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ROMITI v. KERNER

June 30, 1966

PHILIP ROMITI, PLAINTIFF,
v.
OTTO KERNER, AS GOVERNOR OF THE STATE OF ILLINOIS AND CHAIRMAN OF THE STATE ELECTORAL BOARD, PAUL POWELL, AS SECRETARY OF STATE OF THE STATE OF ILLINOIS AND SECRETARY OF THE STATE ELECTORAL BOARD, WILLIAM G. CLARK, AS ATTORNEY GENERAL OF THE STATE OF ILLINOIS AND MEMBER OF THE STATE ELECTORAL BOARD, WILLIAM J. SCOTT, AS TREASURER OF THE STATE OF ILLINOIS AND MEMBER OF THE STATE ELECTORAL BOARD, AND MICHAEL J. HOWLETT, AS AUDITOR OF PUBLIC ACCOUNTS OF THE STATE OF ILLINOIS AND MEMBER OF THE STATE ELECTORAL BOARD OF ILLINOIS, DEFENDANTS.



Before Hastings, Circuit Judge, and Campbell and Decker, District Judges.

The opinion of the court was delivered by: Hastings, Circuit Judge.

Philip Romiti, a resident of Cook County, Illinois, which comprises the present first judicial district of Illinois, has brought suit as a taxpayer of Illinois and the United States and as a qualified voter in Cook County, Illinois against various officials of the State of Illinois in their public capacities. Jurisdiction is asserted under 42 U.S.C.A. § 1983 and § 1988 and 28 U.S.C.A. § 1343(3)*fn1.

The complaint was filed on December 1, 1965 in the United States District Court for the Northern District of Illinois. Named as defendants therein were Otto Kerner, as Governor of the State of Illinois and Chairman of the State Electoral Board; Paul Powell, as Secretary of the State of Illinois and Secretary of the State Electoral Board; William G. Clark, as Attorney General of the State of Illinois and member of the State Electoral Board; William J. Scott, as Treasurer of the State of Illinois and member of the State Electoral Board; and Michael J. Howlett, as Auditor of Public Accounts of the State of Illinois and member of the State Electoral Board of Illinois. Plaintiff brought this action on his own behalf and on behalf of all other persons, citizens, taxpayers and voters similarly situated.

Since this suit seeks an interlocutory and permanent injunction to restrain the enforcement, operation and execution of Illinois regulations, statutes, and constitutional provisions, determination by a three-judge court is proper under 28 U.S.C.A. § 2281*fn2.

Relief is also sought pursuant to the Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201-2202*fn3.

John W. Freels, as Director of the Administrative Office of the Illinois Courts, was granted leave to intervene herein as a party defendant, pursuant to Rule 24(b), Federal Rules of Civil Procedure, 28 U.S.C.A.

All defendants, with the exception of Paul Powell, have moved to dismiss the complaint. Plaintiff and defendant Powell opposed the motions to dismiss.

The Chicago Bar Association and the Illinois State Bar Association were granted leave to appear as amici curiae and filed briefs in support of the motions to dismiss the complaint.

Plaintiff moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., supported by his affidavit.

There being no dispute about material facts and matters of which this court may take judicial notice, the issues of law raised by the motions to dismiss the complaint and plaintiff's motion for summary judgment were submitted to the court on the pleadings, respective motions of the parties, written briefs and oral argument.

The issues raised and the supporting background of this litigation will be more fully hereinafter set out.

Under the 1870 Illinois constitution, S.H.A., Illinois was divided into districts for the election of judges of the Supreme Court. Article VI, § 5 of the 1870 constitution provided:

    "The boundaries of the districts may be changed
  at the session of the general assembly next
  preceding the election for judges therein, and at
  no other time; but whenever such alterations
  shall be made, the same shall be upon the rule of
  equality of population, as nearly as county
  bounds will allow, and the districts shall be
  composed of contiguous counties, in as nearly
  compact form as circumstances will permit. The
  alteration of the districts shall not affect the
  tenure of office of any judge."

