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February 28, 1964


Before Castle, Circuit Judge, and Hoffman and Will, District Judges.

The opinion of the court was delivered by: Will, District Judge.

These cases have their genesis in the, failure of the General Assembly of the State of Illinois to reapportion the State's House of Representatives during the 1963 legislative session as required and directed by Art. IV, §§ 7 and 8, of the Illinois Constitution of 1870, as amended, S.H.A.*fn1

During the final days of the regular session of the Seventy-Third General Assembly, the two Houses of the Illinois. legislature passed a bill redistricting the state into 59 Representative Districts.*fn2 Governor Kerner vetoed the bill, which veto survived a court test in Williams v. Kerner, 30 Ill.2d 11, 195 N.E.2d 680 (1964). After vetoing the redistricting bill passed by the legislature, the Governor, pursuant to the procedures set out in the above sections of the Illinois Constitution, appointed a ten member commission empowered to reapportion the state. That body was unable, within its statutory life, to reach agreement on new district lines.

As the state prepared to hold an at large election, certain citizens challenged the interpretation of the above related facts as requiring an at large election and sought a ruling permitting candidates for the office of State Representative to run from the old districts. Refusing the construction urged upon it, the Supreme Court of Illinois, in People ex rel. Spence v. Carpentier, 30 Ill.2d 43, 195 N.E.2d 690 (1964) held "that since no act was passed which became law there was a failure by the General Assembly to `redistrict', that the commission was therefore validly appointed, and that its failure to act must result, under the requirements of section 8, in the nomination and election of State representatives at large." Id., 195 N.E.2d at 693.

Faced with the reality of an impending at large election, the Governor called the General Assembly into special session to provide legislation establishing the mechanics for such balloting. The legislature responded to its task by passing House Bill 1*fn3, which was subsequently signed into law by the Governor. That Act, detailing the procedures to be followed in conducting the 1964 at large election, is now under attack in the Illinois Supreme Court as being violative of the Federal Constitution. The case, Daniels v. Carpentier, No. 38386, Sup.Ct. Ill., Mar. Term, 1964, is set for a hearing on March 17, 1964.

The plaintiffs in the two cases here consolidated for hearing challenge the validity of Art. IV, §§ 7 and 8, of the Illinois Constitution under the Federal Constitution. Both Swanson and Chesley are identified as citizens and electors residing in the State of Illinois and as voters eligible to vote for candidates for State Representative in the November, 1964, general election. The plaintiffs seek to make this cause a class action, bringing suit on their own behalf and for all other electors and citizens of the state.

Defendant Kerner is named in his capacity as Governor of the state; defendant Carpentier, as the incumbent Secretary of State. Both defendants are members of the State Electoral Board, which is charged with general supervisory authority over elections held in the state and which body attorneys for the defendants suggest, while waiving the point as an avenue of possible defense, is the proper defendant in this case. The State of Illinois, made a defendant in Swanson, 63 C 2303, is improperly joined and is hereby dismissed as a party in that action.

The Court's jurisdiction in this cause rests on 28 U.S.C. § 1343(3). This three judge panel is constituted and convened under 28 U.S.C. § 2284, pursuant to 28 U.S.C. § 2281. The cases come on for hearing on defendants' motions to dismiss or, in the alternative, to abstain.

Plaintiffs would have us hold that any at large election for the office of State Representative is unconstitutional. It is clear that at large elections are not unconstitutional per se. See Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932) and Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807 (1932), holding constitutional at large elections of members of the United States House of Representatives. The office and numbers are different in the instant case, but, so far as the due process and equal protection challenges raised here, the principle is the same.

Moreover, it is well settled that courts will not pass on constitutional questions in the abstract. Allen-Bradley Local No. 1111, Elec., etc. Workers v. Wisconsin Employment Relations Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942); Local No. 8-6, Oil, etc. Workers v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960). In this connection, it should be noted that the instant cases, which were instituted prior to the enactment of House Bill 1, do not raise the question, now before the Illinois Supreme Court in Daniels, supra, of the constitutionality of the at large election procedure embodied in that bill. On the contrary, in oral argument, counsel for the plaintiffs specifically rejected that issue in these cases. Accordingly, there is not before this Court at the present time any Federal constitutional question on which it may properly rule.

Before this Court can rule on the constitutionality of the contemplated November, 1964, at large election for State Representatives in Illinois, we must await interpretation of the statute, House Bill 1, enacted to govern that election. Hence, we must abstain until after a final determination of the issues raised in Daniels.

Our employment of the abstention doctrine does not work to deprive the plaintiffs of a federal forum. We maintain jurisdiction and retain the cases until Daniels is decided. If, after final determination of Daniels, Federal constitutional questions remain unresolved, the plaintiffs may return to this Court for a determination of those issues.

If, on the other hand as seems likely, the Illinois Supreme Court in Daniels weighs the Federal constitutional questions relating to the at large election contemplated by House Bill 1, its decision may be reviewed by the United States Supreme Court upon certiorari. England v. Louisiana State Bd. of Medical Examiners, 1964, 84 S.Ct. 461; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Upon final adjudication of Daniels, it may well be that the plaintiffs here, as members of the class represented in that case, will have had a complete and final adjudication of their claims and the instant actions will become moot.

In the light of all the foregoing considerations, we conclude that abstention is the only proper course ...

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