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May 7, 1965


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 ordered:

  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
      General Assembly.
  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 judicial 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 and responsibilities.

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 ...

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