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Wigoda v. Cousins

SEPTEMBER 12, 1973.

PAUL T. WIGODA ET AL., PLAINTIFFS-APPELLEES,

v.

WILLIAM COUSINS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered in the Circuit Court of Cook County on July 8, 1972, enjoining and restraining the defendants herein from participating as delegates representing certain congressional districts in the State of Illinois at the 1972 Democratic National Convention which was convened in Miami, Florida, on July 10, 1972. Defendants also appeal from another order entered in the Circuit Court of Cook County on August 2, 1972, enjoining and restraining them from participating in a caucus of the Illinois delegation to the Democratic National Convention in order to elect the Illinois representatives to the Democratic National Committee.

The issues presented for review are: (1) whether the trial judge's assertion of jurisdiction over this matter contradicted the judgment of the U.S. Court of Appeals for the District of Columbia Circuit and the opinion of the U.S. Supreme Court, if they were binding and res judicata as to the issues in this case; (2) whether the trial court's action violated fundamental constitutional rights of free political association of the defendants and the National Democratic Party; (3) whether courts of equity have jurisdiction over political controversies; and, (4) whether the trial judge's public comments in this action display a gross bias against the defendants.

Pursuant to those provisions of the Illinois Election Code dealing with the making of nominations by political parties (Ill. Rev. Stat., ch. 46, § 7-1 et seq.), a primary election was held in the State of Illinois on March 21, 1972. At this primary election, delegates and alternate delegates to the National Nominating Convention of both the Democratic and Republican parties were elected from each of the 24 congressional districts in the State of Illinois.

The plaintiffs herein are a class of 59 individuals, including blacks, Latin Americans, women and persons between 18 and 30 years of age, who were elected in the March 21, 1972, primary election as uncommitted delegates to the National Democratic Convention from the 1st, 2nd, 3rd, 5th, 7th, 8th, 9th and 11th congressional districts. Initially, it is worthy of mention that all the plaintiffs in this appeal were required by the Election Code to file on or before January 14, 1972, nominating petitions signed by at least one-half of one per cent of the qualified primary electors of the Democratic Party residing in their respective Districts, in order to have their names placed on the March 21, 1972, primary election ballot. No challenges to the plaintiffs' petitions were raised, and the primary election was held on March 21, 1972, resulting in the election of the plaintiffs by a majority of the qualified electors of the Democratic Party in their respective congressional districts. Thereafter, these results were canvassed, certified and reported in accordance with the respective provisions of the Election Code, culminating on April 18, 1972, in the proclamation of the Secretary of State that the plaintiffs herein were the elected delegates to the Democratic National Convention from their respective Congressional Districts.

The defendants herein were initially 10 individuals who filed a formal challenge of the credentials of the plaintiffs with the Acting Chairman of the Credentials Committee of the Democratic National Party on March 31, 1972. In their challenge the defendants allege the plaintiffs were not entitled to credentials for the Convention as they were in violation of certain guidelines which had been previously set forth in the Report of the Commission of Party Structure and Delegate Selection to the Democratic National Committee, which were thereafter incorporated into Article III, Part I, of the Call of the 1972 Democratic National Convention. Specifically, the defendants alleged in their challenge that the plaintiffs were first chosen as candidates and thereafter elected to be delegates and alternate delegates based on slate-making procedures which were neither open to the public nor had rules attached thereto to attract public participation. The defendants further alleged in their challenge that the plaintiffs were chosen to the exclusion of certain minorities, namely, blacks, Latin Americans, women, and persons between 18 and 30 years of age.

