Skolnick v. Mayor and City Council of Chicago

• Citation: 415 F.2d 1291
• Decision Date: 18 August 1969
• Docket Number: No. 17181.,17181.
• Parties: Sherman H. SKOLNICK, George Eskelinen, and Leon M. Despres, Plaintiffs, v. MAYOR AND CITY COUNCIL OF CHICAGO, and Board of Election Commissioners of Chicago, Defendants-Appellees. Sherman H. Skolnick and George Eskelinen, Plaintiffs-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

415 F.2d 1291 (1969)

Sherman H. SKOLNICK, George Eskelinen, and Leon M. Despres, Plaintiffs, v. MAYOR AND CITY COUNCIL OF CHICAGO, and Board of Election Commissioners of Chicago, Defendants-Appellees.

Sherman H. Skolnick and George Eskelinen, Plaintiffs-Appellants.

No. 17181.

United States Court of Appeals Seventh Circuit.

August 18, 1969.

Sherman H. Skolnick and George Eskelinen pro se.

Robert L. Stern, Julian B. Wilkins, James P. Chapman, Chicago, Ill., for amicus curiae.

Raymond F. Simon, Corp. Counsel, Stanley T. Kusper, Jr., Edmund Hatfield, Chicago, Ill., for defendants-appellees Mayor and City Council of Chicago; Marvin E. Aspen, Asst. Corp. Counsel., Chicago, Ill., of counsel.

Before HASTINGS, Senior Circuit Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.

HASTINGS, Senior Circuit Judge.

Plaintiffs Sherman H. Skolnick and George Eskelinen filed an amended complaint in the United States District Court for the Northern District of Illinois, Honorable William J. Campbell, Chief Judge Presiding. Plaintiffs are not lawyers and have appeared and acted pro se throughout this proceeding. Each is a citizen and legal resident and voter of the City of Chicago, Cook County, State of Illinois. They brought this action on behalf of themselves and as a class action on behalf of all other voters, persons, citizens, residents and taxpayers similarly situated.

Named as defendants are the Mayor and City Council of Chicago and the Board of Election Commissioners of Chicago. It is alleged that the City of Chicago is a municipal corporation operated by the Mayor, who is president of the City Council of Chicago, and fifty aldermen who comprise the membership of the City Council, and all of whom are elected by the legal voters of the City of Chicago pursuant to appropriate statutes of the State of Illinois. It is alleged that the defendant Board of Election Commissioners of Chicago is charged with the responsibility of conducting elections in Chicago.

In substance, the amended complaint challenges the constitutional validity of the existing ward lines of the City of Chicago as drawn by the City Council in 1961 and alleges further that the existing wards of the City of Chicago are not in conformity with the constitutional "one man-one vote" standards formulated and announced after the wards were last reapportioned in 1961. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and its progeny.

Plaintiffs seek equitable relief (1) voiding the city election of the Mayor and City Council in 1967; (2) ordering a special city election based on constitutionally reapportioned districts; (3) restraining the Board of Election Commissioners from proceeding further under present districts; (4) restraining the Mayor and City Council from acting further until a constitutionally proper reapportionment of the city wards takes place; and (5) praying the district court to retain jurisdiction on such basis as it may deem proper.

Subsequently, pursuant to Rule 23, Federal Rules of Civil Procedure, 28 U.S. C.A., the district court found, sua sponte, that the amended complaint properly presented claims or defenses of the representative parties common to the class represented. The court further found that the pro se plaintiffs, although properly credited for having commenced this action, were not qualified to adequately represent the interests of other members of the class who needed such representation because of the importance of the issues raised. Accordingly, in compliance with the requirements of Rule 23(a) (4)¹, supra, the court appointed the Chicago Bar Association amicus curiae herein and directed that, through its proper representatives it provide proper protection of the rights and interests of all of the voters of Chicago in this case.

The district court ordered that the defendant Leon M. Despres, a member of the City Council of Chicago, be realigned as a party plaintiff since he had embraced the position taken by plaintiffs on the issue of malapportionment of the city wards.

