Before Schnackenberg, Circuit Judge, and Campbell and
Austin, District Judges.
The opinion of the court was delivered by: Campbell, District Judge.
The briefs filed in support of the instant motions to
reconsider and vacate and the February 4, 1965, decision of
the Illinois Supreme Court in Engle v. Kerner, 32 Ill.2d 212,
205 N.E.2d 33, indicate the need for additional comment by
this court as to the underlying rationale of our Order of
January 22, 1965. Especially provocative of comment is the
argument made by the intervening defendants and defendant
Scott that this court must, in light of the Engle decision,
relinguish its jurisdiction over this case to the state court.
Apparently, the basis for such an argument is not to be found
entirely in a reading of the Engle decision, but rather, in
counsel's analysis thereof.
Our Order of January 22, 1965, is set forth as follows:
In obedience to and in implementation of the Remand Order of
the Supreme Court herein dated July 20, 1964, it is hereby
1. That the plaintiffs amend within 10 days
their complaint to include as parties
defendant, and cause process to be issued and
served on all present members of the Illinois
2. That because of the constitutional
infirmities contained in certain provisions
of Sec. 6 Article IV of the Illinois
Constitution, S.H.A., and Ill.Rev.Stat. Ch.
46, Sec. 158-1 to 158-5, requiring the
apportionment of State Senatorial districts
on the basis of area, which provisions the
Supreme Court has found herein to violate the
Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution,
no election of Illinois State Senators may
hereafter be held pursuant to said
constitutional provision and legislation.
3. That any implementation, amendment or
substitution of all or part of the said
defective portions of the said constitution
or legislation be submitted to and approved
by this court before the holding of any
election pursuant thereto, to determine
pursuant to the aforesaid mandate
satisfactory compliance with the guidelines
set forth in the related and applicable
decisions of the United States Supreme Court.
4. That in the event no such implementation,
amendment or substitution of the
constitutionally defective method of election
of Illinois state senators is approved by
this Court, as above provided, a rule shall
issue forthwith directing the parties
defendant herein, including those added
pursuant to paragraph 1 of this order, to
show cause why all Illinois state senatorial
seats shall not be filled at and by a general
at-large election at the time presently
scheduled for the 1966 elections, and every
four years thereafter.
5. That this court retains jurisdiction to
afford such relief as may be necessary to
effectuate this Order.
The right of a court to declare a particular election system
violative of the Equal Protection Clause of the Fourteenth
Amendment to the Constitution can no longer be questioned.
Once a court has made such a determination, only what
constitutes appropriate judicial relief becomes paramount. It
is this question, addressing itself to judicially fashioning
a remedy to malapportionment, that was and is before this
court. Our Order of January 22, clearly indicates the judicial
remedy this court, in obedience to the July 20, 1964, Mandate
of the United States Supreme Court, intends to apply.
Since Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d
663, the courts and legal writers have been concerned with the
problems inherent in attempting judicially to relieve
malapportioned voting systems. One might reasonably suspect
that the Supreme Court's belated consideration of patent
apportionment abuses was due not so much to jurisdictional
doubts as to remedial difficulties. In Baker v. Carr at pages
259-260, 82 S.Ct. at page 733 Justice Clark in his concurring
opinion demonstrated this concern when he stated: "Finally, we
must consider if there are any appropriate modes of effective
judicial relief. The federal courts are of course not forums
for political debate, nor should they resolve themselves into
state constitutional conventions or legislative assemblies."
Notably in all of the more recent apportionment cases
decided by the Supreme Court they conspicuously avoid the
remedy issue usually by concluding that they "express no view
on questions relating to remedies at the present time."
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506;
WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d
568; Maryland Comm. for Fair Representation v. Tawes,
377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann,
377 U.S. 678, 84 S.Ct. 1453, 12 L.Ed.2d 609; Roman v. Sincock,
377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth
General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct.
1459, 12 L.Ed.2d 632.
Apportionment is traditionally and necessarily a legislative
function. Notwithstanding many ill-advised comments of its
detractors to the contrary this fact has been generally
acknowledged by the Supreme Court. (Reynolds v. Sims,
377 U.S. 533, 586, 84 S.Ct 1362, 1394, 12 L.Ed.2d 506; "* * *
legislative reapportionment is primarily a matter for
legislative consideration and determination * * *") The Court
appropriately continued by observing "* * * that judicial
relief becomes appropriate only when a legislature fails to
reapportion * * *". The problem involved then is one of
judicially remedying a malapportioned voting scheme without
judicially interfering with recognized legislative functions
Ours is historically and fundamentally a triune government
of co-ordinate but necessarily separate departments. Our
Constitution and traditions, appreciating Montesquieu's
concern that a separation of powers is required in order that
liberty of the people might be preserved, delegated to each
department of government — executive, legislative and judicial
— certain functions and responsibilities. Accordingly, we are
conditioned to scrupulously reviewing possible invasions by one
government department of the functions of still ...