Subsequently, in 1903, the Illinois legislature divided the state into seven supreme court districts. These districts, which remained unchanged until 1962, were, or soon became, malapportioned. The following map and supporting data, taken from plaintiff's complaint, show the geographical composition of the 1903 districts and the 1960 population figures and percentages for each of them.

  As shown by the foregoing map, the 1960 population figures for such seven supreme court districts were as follows:
District                     1960
Number                     Population               Per Cent
-------------------------------------------------------------
  1                          704,298                    7.0
  2                          635,108                    6.3
  3                          931,740                    9.2
  4                          452,394                    4.5
  5                          521,020                    5.2
  6                          816,078                    8.1
  7                        6,020,520                   59.7
Total                     10,081,158                  100.0

The Illinois supreme court judges last elected from their respective districts under the foregoing seven district division, and their terms of office, are shown as follows:

District    Judge                   Year             Term
--------------------------------------------------------------
   1        House                   1961          9 years
   2        Hershey                 1961          9 years
   3        Underwood               1962          8 years*fn4
   4        Klingbiel               1957          9 years
   5        Daily                   1955          9 years*fn5
   6        Solfisburg              1961          9 years
   7        Schaefer                1961          9 years

In 1961, the Illinois legislature proposed, and in 1962 Illinois voters approved in a statewide referendum, a comprehensive amendment to Article VI of the Illinois constitution. We have set out relevant parts thereof in the Appendix to this opinion. We shall refer to this as the 1962 Judicial Article. Its effective date was January 1, 1964.

The final approval of the 1962 Judicial Article was the culmination of many years of education and effort. The movement was unrelentingly spearheaded by The Chicago Bar Association and the Illinois State Bar Association, amici curiae in this proceeding. The result has been a complete reorganization of entire judicial system in Illinois, with the establishment of an adequate system of administrative control. It has generally been hailed as a landmark achievement in needed judicial reform throughout the United States.*fn6

Plaintiff concedes in his brief (page 8) that this "lawsuit will have no effect on judges in rank below the Supreme Court." He further agrees that the "24 Appellate Court judges in Illinois all ran for their offices anew after the Judicial Article was adopted, and, of course, are entitled to tenure." And, that the "Circuit Court judges also are entitled to the tenure provisions of the Judicial Article." Further, that there "was no defect in the way in which voters were permitted to participate in their election."

Plaintiff's complaint is addressed solely to the method of implementation of the provisions in the 1962 Judicial Article relating to the election of the judges of the Supreme Court.

Under this amendment, Illinois was divided into five judicial districts for the election of supreme and appellate court judges. The new districts are shown in the following map taken from the 1964 Annual Report of the Administrative Office of the Illinois Courts, page 6:

  Population and percentage figures for the five new districts are as follows:
District               Population               Per Cent
                                                of Total
                                               Population
--------------------------------------------------------------
   1                   5,129,725                 50.9
   2                   1,363,306                 13.5
   3                   1,266,779                 12.6
   4                   1,119,293                 11.1
   5                   1,202,055                 11.9

The first district, which has more than three times the population of any other district, is geographically coincident with Cook County. As is well known, Cook County contains the major city of Chicago and is a large manufacturing, commercial, financial, and cultural center of the Midwest and of the United States.

Instead of allotting one judge to each district, as did the old seven district system, the system under the 1962 amendment allots three judges to the first district and one judge each to the remaining four districts. Ultimately, it requires each judge to be a resident of the district from which he is elected.

If this apportionment were realized in fact, that is, if in the next general election (November 8, 1966) the first district elected three judges, who were residents of the district, while the remaining districts each elected one judge, plaintiff, on oral argument, concedes he would have no justiciable complaint.

