Skolnick v. Board of Commissioners of Cook County
| Decision Date | 05 November 1970 |
| Docket Number | No. 16784.,16784. |
| Citation | 435 F.2d 361 |
| Parties | Sherman H. SKOLNICK, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF COOK COUNTY, Board of Election Commissioners of Chicago, County Clerk of Cook County, and Otto Kerner, Governor of the State of Illinois, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Sherman H. Skolnick, Chicago, Ill., for plaintiff-appellant.
Edward V. Hanrahan, Thomas E. Brannigan, Chicago, Ill., William J. Scott, Atty. Gen., Herman R. Tavins, Asst. Atty. Gen., Chicago, Ill., Stanley Kusper, Jr., Chicago, Ill., for defendants-appellees; Francis T. Crowe, Asst. Atty. Gen., of counsel.
Before SWYGERT, Chief Judge, and FAIRCHILD and PELL, Circuit Judges.
This is a purported class action seeking declaratory and injunctive relief brought pursuant to 28 U.S.C. §§ 1343 (3), 2201 and 2202 and 42 U.S.C. §§ 1983 and 1988. Plaintiffs1 originally filed their complaint on August 26, 1966. The plaintiffs alleged that they were residents of Chicago and Cook County, Illinois, and that they brought this action on behalf of themselves and "on behalf of all other voters, persons, citizens, residents and taxpayers similarly situated." In brief, plaintiffs' theory is that their votes for members of the Cook County Board of Commissioners (the "County Board") are being unconstitutionally debased and diluted in violation of the "one man-one vote" principle2 in that, while Chicago residents constitute 69.22% of the population of Cook County according to the 1960 federal census figures, Chicagoans are entitled to participate in the election of only 66.67% of the members of the board pursuant to the provisions of Ill.Const. art. 10, § 7. S.H.A.3
Upon the request of plaintiffs, a three-judge district court was convened pursuant to 28 U.S.C. §§ 2281 and 2284 to determine the cause. The three-judge court granted defendants' motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Plaintiff Skolnick thereupon appealed directly to the Supreme Court of the United States pursuant to 28 U.S.C. § 2253, resulting in a per curiam order vacating the judgment of the district court and remanding the cause for the entry of "a fresh decree."4 The Court cited Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed. 643 (1967), in its order, indicating thereby that the impaneling of a three-judge district court was improper for the consideration of a state statute having less than statewide applicability. Upon remand, District Judge Will, sitting alone, dismissed the complaint for failure to state a claim upon which relief could be granted. We affirm dismissal of the cause on a ground not cited by the district court. We hold that the plaintiffs do not have standing to assert the deprivations of which they complain, and, accordingly, the district court did not have subject matter jurisdiction of the claims asserted.
From the time the instant suit was begun by the filing of the complaint until early October, 1970, the most reliable population statistics available to the parties and to the courts were the 1960 federal census tabulations. In October, however, the Bureau of the Census published preliminary official population figures for counties and cities of Illinois based on the 1970 decennial census already conducted. According to this most recent federal census report, the total population of Cook County is 5,427,237 persons5, of which 3,322,8556 or 61.23% reside in Chicago.
One federal district court has observed that it had "the authority and the duty to take judicial knowledge of census facts" where such statistical facts were relevant to the cause before it.7 Other federal courts frequently have judicially noticed federal census data.8 We therefore take judicial notice that the most recent and accurate federal census figures available indicate that 61.23% of the population of Cook County resides within the City of Chicago.
Applying these facts to the instant cause, it is apparent that the plaintiffs lack standing to seek vindication of the rights they assert. Plaintiffs reside in Chicago where 61.23% of the population of Cook County resides, but the class of voters they seek to represent presently elects 66.67% of the membership of the County Board. Obviously, plaintiffs are not harmed by the alleged malapportionment which is the crux of this action. Indeed, they benefit thereby.
The Supreme Court restated the standing doctrine in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962):
A federal court cannot "pronounce any statute, either of a State or of the United States, void, because irreconciable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." Liverpool, N. Y. & P. Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.9
The composition prescribed for the County Board is unusual in that the county is divided into two multi-member districts and the voters of the larger district, the city, elect two thirds of the commissioners. Plaintiffs' challenge is limited to the claim that the number of representatives elected by each district should be proportioned to the population of each district. They make no claim that the two-district composition of the County Board has any other constitutional infirmity.
It is apparent that neither plaintiffs nor the Chicago residents they seek to represent suffer injury (now, in 1970) by reason of the fact that the number of commissioners is not required to be apportioned between the two districts by population. Thus they have no "personal stake in the outcome of the controversy". Indeed residents in the outside-of-city district, rather than...
To continue reading
Request your trial
-
McConchie v. Scholz
...Martinez resides in an overpopulated district, so we will dismiss him from the case for lack of standing. See Skolnick v. Bd. of Comm'rs , 435 F.2d 361, 364 (7th Cir. 1970). Regarding the McConchie Plaintiffs, McConchie and Durkin both reside in districts that are overrepresented. McConchie......
-
Traweek v. City and County of San Francisco
...responsible for converting 1980 United States Bureau of Census data from computer tapes to hard copy, see Skolnick v. Board of Commissioners, 435 F.2d 361, 363 (7th Cir.1970). The plaintiffs' objections to our use of the judicially noticeable material in determining the viability of their c......
-
Dawson v. Pastrick
...Rules of Civil Procedure 12(h)(3). See also, Capron v. Van Noorden, Cranch (6 U.S.) 126, 2 L.Ed. 229 (1804). Skolnick v. Bd. of Comm. of Cook Co., 435 F.2d 361 (7th Cir. 1970). This Court will first turn to the jurisdictional III. JURISDICTION From the outset this Court's subject matter jur......
-
In re Ivory
...F.2d 210 (7th Cir.1972) (census statistics), cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972); Skolnick v. Board of Comm'rs of Cook County, 435 F.2d 361 (7th Cir.1970) (census statistics); Celebrezze v. Wifstad, 314 F.2d 208, 216 (8th Cir.1963) (judicial notice taken of facts r......
-
Judicial notice on appeal: why all the fuss?
...of Carpenters & Joiners of Am. Local 169, 457 F.2d 210 (7th Cir. 1972) (census statistics); Skolnick v. Bd. of Comm'rs of Cook County, 435 F.2d 361 (7th Cir. 1970) (census statistics); Celebrezze v. Wifstad, 314 F.2d 208, 216 (8th Cir. 1963) (judicial notice taken of facts regarding "dr......