in November, 2010, but at the earliest practical date.” Governor Quinn responded with a motion to dismiss, in which he argued that neither his actions nor the Illinois Election Code violated the federal Constitution. Senator Burris submitted a brief in opposition to the complaint as well, at which point the district court concluded that he was a party that had to be joined under Federal Rule of Civil Procedure 19. The plaintiffs obliged and added him as a defendant.

At that point, the plaintiffs replied to both defendants' motions to dismiss. In this filing, which the district court construed as a reply brief for purposes of the motion for a preliminary injunction, the plaintiffs advanced a new argument: the Illinois statute violated the Seventeenth Amendment because it denied the Illinois governor discretion to decline to make a temporary appointment to a vacant senate seat and to opt instead for an immediate election. In addition, the plaintiffs clarified that they were asking for an injunction “requiring the Governor to issue a writ setting a date for a special election to fill the vacancy in the Obama seat.” But the details of their request shifted substantially: instead of pressing for an election at the earliest practical time, they now argued that the election should occur “on a reasonable, but relatively early date,” or at a minimum, that “the Governor must be ordered to exercise his discretion by acting to set some date for a special election.” (Emphasis added.)

On April 16, 2009, the district court granted the defendants' motions to dismiss and denied the plaintiffs' request for a preliminary injunction. The court refused to consider the challenge to the Illinois Election Code that the plaintiffs had introduced in their reply brief. It did, however, dismiss the case without prejudice, allowing the plaintiffs time to amend their complaint to present that claim properly. The plaintiffs did so, but they also appealed the district court's denial of their request for a preliminary injunction. See 28 U.S.C. § 1292(a)(1).

II

Before turning to the central questions on appeal, we must clarify what exactly is before us. Two of the claims that the plaintiffs have advanced are not. First is the argument that the plaintiffs raised for the first time in their reply brief, to the effect that the Illinois statute is unconstitutional because it requires the governor to make a temporary appointment when a senate vacancy arises, rather than “empowering” him to choose whether or not to make such an appointment. The district court was under no obligation to entertain this late submission, nor should we. Spitz v. Tepfer, 171 F.3d 443, 448 (7th Cir.1999). Second is the initial contention that Governor Quinn is under an obligation to order an election to fill the vacancy that will take place as soon as possible. The plaintiffs' briefs disavow any argument relating to the timing of the election that they seek, and when we pressed them at oral argument, they explicitly abandoned this position.

More puzzling is whether we may consider the argument that the plaintiffs do make before this court. The plaintiffs take the position that Governor Quinn must issue a writ of election fixing some date for an election to fill Illinois's vacant senate seat, but they do not name a date on which that election should take place. Both sides agree that a writ of election must include a date on which the election in question will occur. But the defendants argue that the plaintiffs have waived the argument that a writ must issue regardless of the election date that it incorporates because the plaintiffs did not develop the...