The constitutional amendment and its attendant schedule, however, did not require the immediate realization of the new system. Schedule, paragraph 13 of the new Article VI provides:

    "(a) Notwithstanding the provisions of Section
  4 of this Article, elections on declarations of
  candidacy of judges of the Supreme Court in
  office on the Effective Date shall be held in the
  Judicial Districts established under Section 3 as
  follows:
    "(i) For incumbents from the former First and
  Second Supreme Court Districts, in the Fifth
  Judicial District;
    "(ii) For incumbent from the former Third
  Supreme Court District, in the Fourth Judicial
  District;
    "(iii) For incumbents from the former Fourth
  and Fifth Supreme Court Districts, in the Third
  Judicial District;
    "(iv) For incumbent from the former Sixth
  Supreme Court District, in the Second Judicial
  District;
    "(v) For incumbent from the former Seventh
  Supreme Court District, in the First Judicial
  District."
    "(b) The first vacancy in the office of judge
  of the Supreme Court which occurs in the former
  First and Second Supreme Court Districts, and the
  first vacancy which occurs in the former Fourth
  and Fifth Supreme Court Districts, and the
  vacancy which occurs in the former Seventh
  Supreme Court District shall be filled by the
  selection of residents of the First Judicial
  District created under Section 3 of this
  Article."

The practical effect of Schedule, Paragraph 13(a) is to create an interim election procedure whereby incumbents from the former districts stand for election in new districts as above set out. Only one incumbent is required to stand for an approval or confirming election in the first district, whereas three judges are assigned to the first district.

Following the interim election procedure of 13(a), 13(b) provides, in effect, that the remaining two judicial seats for the first district be filled by an election of first district voters when vacancies occur in either of the former first or second districts and in either of the former fourth or fifth districts.

At present, the first district has only one judge, and he is not a resident of the district.*fn7 The district, if equally apportioned, would have at least three judges.

Because of the recent death of a judge for the former fifth district, (Justice Daily, who died July 1, 1965) 13(b) operates to require the vacancy on the Illinois Supreme Court caused by his death to be filled by election by voters of the new first district. The new judge to be elected must be a resident of the new first district.

The situation with respect to the second first district judicial seat requires a digression, for the facts upon which this suit is based have changed since the suit was brought and orally argued.

A motion to dismiss generally takes as admitted all well pleaded facts of a complaint. Grand Opera Co. v. Twentieth Century-Fox Film Corp., 7 Cir., 235 F.2d 303 (1956). However, a court should not be required to accept as true, facts alleged in a complaint which are contrary to facts of which the court will take judicial notice. Golaris v. Jewel Tea Co., D.C.Ill., 22 F.R.D. 16, 19 (N.D., 1958) and cases cited there. Courts have taken judicial notice of officers, official positions and authority, Booth v. Fletcher, 69 App.D.C. 351, 101 F.2d 676 (1938), cert. den., 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511 (1939); Springfield v. Carter, 8 Cir., 175 F.2d 914 (1949); and specifically of the fact that certain state officers no longer hold office. Wells v. Hand, 238 F. Supp. 779 (M.D.Ga., 1965).

We, therefore, take judicial notice that after this suit was brought, Justice Hershey, of the present fifth district of the Illinois Supreme Court, on June 9, 1966 resigned from the court, effective November 6, 1966, two days before the coming November election. Under Schedule, paragraph 13(b), supra, this means that in the November 8, 1966 election, the first district electorate will elect two residents as judges of the Illinois Supreme Court. As above pointed out, they will fill the vacancies created by the death of Justice Daily and the resignation of Justice Hershey.

In November, then, the first district will elect two judges. The third judge who is allotted to the first district is not yet required to be a resident of the first district. The incumbency provision of § 11*fn8 of the new judicial article allows judges previously elected to file declarations of candidacy to succeed themselves and allows submission of such judges' names to the voters, on a special ballot without party designation, on the sole question of whether the judge shall be retained in office for another term. Since the term of office of the incumbent judge who must stand for confirming election in the first district does not expire until 1970, the first district will have, after the November election, only two judges who have been elected solely by voters of the first district.*fn9

The incumbent judge in question served the old seventh district, which comprised Lake, Cook, Du Page, Will and Kankakee counties. This means that the residents of the present first district (Cook County) had an opportunity to vote for their incumbent judge in his last election, although the total vote was shared with a smaller electorate now placed in other districts.

Plaintiff alleges that this state of affairs dilutes his right to vote; that Article VI, Schedule, paragraph 13 contains arbitrary and discriminatory provisions for retention in office of the current supreme court judges in the five new judicial districts; and contains provisions which arbitrarily deny the rights of voters by unreasonably putting off the time when ...


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