United States v. Kusper, 70 C 2521.
| Decision Date | 21 October 1970 |
| Docket Number | No. 70 C 2521.,70 C 2521. |
| Citation | 317 F. Supp. 761 |
| Parties | UNITED STATES of America, Plaintiff, v. Stanley T. KUSPER, Jr., Marie H. Suthers, Francis P. Canary, as the Board of Election Commissioners of the City of Chicago, Illinois, and C. Jack Przyblinski, as Chief Clerk of the City of Chicago, Illinois, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
John N. Mitchell, Atty. Gen., of the U. S., Washington, D. C., William J. Bauer, U. S. Atty., for the N. D. of Ill., James R. Thompson, First Asst. U. S. Atty., and John B. Simon, Asst. U. S. Atty., Chicago, Ill., for plaintiff.
William R. Ming, Jr., Sophia H. Hall, Howard Miller and Andrew M. Raucci, Chicago, Ill., for defendants.
This is a suit by the United States alleging violations of election law procedures by members of the Chicago Board of Election Commissioners and the Board's chief clerk. Plaintiff seeks injunctive relief.
The complaint is brought pursuant to the provisions of Article 1, Section 2, Clause 1, and Article 1, Section 4, Clause 1, of the Constitution of the United States, and Title 28 of the United States Code, Section 1345.
The defendants are Stanley T. Kusper, Jr., Marie H. Suthers, Francis P. Canary, as the Board of Election Commissioners of the City of Chicago, Illinois, and C. Jack Przybylinski, as Chief Clerk of the Board of Election Commissioners of the City of Chicago, Illinois.
Article 1, Section 2, Clause 1 of the Constitution of the United States provides:
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
Article 1, Section 4, Clause 1 of the Constitution provides:
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such Regulations, except as to the Places of chusing (sic) Senators."
Title 28 U.S.C. Section 1345 provides:
"Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."
Both counsel for plaintiff and for defendant assert this suit is a case of first impression. Counsel for all the parties were requested by the Court to cite any authority for or against the right to bring this action. Counsel for both sides have stated they found none. This Court has researched the problem and can find no such case. Under these circumstances the Court does not therefore have the benefit of stare decisis in reaching its decision herein.
Plaintiff charges that, although the Congress of the United States has never passed any statute governing or controlling the election of Representatives and Senators to Congress, it has allowed the several states of the United States to enact legislation governing such elections, and that by not altering state law and allowing it to stand Congress has thereby adopted the election laws of the various states, including those of the State of Illinois. Plaintiff contends that the Illinois election law as set forth in Chapter 46 of the Illinois Revised Statutes, and commonly known as the Illinois Election Code, may be enforced in the United States District Courts in the same manner as if Congress itself had adopted the Code governing elections in Illinois, including Chicago and Cook County. The plaintiff then charges that the defendants have not been and are not now enforcing the election laws of the State of Illinois as provided in a number of the sections of said Code. Plaintiff states it has an interest in the forthcoming election on November 3, 1970 and claims the alleged violations of law have and will cause grave and irreparable harm to plaintiff and its citizens.
The plaintiff complains more specifically that the defendants as a Board of Election Commissioners are not sitting personally and carrying out their duties to hear challenges to registrants but are delegating the came contrary to the law. Plaintiff also asserts that the defendants are sending out letters and literature in the form of instructions to the election judges in form contrary to the law and that defendants are instructing the judges to ignore "so-called peace officers" in their precincts and to look only to police officers assigned to their respective precincts for aid in enforcing law and order on election day in their respective precincts. The complaint further alleges that the defendants are refusing to permit challengers and poll watchers to see the registration cards of challenged voters and that they are only shown the names of such voters, their address, and the name of the political party in whose primary such voters cast their primary votes. Plaintiff charges that all of these alleged acts and others set forth in the complaint are not only a violation of the various sections of the Illinois Election Code but also that these acts violate the intent of Congress and the rights of the United States and more particularly that such acts violate Article 1, Section 2, Clause 1, and Article 1, Section 4, Clause 1 of the Constitution of the United States. The plaintiff seeks injunctive relief of this Court against defendants, their officers, agents and employees.
The defendants in their answer deny that this Court has any jurisdiction of the parties or the subject matter, though they admit that they are all residents or citizens or both, that all are found within the territorial venue of the Court, and that all have either been served with process or have entered their appearance herein. Defendants admit that they have sent out letters and instructions to the election judges in their jurisdiction, that they have delegated certain acts to deputies, and that they have instructed election judges in the procedure to be followed by them on election day in their respective precincts. They deny that they have acted contrary to any section or part of the law as provided in Chapter 46 of the Illinois Revised Statutes, commonly known as the Illinois Election Code, or that they have violated any other provision of the laws of the State of Illinois or of the United States or of the Constitution of the United States as charged by the plaintiff, or in any other manner. On the contrary they answer and represent that they are performing their duties lawfully in every respect and in the same or similar manner to which they and their predecessors have carried on such duties in the past.
The defendants assert that most of the plaintiff's complaint consists of conclusions and therefore deny such conclusions. They deny that the plaintiff is entitled to injunctive relief or to any relief whatsoever and ask that the complaint be dismissed.
A temporary restraining order was heretofore entered in this case on October 9, 1970 by another judge of this court who was holding court after court hours. On October 11, 1970 at the hearing before this Court, the defendants moved for dissolution of the temporary restraining order on the ground that the plaintiff had not been given proper notice or in good faith had not attempted to give notice of the hearing on the temporary restraining order prior to an ex parte hearing. Upon hearing the Court granted defendants' motion and dissolved the temporary restraining order.
Plaintiff made no new motion for a temporary restraining order but announced it was ready to proceed upon its motion for a preliminary injunction. Defendants filed their answer herein and stated that they and their counsel had abided by the terms of the temporary restraining order and had utilized the time in preparing for immediate trial.
Plaintiff's counsel announced that he had a Request for Admissions; that he had subpoenas duces tecum out for some of the defendants and for certain documents, and that he could not go to trial until these were complied with by the defendants. Counsel for defendants thereupon pointed out that all of the defendants except one, who was hospitalized, had been in open court at the beginning of the hearing and were available and waived the serving of subpoenas. Defendants' counsel asked for a copy of the Request for Admissions and subpoenas duces tecum and counsel for plaintiff supplied them. The Court recessed its hearing for a short time to enable counsel for defendants to familiarize himself with them.
Upon reconvening counsel for defendants announced that he would waive the ten day notice required to answer the Request for Admissions and would answer them orally. He also stated the defendants were present in open court with all records requested by the plaintiff in the subpoenas duces tecum. Counsel for the defendants thereupon made oral answer to the Request for Admissions and delivered to counsel for the plaintiff all documents called for in the subpoenas duces tecum.
The Court thereupon directed the counsel for plaintiff to call witnesses to the stand and proceed to trial. Plaintiff called as an adverse witness defendant Francis P. Canary. He was examined at length by both counsel. The plaintiff then rested. Counsel for defendants thereupon moved that the Court dismiss the complaint for want of jurisdiction and for failure to present any evidence that proved the plaintiff's allegations or proved a cause of action. The Court took the motion under advisement and directed defendants to proceed with their defense.
Defendants called Stanley T. Kusper, Jr., one of the defendant Commissioners, to the stand and examined him and plaintiff's counsel waived cross-examination of said defendant. Thereupon defendants rested. There was no rebuttal evidence. The case was then argued by the...
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