In view of the aforementioned challenge filed by the initial 10 defendants, the plaintiffs filed a lawsuit in the Circuit Court of Cook County on April 19, 1972, the first day following the Secretary of State's proclamation naming the plaintiffs as the duly elected delegates to the Democratic National Convention and also, by operation of law, the first day which the plaintiffs could so act in their elective office. In this lawsuit, the plaintiffs sought to enjoin and restrain the defendants who had filed the challenge with the acting chairman of the Credentials Committee of the Democratic National Party. A motion for a preliminary injunction was set for April 21, 1972, before Judge Donald J. O'Brien. The hearing on this motion, however, was not held on April 21, 1972, because the defendants filed a petition in the U.S. District Court for the Northern District of Illinois removing the cause to that court on April 20, 1972. There the cause was then assigned to Federal Judge Hubert Will. Thereafter, on April 24, 1972, the plaintiffs filed a motion with Judge Will to remand the cause to the Circuit Court of Cook County on the ground that the initial removal to the U.S. District Court was improper as there was no federal question involved. Judge Will took the motion to remand under advisement and on May 18, 1972, he issued an opinion finding no basis for federal jurisdiction. Judge Will, however, also entered a 10-day stay of his findings in order to enable the defendants to appeal therefrom. Subsequently the U.S. Court of Appeals for the 7th Circuit denied any further stays of Judge Will's finding and on June 30, 1972, dismissed the defendants' appeal on the ground that there was no basis for allowing the defendants' initial removal from the Circuit Court of Cook County to the U.S. District Court for the Northern District of Illinois.

During the period between April 24, 1972, when the instant plaintiffs filed their motion to remand the original cause to the Circuit Court of Cook County, and May 18, 1972, when Judge Will entered his opinion finding no federal jurisdiction, the defendants herein commenced yet another action in the U.S. District Court for the Northern District of Illinois. In that suit the defendants herein sought to enjoin the plaintiffs herein from any further prosecution of this action in the Circuit Court of Cook County as being violative of their First Amendment rights. That cause was assigned to Federal Judge Frank McGarr, who granted the instant defendants herein a series of non-reviewable temporary restraining orders which prevented any further action in the Circuit Court of Cook County, although such further action was contrary to Judge Will's findings wherein the cause was remanded to the Circuit Court of Cook County because there was no federal question, and the Federal Court therefore lacked jurisdiction. Finally, on June 9, 1972, Judge McGarr held a trial. At the conclusion of the trial a preliminary injunction was issued barring the defendants, who are the plaintiffs in the Circuit Court of Cook County, from proceeding with this action in the Circuit Court. The injunction issued by Judge McGarr was promptly appealed to the U.S. Court of Appeals for the 7th Circuit, where a hearing was held on June 29, 1972. Following oral argument, the court, acting from the bench, reversed the injunction granted by Judge McGarr and ordered that its mandate issue forthwith so as not to delay any action in the Circuit Court of Cook County. Cousins v. Wigoda, 463 F.2d 603.

In an attempt to stay this mandate from the U.S. Court of Appeals for the 7th Circuit, the instant defendants petitioned Justice William Rehnquist of the U.S. Supreme Court on July 1, 1972, for a stay order. Following the hearing, Mr. Justice Rehnquist denied the instant defendants' application for a stay, thus clearing the way for a continuation of this action in the Circuit Court of Cook County. At this point it is necessary to mention certain other situations which were transpiring during the course of the previously discussed litigation so as to cast full and proper perspective on the continuation of the instant litigation in the Circuit Court of Cook County from which this appeal arose. These other situations were the activities of the Credentials Committee of the Democratic National Party, and certain litigation which originated in the U.S. District Court for the District of Columbia.