Thereafter, following the holding in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), making the "one man-one vote" principle of Baker v. Carr, supra, applicable to municipalities of a state, the district court found that the appointment of two special commissioners to assist the court would be in the public interest. Accordingly, the court appointed Richard E. Friedman, Esq. and Don H. Reuben, Esq., "Special Commissioners of this court to marshal all factual information now available and the various suggestions of the parties; to conduct such hearings as in their discretion may be necessary to formulate their own observations and suggestions on the entire matter; and to report to the court as soon as possible." It clearly appears that Messrs. Friedman and Reuben are distinguished members of the Chicago Bar who have rendered similar expert assistance in several prior Illinois reapportionment cases.

Defendants Mayor and City Council promptly filed a status report with respect to the progress they had made in consideration of the necessity of reapportioning the wards of the City of Chicago as previously ordered by the court.

The Chicago Bar Association as amicus curiae was represented throughout this proceeding, and on appeal, by its attorneys, Robert L. Stern, Julian B. Wilkins and James P. Chapman, highly reputable members of the Chicago Bar.

The Special Commissioners filed an interim report recommending denial of plaintiffs' motion to enjoin a special election to be held in the City of Chicago on June 11, 1968 to fill a vacancy in the City Council occasioned by the resignation of the alderman for the First Ward of Chicago. Subsequently, after hearing the matter, the district court overruled plaintiffs' objections and denied their motion to enjoin the special election to fill such vacancy.

Thereafter, in compliance with a prior order of the district court, the Special Commissioners held a public hearing on May 7, 1968 on the merits of the case. Plaintiffs were present in person and defendants and the amicus were represented by counsel. All witnesses and the parties were fully heard. The Special Commissioners took the matter under advisement, including the several written and statistical studies and reports received in evidence.

The Special Commissioners filed their interim report on the merits with the district court on July 27, 1968, which we set out in full in the margin.² As appears therein, the Special Commissioners found that the existing ward lines of the City of Chicago, as drawn by the City Council in 1961, were not in conformity with the mathematical "one man-one vote" constitutional standards judicially formulated and determined subsequent to the 1961 redistricting. Thus, on that issue the finding was favorable to plaintiffs' contentions. The Special Commissioners further recommended that the district court order each of the parties to file their suggestions to the court concerning an appropriate remedy in light of their report.

On July 30, 1968, the district court entered an order approving the interim report of July 27, 1968 and adopting the findings and recommendations of the Special Commissioners, which order appears in full in the margin.³ As appears therein, the parties were given leave to file their suggested plans "to constitutionally remedy the malapportionment of the City's wards" not later than August 29, 1968, and to further file suggestions concerning an alternative remedy.

Thereafter, certain of the parties and Dr. Joseph R. Godwin, who testified as an expert witness, filed suggestions as requested by the district court. On September 11, 1968, the trial court filed its memorandum and entered its order determining this cause, which appear in full in the margin.⁴ As appears therein, the district court restated its finding that the existing wards were malapportioned, and then proceeded with its determination of an appropriate remedy.

In short, the trial court ordered (1) that defendants be enjoined from conducting any further elections for the office of Alderman of the City of Chicago, except special elections in individual wards to fill individual term vacancies, under the present apportionment ordinance; (2) that defendant City Council report to the trial court on October 1, 1970 whether it has available adequate information to draft a fair and constitutionally valid reapportionment ordinance; (3) that defendant City Council file with the trial court on or before November 1, 1970, a "fully detailed and lawfully enacted redistricting ordinance based on the 1970 census figures and conforming with the requirements of the United States Constitution; and (4) that the trial court retain jurisdiction of the cause to fully carry into effect its orders.

Plaintiffs appeal only from that part of the judgment order "delaying the remedy in the above case."

Realigned plaintiff Despres and defendants do not appeal from any part of the judgment.

On this appeal, plaintiffs appear pro se and defendants appear by counsel. They have filed briefs. Realigned plaintiff Despres does not appear in this court. We granted leave to the amicus curiae appointed by the trial court to file a brief in this court and by its designated counsel it has done so.

All parties and the amicus agree that the trial court properly found and determined that the present apportionment ordinance of the City of Chicago is unconstitutional. We agree. It is not necessary to further discuss that issue here.

In the interim, on October 1, 1968 this court in a memorandum order denied plaintiffs' motion for summary action voiding the 1967 aldermanic elections and ordering an at-large election of all 50 aldermen at the general election on November 5, 1968.

On November 14, 1968, plaintiffs filed in this court a motion to enjoin the City of Chicago from holding special elections early in 1969 to fill five aldermanic...