The opinion of the court was delivered by: Marovitz, District Judge.
This is a civil rights class action brought pursuant to the
Fourteenth Amendment to the United States Constitution,
28 U.S.C. § 1331, 1343(3), 2201, and 42 U.S.C. § 1981, 1983.
Plaintiffs William James and Van Dudley are Negro citizens of
the United States and residents of Chicago, Illinois, who,
allegedly, although qualified to perform the work of a plumber
and sprinkler fitter, respectively, have been denied admittance
into the appropriate local labor unions solely because of
Defendants Richard Ogilvie, Adlai Stevenson, and William
Cellini are, respectively, the Governor, Treasurer, and
Director of Public Works and Buildings of the State of
Illinois. It is plaintiffs' theory that the defendants, knowing
of the allegedly existing racial discrimination by labor
unions, have, by contracting with the various discriminatory
building unions, supported racial discrimination in violation
of federal law. Plaintiffs, on behalf of themselves and all
other Negro workmen who are qualified by skill but unable
because of racial discrimination to join a union and thereby
secure employment on government supported building projects,
seek injunctive relief enjoining defendants from contracting
with discriminatory labor contractors for the construction of
publicly supported buildings and a declaration of the rights of
the parties to this action.
The defendants have filed a motion to dismiss this action on
the grounds that the action is barred by stare decisis, that
the defendants are immune from suit, that the complaint fails
to state a cause of action, that the issues raised are not
justiciable, that there are other adequate remedies available,
and that there is no federal jurisdiction.
To begin with, this action is not barred by the doctrine of
stare decisis. The reasoning of Gaynor v. Rockefeller, 15
N Y2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627 (1965), cited by
the defendants, supports their contention that this action
should be dismissed. However, that decision does not compel
dismissal under stare decisis because this action involves
different parties concerned with different laws applicable to
a different factual setting in a different forum. Compare,
Rhodes v. Meyer, 334 F.2d 709, 718 (8th Cir. 1964), cert.
denied 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964).
Moreover, Ethridge v. Rhodes, 268 F. Supp. 83 (S.D.Ohio 1967)
presents a subsequent and contrary position to that taken in
Nor are these defendants immune from suit. Defendants suggest
that in the absence of any allegations that they were acting
other than in their official capacity as state officials, they
are immune from this civil rights action. This argument has no
merit. It is precisely because defendants committed the alleged
conduct in their official capacities, that is, under color of
law, that they are subject to civil rights suits. 42 U.S.C. § 1983.
Clearly, public officials are not immune from suit when
they allegedly violate the civil rights of citizens. American
Federation of State, County and Municipal Employees v.
Woodward, 406 F.2d 137, 138 fn. 2 (8th Cir. 1969); Birnbaum v.
Trussell, 347 F.2d 86, 88-89 (2d Cir. 1965); Inmobiliaria
Borinquen, Inc. v. Garcia Santiago, 295 F. Supp. 203, 205-206
Defendants' contention that this complaint fails to state a
cause of action is grounded in an essentially restrictive and
now outdated concept of the rights of free citizens in a free
society. Civil actions for deprivation of rights are allowable
pursuant to 42 U.S.C. § 1983. Under this section, plaintiffs
must assert that defendants acted under color of law. This
plaintiffs have done.
Further, plaintiffs must allege that they were deprived of
some Constitutional or legal right. The right of a skilled,
qualified worker not to be excluded from membership in a labor
organization because of his race or skin color is a firm,
established statutory right under federal law, 42 U.S.C. § 2000e-1,
and under Illinois law, Ill.Rev. Stat. Ch. 48, §
853(c) (1967). It has also been held, and properly so, that as
membership in a labor union is a contractual relationship or at
least a link in obtaining an employment contract, the rights to
union membership without regard to race or skin color also
exists under 42 U.S.C. § 1981, which provides for equal rights
in the making of a contract. Dobbins v. Local 212,
International Brotherhood of Electrical Workers, 292 F. Supp. 413,
442 (S.D.Ohio 1968). See also, Whitner v. Davis,
410 F.2d 24, 30 (9th Cir. 1969); Van Zandt v. McKee, 202 F.2d 490, 491
(5th Cir. 1953); In re
Tiburcio Parrott, 1 F. 481, 498, 505-521 (C.C. 1880).
Finally, plaintiffs must allege that it was the defendants
who, while acting under color of law, were the parties that
subjected plaintiffs or caused them to be subjected to the
alleged deprivation. Here, the plaintiffs have basically
charged that the state officials have become joint participants
in racially discriminatory hiring practices. If so, such
conduct constitutes a violation of Section 1983. Ethridge v.
Rhodes, 268 F. Supp. 83, 87 (S.D.Ohio 1967); cf. Burton v.
Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856,
6 L.Ed.2d 45 (1960); Colon v. Tompkins Square Neighbors, Inc.,
294 F. Supp. 134, 137 (S.D.N.Y. 1968). Having alleged all of the
elements of Section 1983, plaintiffs have stated a good cause
of action in federal law. Defendants' suggestions that
plaintiffs' allegations are conclusory are not well founded.
Defendants' next contention, that the issues presented in
this action are non-justiciable political questions, is
similarly without substance. The political question doctrine is
of increasingly limited scope, Shakman v. Democratic
Organization of Cook County, 310 F. Supp. 1398 (N.D.Ill. 1969),
and the mere fact that an action is brought against government
officials who may also be political leaders does not mean that
the issue presented is a political question. Cf. Baker v. Carr,
369 U.S. 186, 209, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In fact,
a trial was held and an order was fashioned in a case quite
similar to this one, Ethridge v. Rhodes, 268 F. Supp. 83 (S.D.
Ohio 1967). Contrary to defendants' position, the Ethridge case
did not substitute sociology for the rule of law, rather it
applied the various laws which seek to insure equal employment
opportunities for all of this nation's citizens to a situation
where those rights were being infringed by public officials and
it fashioned legal remedies to correct violations of those
That there are potential state remedies available to
plaintiffs is not a sufficient ground for dismissal of this
action. Relief under Section 1983 is not inappropriate even
where relevant state remedies are available, but not pursued.
Whitner v. Davis, 410 F.2d 24, 28 (9th Cir. 1969); Kalec v.
Adamowski, 406 F.2d 536, 537 (7th Cir. 1969); Lee v. Hodges,
321 F.2d 480, 484 (4th Cir. 1963).
Whether or not federal administrative procedures must be
invoked before plaintiffs can be said to have standing to bring
this civil rights action is not as clear. There is no doubt
that a federal civil action may not be brought under 42 U.S.C. § 2000e-5(e)
unless the moving party first commenced action
under the federal administrative procedure dealing with
unlawful employment practices. Dent v. St. Louis-San Francisco
Ry. Co., 406 F.2d 399, 403 (5th Cir. 1969); Choate v.
Caterpiller Tractor Co., 402 F.2d 357, 359 (7th Cir. 1968);
Stebbins v. Nationwide Mutual Ins. Co., 382 F.2d 267, 268 (4th
Cir. 1967); Green v. McDonnell-Douglas Corp., 299 F. Supp. 1100,
1101-1102 (E.D.Mo. 1969). Yet, while Section 2000e-5(e)
requires prior exhaustion, Section 1983, a general civil rights
provision and the basis for the instant action, is silent as to
whether federal administrative exhaustion is a jurisdictional
prerequisite. In sum, there appears to be a procedural
inconsistency between two federal statutes, both of which
concern the statutory civil right to an equal employment
To the extent that any such inconsistency exists, however, it
must be resolved by Congress, not by the judiciary. We do know
that Congress did direct that certain jurisdictional statutes
relating to labor disputes, 29 U.S.C. § 101-115, were not to
apply to civil actions brought under Section 2000e. See
42 U.S.C. § 2000e-5(h). On the other hand, there is no language in
Section 2000e-5 and we know of nothing in the Congressional
consideration of it that indicates that the problem of
overlapping civil rights jurisdiction was discussed or
evaluated, and it would be improper
for this court to imagine what Congress might have done.
If a party seeks to avoid Section 2000e-5 and its exhaustion
requirement and instead pursues a perceived grievance through
Section 1983, which incorporates no such requirement, that is
his prerogative. Were we to hold that exhaustion of federal
administrative procedures is required in order to acquire
standing in federal court for this type of case, we would, in
effect, be saying that Section 1983 allows for civil actions
based on the deprivations of any Constitutionally or legally
secured right, except that of freedom from discriminatory
employment practices. Moreover, to require exhaustion of the
federal remedy would indirectly compel exhaustion at the state
level and that, as we have previously stated, is not necessary.
See Ethridge v. Rhodes, 268 F. Supp. 83, 88-89 (S.D.Ohio 1967).
Thus, this federal court has jurisdiction to entertain this
action which is based on an alleged deprivation of civil
rights. As a public official's defense of immunity is to be
sparingly applied in these kinds of cases, Jobson v. Henne,
355 F.2d 129, 133-134 (2d Cir. 1966); Donovan v. Mobley,
291 F. Supp. 930, 934 (C.D.Cal. 1968), a district court has the
power to grant equitable relief against state officers who
allegedly violate plaintiff's constitutional rights. Schnell v.
City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969); National
Association for Advancement of Colored People v. Thompson,
357 F.2d 831, ...