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Briscoe v. Kusper

December 22, 1970

ROBERT BRISCOE ET AL., PLAINTIFFS-APPELLANTS,
v.
STANLEY T. KUSPER, JR., ET AL., DEFENDANTS-APPELLEES



Swygert, Chief Judge, Knoch, Senior Circuit Judge, and Cummings, Circuit Judge. Knoch, Senior Circuit Judge (dissenting in part).

Author: Cummings

CUMMINGS, Circuit Judge.

Twelve of forty-six candidates barred from the ballots in the 1967 Chicago aldermanic election and nineteen registered voters who signed their nominating petitions filed this class action against the members of the Board of Election Commissioners of the City of Chicago. The action was predicated on the Civil Rights Act (42 U.S.C. § 1983) on the ground that plaintiffs had been deprived of rights, privileges or immunities secured by the Constitution. In its present posture, the gravamen of the amended complaint is that in refusing to place the names of these candidates on aldermanic ballots, defendants employed procedures denying plaintiffs due process and equal protection of the laws, as guaranteed by the Fourteenth Amendment.

Count I of the amended complaint sought declaratory and injunctive relief. Plaintiffs moved for the convention of a three-judge panel pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284 to consider their constitutional objections to the Illinois Election Code. Ill.Rev.Stats. 1969, Ch. 46, § 10-1 et seq. The district court held that there was no substantial constitutional question and therefore denied the motion pursuant to the rule of Ex Parte Poresky, 290 U.S. 30, 32, 54 S. Ct. 3, 78 L. Ed. 152. Plaintiffs no longer seek injunctive relief against enforcement of any state law, and the matter is properly before this Court for consideration of the requested declaratory judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155, 83 S. Ct. 554, 9 L. Ed. 2d 644. Count II sought $100,000 damages for each plaintiff.

Count I received a 3-day bench trial at which the district court also considered prior testimony taken on plaintiffs' unsuccessful motion for a preliminary injunction, the depositions filed, and the uncontested facts contained in the pre-trial order. At the close of plaintiffs' case, the court granted defendants' motion for findings and judgment in their behalf under Count I. The district court found that defendants' procedures violated neither the equal protection nor due process clauses of the Fourteenth Amendment. Summary judgment was granted for defendants under Count II, on the ground that "because of their official position they [defendants] are immune from actions for damages on account of their official acts."

In order to resolve the contentions of the parties, it is necessary to consider the elaborate statutory machinery for the election of candidates for aldermen of the City of Chicago. Such an election is a non-partison one, with no party name appearing upon the ballots. Ill.Rev.Stats.1969, Ch. 24, § 21-32. The Board of Election Commissioners of the City of Chicago is empowered to consider objections to nominations for aldermen. It sits ex officio as the municipal electoral board. Two of the three members are required to be selected from the two leading political parties of the State, one from each of those parties. Ill.Rev.Stats.1969, Ch. 46, §§ 6-22 and 10-9. Section 21-28 of the Cities and Villages Act regulates candidates' access to ballots in aldermanic elections:

"All nominations for alderman of any ward in the city shall be by petition. All petitions for nominations of candidates shall be signed by such a number of legal voters as will aggregate not less than two per cent of all the votes cast for alderman in such ward at the last preceding general election. All such petitions, and procedure with respect thereto, shall conform in other respects to the provisions of the election and ballot laws then in force in the city of Chicago concerning the nomination of independent candidates for public office by petition. * * *" Ill.Rev.Stats.1969, Ch. 24, § 21-28.

Article 10 of the Illinois Election Code (Ill.Rev.Stats.1969, Ch. 46, § 10-1 et seq.) specifically governs the nominations of independent candidates or candidates of minor political parties. Section 10-3 states that nominations of independent candidates for aldermen are to be made by nomination papers signed by "qualified voters" of the ward. That Section further provides that "each voter signing a nomination paper shall add to his signature his place of residence, and each voter may subscribe to one nomination for such office to be filled, and no more."*fn1

Section 10-4 spells out the formal details for nominating petitions. It also provides that the petition shall be signed by the qualified voters

"in their own proper persons only, and opposite the signature of each signer his residence address shall be written or printed (and if a resident of a city having a population of over 10,000 by the then last preceding federal census, the street and number of such residence shall be given) * * *. Standard abbreviations may be used in writing the residence address, including street number, if any. No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with."

The Section additionally demands a signed certification by a qualified voter of the ward stating that the signatures on the sheet were signed in his presence, were genuine, and that they are otherwise adequate and regular. Finally, Section 10-4 specifies that the sheets containing nominating signatures.