As previously mentioned, on March 31, 1972, the original 10 defendants to this action filed a "Notice of Intent to Challenge" with the acting chairman of the Credentials Committee of the 1972 Democratic National Convention. In this "Notice" they stated their intent to challenge the seating of the 59 uncommitted delegates who are the plaintiffs in this action. Thereafter, these original 10 defendants filed a "Statement of Grounds of Challenge Against the Proposed `Uncommitted' Delegates to the 1972 Democratic National Convention from the Districts Encompassing the City of Chicago." On May 26, 1972, almost two months after the "Statement" was filed, Cecil F. Poole, a San Francisco attorney, was appointed as hearing officer by the acting chairman of the Credentials Committee to conduct hearings on the challenge previously filed by the instant defendants. These hearings were conducted in Chicago on May 31, June 1, and June 8, 1972, with the result being the submission of the document entitled "Findings and Reports of Cecil F. Poole, Hearing Officer to the Credentials Committee" on June 25, 1972. In his report Mr. Poole concluded the plaintiffs herein were elected in violation of certain guidelines set forth in the Call of the 1972 Democratic National Convention.

On June 30, 1972, the Credentials Committee of the 1972 Democratic National Convention, having before it the report of the hearing officer, voted to sustain the findings in the report. Moreover, the Credentials Committee recommended an "alternative" delegation chosen in private caucuses held in Chicago on June 22 and June 24, 1972, be seated to the exclusion of the duly elected delegates. The "alternative" delegation was comprised of the original 10 challengers, who were the original 10 defendants herein, and 49 other individuals, many of whom were defeated candidates for election as delegates in the March 21, 1972, primary. All 59 members of this "alternative" delegation were thereafter joined as defendants in the instant action.

Subsequently, on July 10, 1972, the question of whether to seat the duly elected Illinois delegates or to accept the recommendation of the Credentials Committee and seat the "alternative" delegation was presented to the 1972 Democratic National Convention for a vote. The Convention voted to accept the recommendation of the Credentials Committee and seat the "alternative" delegation to the exclusion of the duly elected Illinois delegation.

In mid-June, 1972, since the hearing officer appointed by the acting chairman of the Credentials Committee continually refused to consider questions of law concerning the legality of the Democratic Party Rules and Guidelines, a member of the plaintiff class, Thomas E. Keane, commenced a lawsuit against the Democratic National Party in the U.S. District Court for the District of Columbia to determine whether the guidelines upon which the plaintiff class had been challenged were constitutional. Although the original 10 defendants to the instant action were not made a party to this lawsuit, they sought to intervene and the District Court granted them leave to so intervene. Following a hearing, the District Court held three of the four guidelines upon which the challenge had been raised to be unconstitutional. On immediate appeal to the U.S. Court of Appeals for the District of Columbia, this determination by the District Court was held to be premature because no action had yet been taken by the Credentials Committee on the challenge.

As previously mentioned, the Credentials Committee did render a decision on June 30, 1972, to recommend exclusion of the plaintiff delegates. In light of this action by the Credentials Committee, the District Court for the District of Columbia on July 3, 1972, once again held a hearing and found three of the four guidelines upon which the challenge had been raised to be unconstitutional. On July 4, 1972, an appeal was again taken to the U.S. Court of Appeals for the District of Columbia. The Court of Appeals on July 5, 1972, affirmed the District Court as to the constitutionality of the one guideline which had been found constitutional and issued an injunction to prevent the plaintiffs from proceeding with the instant action in the Circuit Court of Cook County. The Court of Appeals did, however, stay its mandate for 24 hours to enable the plaintiffs to apply to the U.S. Supreme Court for a further stay. The plaintiffs applied for such a stay and also on July 6, 1972, filed a Petition for Writ of Certiorari. Following a Special Session, the U.S. Supreme Court on the evening of July 7, 1972, granted a stay of the judgment of the Court of Appeals which had enjoined the plaintiffs from proceeding with the instant action in the Circuit Court of Cook County. The Supreme Court also took the petition for writ of certiorari under advisement. Keane v. National Democratic Party (1972), 469 F.2d 563, judgment stayed, (U.S.), 34 L.Ed.2d 1.

Thereafter, following the Convention, the Supreme Court granted the petition for writ of certiorari, vacated the judgment of the Court of Appeals, and remanded the case to the Court of Appeals for the District of Columbia to determine whether the case was moot. Keane v. National Democratic Party, judgment vacated, (U.S.), 34 L.Ed.2d 73, (October 10, 1972).

