Appeal from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding. Judgment reversed and remanded
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
This class action for a declaratory judgment of the constitutionality of the Libertyville Fair Housing Ordinance, filed by Dr. Gary L. Phillips on behalf of himself and others similarly situated, was transferred to this court by the Supreme Court of Illinois. No constitutional issue was presented on plaintiff's direct appeal to that court, since the trial court had declined to rule on alleged constitutional questions, but had dismissed the complaint on the grounds that plaintiff lacked standing to seek a declaratory judgment, and that there was no actual controversy between plaintiff and defendants. It is, therefore, incumbent upon this court, under the transfer order, to determine whether a justiciable controversy is presented under the Declaratory Judgment Act, and whether the plaintiff has the legal standing to seek relief.
The facts respecting these issues are essentially not in dispute. At the time the complaint was filed plaintiff, a member of the clergy, had been a resident and elector of the Village of Libertyville for seven years. He was, and still is, an apartment dweller, but not a property owner. Plaintiff had participated with other residents in urging passage of a fair housing law in Libertyville. Initially, on June 11, 1968, the Village Council passed a broker-licensing type of fair housing law, (No. 68-0-19), which was repealed on August 27, 1968, when the Village passed the more comprehensive fair housing ordinance involved herein.
Plaintiff challenges the constitutionality of the following provisions contained in that ordinance: The appointment of a Human Relations Commission composed only of property owners in Libertyville; the prohibition of discriminatory acts in connection with the sale, lease or showing of real property only "to any financially qualified person," with no standards set for the determination of financial qualifications; the requirements of "specific intent" to violate the law, a $25 filing fee before any complaint of discrimination may be heard by the Commission, and the application of strict rules of evidence at any Commission hearing; and the designation of any "unfounded" complaint as a violation of the ordinance.
Plaintiff instituted this declaratory judgment action shortly after the ordinance was passed, and before the defendant Village Board appointed a Human Relations Commission. The circuit court denied all motions interposed by plaintiff. It denied a temporary restraining order to prevent the appointment of a Commission under this ordinance; denied an amendment to the complaint alleging the appointment of the Commission; denied joinder of members thereof as parties defendant; denied the intervention of Lake County Migrant Council; denied a preliminary injunction after an alleged verbal attack on plaintiff by a Village Board member at a public hearing.
The court, however, sustained defendants' motion to strike a major portion of the complaint, including allegations relating to the legislative history of the Libertyville Fair Housing Ordinance, to plaintiff's participation in securing its passage, and to the conduct of the defendant Board manifesting an intent to bar plaintiff from serving on the Commission. The circuit court then sustained defendants' motion to dismiss the complaint. In its oral opinion the court indicated that no ruling was being made upon the merits, but that the action was dismissed because plaintiff did not have sufficient standing to bring an action under the Declaratory Judgment Act.
In reviewing that judgment pursuant to the transfer order of the Illinois Supreme Court, we note first that the Illinois Declaratory Judgment Act (c 110, par 57.1, Ill Rev Stats 1967) provides that "the court may in cases of actual controversy make binding declarations of rights, having the force of final judgments whether or not any consequential relief is or could be claimed . . . including the determination of . . . the construction of any . . . municipal ordinance . . . and a declaration of the rights of the parties interested."
Defendants, while admitting that the Illinois Declaratory Judgment Act permits a declaratory judgment, "whether or not any consequential relief is or could be claimed," promptly read that clause out of the Act. Defendants argue that because plaintiff cannot demand his immediate seating on the Libertyville Human Relations Commission as a consequence of this action, therefore plaintiff is requesting only an "advisory opinion" from this court, in violation of settled principles of law prohibiting such opinions.
We cannot accept defendants' construction of the Act. In Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill.2d 419, 421, 422, 129 N.E.2d 1, it was held that the Illinois Declaratory Judgment Act does not authorize the declaration of rights involving mere abstract propositions of law without regard to the interest of the parties, but requires the existence of an "actual controversy," as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. In explaining an "actual controversy" the court quoted at p 422:
"Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised even though the adjudication of the rights of the litigants may not require the award of process or the payment of damages."
Applying that criteria to the case here, it is evident that plaintiff and members of his class are electors who are presently disqualified by the Libertyville ordinance from ever serving on the village Human Relations Commission simply because they are not property owners. They argue that such ordinance deprives them of constitutional rights and is invalid. Their interests are certainly adverse to those of the defendant Village Board which insists that the ordinance is constitutional and that the Board has a right to permit only property owners to be members of the Human Relations Commission in order to effectuate the Board's conception of fair housing. An adjudication of unconstitutionality, while it would not insure plaintiff an appointment on the Commission, would permit plaintiff and members of his class to be eligible for service on the Human Relations Commission, along with other electors. They would no longer be automatically barred as they are now, and as defendants claim they should be. In our judgment this case admits of "an immediate and definitive determination of legal rights of the parties in an adversary proceeding" and, therefore warrants application of the Declaratory Judgment Act. Our conclusion, moreover, is supported by precedent.
Analogy may be made to Otley v. Common Council of the City of Milwaukee, 281 F. Supp. 264 (USDC Wis 1968). There the declaratory judgment procedure was deemed proper to determine the constitutionality of a City Council resolution, which, if passed by the voters, would have prevented enactment of a fair housing ordinance. As in the case before us, the defendant city argued there, that there was no controversy between adverse parties. In rejecting that contention the court stated at p 274:
"A controversy undoubtedly exists . . . between the plaintiff and his class and those who seek to deprive them of the right to equal protection of laws. The Common Council is involved in this deprivation, and it is clear from the record it will continue to be involved adversely should the resolution pass, by refusing to consider action in contravention of its terms. . . ."
In Otley the decision declaring the City Council resolution unconstitutional does not insure enactment of a fair housing law any more than a decision holding the property ownership requirement in the Libertyville ordinance unconstitutional insures plaintiff an appointment on the Commission. However, in both cases the declaration of the unconstitutionality of the laws determine adverse rights of the parties, and eliminate what one side regards as an unconstitutional barrier. Those results are neither hypothetical, ...