"before being presented to the electoral board or filed with the proper officer of the electoral district or division of the state or municipality, as the case may be, shall be neatly fastened together in book form, by placing the sheets in a pile and fastening them together at one edge in a secure and suitable manner, and the sheets shall then be numbered consecutively. The sheets shall not be fastened by pasting them together end to end, so as to form a continuous strip or roll. A petition, when presented or filed, shall not be withdrawn, altered, or added to, and no signature shall be revoked except by revocation in writing * * *."

The time and manner for filing and handling nomination petitions are set forth in Section 10-6 of the Article. In the case of a Chicago aldermanic election, the nomination papers are to be filed with the Chicago Board of Election Commissioners, at least 50 days (now 64 days) but not more than 85 days (now 98 days) prior to the day of election. Under Section 10-7, all nomination papers "when presented or filed shall be open, under proper regulation, to public inspection," and the Board of Election Commissioners must preserve them not less than 6 months.

The Election Code next lays down the basic rules for the disposition of objections to nominating petitions. Section 10-8 permits "any legal voter of the political subdivision" to file an "objector's petition together with a copy thereof" to challenge the validity of any nominating petition "within 5 days after the last day for filing the certificate of nomination or nomination papers." The objector's petition is expected to reveal the identity of the objector, "the nature of the objections to the * * * nomination papers in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board." Within 24 hours after receipt of the objector's petition, the board must transmit by registered mail the copy of that document to the candidate whose nomination is challenged.

Within 24 hours after receiving the nomination papers and the objector's petition, the Board of Election Commissioners is required by Section 10-10 to "send a call by registered mail" to the objector and candidate, with a copy of the call also served by the sheriff upon them. The call must state the day, hour, and place of the hearing on the objections, and the hearing must not be less than three nor more than five days after the receipt of the nomination papers and the petitions. On the first day of the hearing, the Board is required to "adopt rules of procedure for the introduction of evidence and the presentation of arguments." At the hearing, the Board is required to consider "whether the nomination papers are in proper form, * * * filed within the time and under the conditions required by law," and whether the nomination papers are genuine and valid. The Board must generally "decide whether or not the * * * nominating papers on file are valid or whether the objections thereto should be sustained * * *." At the time of the election presently before this Court, the decision of a majority of the Board was "final." However, in May 1967, this Section was amended to require the Board to make written "findings" and to "state in writing which objections, if any, it has sustained." At the same time, judicial review has been provided by Section 10-10.1 in the appropriate county circuit court upon petition by either the candidate or objector within 10 days after the Board's decision.

The 1967 aldermanic election was scheduled for Tuesday, February 28. Under the foregoing provisions of the Illinois Election Code, nominating petitions were due by Monday, January 9, and the deadline for objections was Saturday, January 14. The hearings were required to begin between Tuesday, January 17, and Thursday, January 19. The parties have cited no statutory deadline for the Board's decision, which was apparently made here on Saturday, January 21, which was seven days after the last objections were received and thirty-eight days prior to the election.

The twelve plaintiff candidates submitted timely voter petitions. In accordance with usual custom, the objections thereto were filed on the last two permissible days, namely, Friday and Saturday, January 13 and 14. They included objections to improper form of the nomination petition, invalidity of nominators' signatures, improper circulation of petition or invalid signature of circulator. Copies of the objections and call were sent by registered mail to the plaintiff candidates on Saturday, January 14, and received on Monday, January 16, except that plaintiff Lonski did not receive his set until Tuesday, January 17. The calls were also served by the sheriff on or before Sunday, January 15.

The district court found that

"because of the manner in which the Election Code has structured the time requirements for filing objections and notifying candidates of said objections as specified above, plaintiff-candidates and all other candidates in past elections held under Illinois law as referred to above did not, and will not under these laws, receive copies of objections to their petitions until the Monday before the Tuesday which is the first day of hearings on said objections." Finding 22.

After the Board heard objections to the nominating petitions, 25 seasoned clerks and two attorneys of the Board checked the petitions against its records, particularly the nominators' signatures in the precinct binder cards. The precinct binders and master file of voter registration cards contain the signatures of registered voters in Chicago and are kept in the Board's offices. The precinct binders contain the original voter registration cards by precinct and the master file contains alphabetized copies of such cards. The clerks used 9 abbreviations in making reports on the validity of objections.*fn2 These reports were noted on the nominating petitions, the objectors' petitions or both. Defendants themselves conducted only random or spot signature checks with the precinct binders but were present throughout the checking process and usually approved the checkers' reports. In accord with Board policy, only one objection was supposed to be counted as to each assailed signature, but apparently on occasion signatures were invalidated for a reason different from the objectors'. Also, highly technical reasons were used in disqualifying some signatures.

Defendants did not permit the copying or inspection of nomination papers after Saturday, January 14, the last day for filing objections thereto. Only defendants and their employees were present when the signatures of the nominating petitions were compared with the signatures in the precinct binders. Candidates or their representatives were not permitted to be present during the checking of objections to the ...


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