On February 16, 1973, the Court of Appeals for the District of Columbia held the case as remanded by the Supreme Court moot and affirmed the judgment of the District Court for the District of Columbia.

Since the U.S. Supreme Court had stayed the judgment of the Court of Appeals for the District of Columbia which had enjoined the plaintiffs from proceeding with the instant action in the Circuit Court of Cook County on the evening of July 7, 1972, the plaintiffs served notice on the original 10 defendants as well as those who had been joined subsequent to their election as members of the "alternative" delegation that a hearing on the original complaint would be held before Judge O'Brien in the Circuit Court of Cook County on July 8, 1972. At the hearing on July 8, 1972, the defendants moved for a change of venue from Judge O'Brien, and the case thereafter was assigned to Judge Daniel A. Covelli. Following a hearing, Judge Covelli entered certain findings of fact from the evidence which had been presented to him. Based upon these findings, Judge Covelli ordered the 59 defendants (each of whom had formally been represented by counsel who was present for the hearing and each of whom had thereby submitted himself to the jurisdiction of the Circuit Court of Cook County) enjoined and restrained from acting or purporting to act as a delegate to the 1972 Democratic National Convention from the particular Congressional Districts involved, or from performing the functions of such delegates in the National Democratic Convention or in its committees.

Rather than seeking an appeal from this injunction, the record reflects the defendants on July 10, 1972, were seated as delegates to the 1972 Democratic National Convention representing the 1st, 2nd, 3rd, 5th, 7th, 8th, 9th and 11th Congressional Districts in the State of Illinois and thereafter participated as such.

Following the Convention the plaintiffs filed a motion for supplemental relief in the Circuit Court of Cook County. In this motion the plaintiffs sought to enjoin the defendants from participating in a party caucus of delegates to be held on August 5, 1972, for the purpose of selecting the Illinois representatives to the Democratic National Committee. On August 2, 1972, Judge Covelli held an evidentiary hearing in which all parties participated. At this hearing the procedure in which the defendants had been selected as the "alternative" delegation was introduced, as well as the fact that the defendants had violated the July 8, 1972, injunction by participating in the 1972 Democratic National Convention as delegates. Once again, following the hearing, Judge Covelli entered certain findings of fact in which he found the plaintiffs to be the only duly elected delegates. Thereafter the judge ordered a supplemental injunction be entered which reflected his findings of fact that the plaintiffs were the only persons entitled to participate as delegates in the August 5, 1972, party caucus of delegates, and he also restrained the defendants from performing any functions as delegates at such caucus. This appeal was thereafter taken from the orders of the trial court entered on July 8 and August 2, 1972.

The first issue presented for review is whether the trial court's assertion of jurisdiction over this matter contradicted the judgment of the U.S. Court of Appeals for the District of Columbia Circuit and the opinion of the U.S. Supreme Court, and whether they were binding and res judicata as to the issues in this case.

The defendants contend the trial court lacked jurisdiction to consider this cause. The basis for this contention by the defendants lies in their interpretation of the effect of the judgment by the U.S. Court of Appeals for the District of Columbia Circuit entered on July 5, 1972, wherein the Court of Appeals enjoined the plaintiffs from proceeding with this cause in the Circuit Court of Cook County. (Keane v. National Democratic Party (1972), 469 F.2d 563.) The defendants acknowledge such judgment was stayed by the U.S. Supreme Court on the evening of July 7, 1972. However, they attempt to limit the nature of the stay entered by the Supreme Court by asserting that nothing in the opinion of the Supreme Court suggests any intention whatsoever of permitting the plaintiffs to proceed with this cause in the Circuit Court of Cook County. Rather, the defendants contend the judgment of the Supreme Court staying the injunction of the Court of Appeals was intended solely to permit a determination of the issues to be made by the Democratic National Convention "free from judicial intervention." (Keane v. National Democratic Party (1972), 469 F.2d 563, judgment stayed, U.S., 34 L.Ed.2d 1.) The opinion does not say "free from judicial intervention," but says "absent judicial intervention, the Convention could decide to accept or reject, or accept with modification, the proposals of its Credentials Committee." The court was discussing the Federal courts and does not mention State laws, election of delegates or their rights, or the jurisdiction of State courts over their delegates. It must be recognized that the Circuit Court of Illinois was not intervening in the Convention, but only exercised its jurisdiction over the Illinois delegates and challengers under the Illinois Election Code.

