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GERMANO v. KERNER

August 25, 1965

JOSEPH GERMANO ET AL., PLAINTIFFS,
v.
OTTO KERNER, AS GOVERNOR OF THE STATE OF ILLINOIS AND CHAIRMAN OF THE STATE ELECTORAL BOARD, ET AL., DEFENDANTS.



Before Schnackenberg, Circuit Judge, and Campbell and Austin, District Judges.

The opinion of the court was delivered by: Campbell, Chief Judge.

PRE-TRIAL MEMORANDUM (RULE 16 F.R.Civ.P.) August 25, 1965

Let the record herein show, that subsequent to the order of the Supreme Court of Illinois in People ex rel. Engle v. Kerner et al., 210 N.E.2d 165, dated July 29, 1965, and recognizing that the Supreme Court of Illinois wisely gave the two opposing factions of the State Electoral Board a final opportunity to settle in an orderly fashion the longstanding Illinois reapportionment controversy — I requested counsel for said factions to confer with me in pre-trial conference. Both counsel kindly complied and agreed that the public interest would best be served by an early end to the Illinois Senate reapportionment conflict. Both counsel also agreed to endeavor, with my assistance, to stipulate to a fair and equitable reapportionment of the Illinois Senate in accordance with the principle of "one man, one vote" and the provisions of Illinois law.

Counsel have since conferred with each other and with the respective parties they represent, and many further pre-trial conferences were held before me with the knowledge and approval of the Illinois Supreme Court up to and including August 19, 1965. On that date counsel appeared and advised that, although much agreement had been reached, they were unable fully to resolve their few remaining differences and thus could not stipulate to any senatorial reapportionment map.

During the course of our many meetings and by the time the negotiations between the parties reached this impasse, counsel for both factions had submitted a number of proposed reapportionment plans, with accompanying population data and other relevant information. All of this material was examined by me and members of the Illinois Supreme Court and after further consultation with counsel, a senatorial reapportionment plan has been prepared upon the basis of the aforesaid preliminary agreement. A copy is attached hereto with maps, legal descriptions and population totals for proposed senatorial districts according to the 1960 census.

It is my considered opinion that this plan is a just, equitable, and constitutional reapportionment of the Illinois Senate; I also believe that the plan constitutes a fair compromise between the divergent proposals submitted by the parties. Accordingly I hereby file this Memorandum herein and the Clerk is instructed to submit a copy of this Memorandum and the attached plan to the Illinois Supreme Court.

The aforesaid plan and attachments have been submitted to the other members of the panel of this court (Schnackenberg, C.J., presiding and Austin, D.J.) and they concur in what I have done herein. In order to dispose of this matter a hearing will be held by this Court upon notice to all counsel of record.

PER CURIAM.

By order dated June 8, 1965, this Court established September 10, 1965 (thereafter extended to October 4, 1965), as a reasonable date by which the appropriate agencies of the State of Illinois should validly reapportion the Illinois State Senate, pursuant to the decision of the Supreme Court of the United States announced on June 1, 1965, in this cause, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477. Thereafter, the 74th Illinois General Assembly adjourned on June 30, 1965, without having reapportioned the Illinois Senate. Then on July 30, 1965, the Supreme Court of Illinois in the cause known as People ex rel. Engle v. Kerner, 210 N.E.2d 165, ordered the parties to confer with each other in an attempt to reconcile their conflicting views and present an agreed plan for a valid reapportionment of the Illinois Senate.

Subsequently this Court (per Campbell, J.), with the knowledge and approval of the Supreme Court of Illinois, conducted numerous and extensive pretrial conferences in an effort to obtain agreement among the members of the Illinois Electoral Board as to a constitutionally valid reapportionment of the Illinois Senate. Although complete agreement did not result, substantial progress was achieved; on August 25, 1965, the pre-trial conferences culminated in the entry in this cause of a Pretrial Memorandum attaching and incorporating a provisional senatorial reapportionment plan (including maps, legal descriptions and population data).

The said reapportionment plan was based upon the areas of agreement reached by the parties; district boundaries were drawn by the Court in the instances where the parties could not agree. The Pretrial Memorandum was concurred in by all the members of this Court, and was transmitted forthwith to the Clerk of the Supreme Court of Illinois.

On September 9, 1965, the Supreme Court of Illinois issued its opinion and decision in People ex rel. Engle v. Kerner, supra, fully approving and adopting the provisional senatorial reapportionment plan attached to and incorporated in this Court's Pretrial Memorandum Ill., 210 N.E.2d 165. The Clerk of the Supreme Court of Illinois has now transmitted that Court's opinion and the accompanying reapportionment plan to the Clerk of this Court and it has been filed in this cause.

Pursuant to the Pretrial Memorandum of August 25, 1965, it is hereby ordered that a rule be and the same is hereby entered upon all parties herein to show cause, if any, and in writing within ten (10) days as to why the senatorial reapportionment plan (attached to the Pretrial Memorandum of August 25, 1965 and to the Opinion of the Supreme Court of Illinois of September 9, 1965) is not constitutional and to further show cause, if any, as to why this Court should not now enter a final order finding said plan constitutional.

JUDGMENT

Pursuant to the rule entered by this Court on September 29, 1965, the Court has received the written suggestions of the parties hereto and finds that the reapportionment plan for the Illinois Senate embodied in this Court's Pretrial Memorandum of August 25, 1965 (subsequently approved and adopted by the Supreme Court of Illinois on September 9, 1965) is in compliance with the federal constitutional principle of "one man one - vote". (U.S.Const., Amendment XIV; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632. The Court accordingly finds that approval of the said reapportionment plan will fully comply with the Mandate of the Supreme Court of the United States in this cause (381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477) and will dispose of this action upon its merits.

Due notice heretofore having been given to all parties and all parties having been heard upon said plan, it is hereby ordered, adjudged and decreed that the reapportionment plan for the Illinois State Senate attached to and incorporated in this Court's Pretrial Memorandum of August 25, 1965, as approved and adopted by the Supreme Court of Illinois on September 9, 1965, be and the same is hereby declared to be in accordance with the federal law, and the same is hereby also declared to be the senatorial map for the State of Illinois for the election of Illinois State Senators in 1966 and thereafter, until the Illinois State Senate is redistricted in accordance with law.

APPENDIX

  POPULATION DATA FOR COOK COUNTY SENATE DISTRICTS OUTSIDE THE CITY
      OF CHICAGO
                          Deviation
                             from
  District                   Norm
     No.     Population    (173,813)
      1        169,103       -2.7%
      2        163,871       -5.8%
      3        172,069       -1.0%
      4        178,204       .5%
      5        185,014       .4%
      6        175,943       .2%
      7        176,647       .6%
      8        176,368       .5%
      9        182,865       .2%
LEGAL DESCRIPTIONS FOR COOK COUNTY SENATE DISTRICTS OUTSIDE THE
    CITY OF CHICAGO

District 1: New Trier Township, Evanston Township, that part of Northfield Township lying to the south and east of a line described as follows: beginning at the point where Voltz Road extended intercepts the eastern township boundary proceed west along the center of Voltz Road to the center of the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then in a southerly and westerly direction along said line to the point where it intercepts the southern township boundary, that part of Niles Township lying north of Dempster Street and east of Crawford Avenue, all in Cook County.

District 2: The townships of Leyden, Norwood Park, River Forest, and that part of Oak Park Township lying north of Madison Street, all in Cook County.

District 3: The townships of Barrington, Elk Grove, Hanover, Palatine, Shaumberg, and Wheeling, that part of Northfield Township lying to the north and west of a line described as follows: beginning at the point where Voltz Road extended intercepts the eastern township boundary proceed west along the center of Voltz Road to the center of the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then proceed in a southerly and westerly direction along said freight line to the point where it intercepts the south township boundary, that part of Maine Township lying north and west of a line described as follows: beginning at the western boundary of Maine Township at Thacker Street proceed east on Thacker Street to the Chicago and North Western Railway right-of-way then north along said right-of-way to the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then northeasterly along said freight line to the Des Plaines River, then northerly along the Des Plaines River to the northern boundary of Maine Township, all in Cook County.

District 4: Maine Township, excepting that portion which lies to the north and west of a line described as follows: beginning at the western boundary of Maine Township proceed east along the center of Thacker Street to the Chicago and North Western Railway right-of-way then north along said right-of-way to the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then northeasterly along said freight line to the Des Plaines River, then northerly along the Des Plaines River to the northern boundary of Maine Township, and Niles Township excepting that part lying north of Dempster Street and east of Crawford Avenue, all in Cook County.


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