The defendants further contend the Supreme Court's stay of the judgment of the Court of Appeals does not operate in any way to alter the binding and res judicata effect of that judgment, and thereby permit a collateral attack of that judgment in an Illinois court, specifically the Circuit Court of Cook County. The defendants would have this court accept their interpretation that the execution of the judgment of the Court of Appeals has been suspended by the Supreme Court's action, thereby barring any assertion of jurisdiction over this matter by an Illinois court.

At the outset, this court is requested to take judicial notice that the judgment of the U.S. Court of Appeals for the District of Columbia Circuit, upon which the defendants base their contention, was subsequently vacated by the U.S. Supreme Court and remanded to the Court of Appeals for further determination. (Keane v. National Democratic Party, 469 F.2d 563, judgment stayed, (U.S.), 34 L.Ed.2d 1, judgment vacated, (U.S.), 34 L.Ed.2d 73.) Considering first the stay order, we hold it completely froze the order of the Court of Appeals, including the injunction order directed to the Circuit Court of Illinois, thereby allowing the Circuit Court to proceed. Then came the Supreme Court order vacating the Court of Appeals order, thereby rendering said order nonexistent and a nullity, as if it never existed. It was stricken from the records and of no force or effect. Centainly such a vacated order could not be res judicata of anything. In addition there are other reasons why it is not res judicata. On February 16, 1973, the Court of Appeals determined the issues before it were moot and joined in the finding previously entered by the District Court for the District of Columbia, wherein the defendants were denied the injunctive relief which they sought. Keane v. National Democratic Party, D.C. Cir., Docket No. 72-1629 (1973).

• 1, 2 For a court to apply the doctrine of res judicata or the broader doctrine of estoppel by judgment, there are certain prerequisites which must be present. To be res judicata there must not only be an identity of the parties involved but there must also, and most importantly, be an identity of the issues. For the doctrine of estoppel by judgment to lie there must minimally be an identity of issues.

Viewing the issues and parties involved herein as compared with the issues and parties in the case upon which the defendants rely, namely, Keane v. National Democratic Party, we find a near total lack of identity as to either issues or parties. The issue which is central to the instant cause is the Illinois Election Code (Ill. Rev. Stat. 1971, ch. 46, § 7-1 et seq.), and the right of the plaintiffs who were elected pursuant to its provisions to serve in their elective office. The issue which was central to the litigation which ensued in Keane v. National Democratic Party was the constitutionality of the guidelines of the National Democratic Party, upon which the Credentials Committee for the 1972 Democratic National Convention had determined the plaintiffs herein were not in compliance. In fact, the Court of Appeals in Keane v. National Democratic Party stated:

"No violation of Illinois law is at issue here."

Likewise, the parties in the two causes differ. The plaintiff in both causes is that same class composed of those individuals elected to be delegates to the 1972 Democratic National Convention from the 1st, 2nd, 3rd, 5th, 7th, 8th, 9th and 11th congressional districts in the State of Illinois. The defendants, however, are quite different. The defendants herein are the 59 members of the "alternative" delegation, including the original 10 individuals who initiated the challenge of the plaintiffs' right to sit as delegates filed with the Credentials Committee on March 31, 1972. The defendant in Keane v. Democratic National Party, was the National ...


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