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Roti v. Washington

OPINION FILED OCTOBER 15, 1986.

FRED B. ROTI ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

HAROLD WASHINGTON ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES, (JACQUELINE VAUGHN ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

On June 6, 1986, Alderman Evans of the city council of the city of Chicago proposed a four-part resolution to amend several of the rules of the city council and change the jurisdictions, memberships and chairmanships of the council committees. Following the council vote, Mayor Harold Washington declared that the resolution passed. Plaintiffs, 25 aldermen who voted against the resolution, then filed this suit against the mayor and the 25 aldermen who voted in favor of the resolution. They seek a judgment declaring that the resolution failed and that the committees retained the chairmen, memberships, and jurisdictions that they had prior to June 6, 1986.

The trial court granted defendants' motion for summary judgment on the grounds that the resolution passed and the mayor's rulings were proper. However, the trial court also stayed the effect of its order until this court should have an opportunity to rule on appeal from the order. Defendants appeal from the stay order, and plaintiffs cross-appeal from the decision to grant defendants' motion for summary judgment. The stay order expires under its own terms with our decision on the merits of plaintiffs' cross-appeal. Therefore, we do not address the propriety of the stay order.

I

In 1981 the city council redistricted Chicago wards. A group of Chicago citizens filed a suit in Federal court asserting that the remap violated the Voting Rights Act (42 U.S.C. § 1971 et seq. (1982)). The Federal district court ordered minor changes in ward boundaries, and the plaintiffs therein appealed. (Ketchum v. Byrne (7th Cir. 1984), 740 F.2d 1398, 1401-02, cert. denied (1985), 471 U.S. 1135, 86 L.Ed.2d 692, 105 S.Ct. 2673.) Aldermanic elections were held in April 1983 while the appeal was pending. On May 2, 1983, at the first council meeting after the elections, 29 of the aldermen, including all of the plaintiffs in the instant case, voted to change the number, jurisdictions, memberships, and chairmen of the committees of the city council. They then voted in favor of a revised version of council Rule 36: under the council rules before May 1983, a vote of a simple majority was sufficient to remove committee chairmen; under the revised rule, a vote of two-thirds of the aldermen was necessary to remove committee chairmen. The 29 aldermen then voted to re-enact council Rule 48, which required a vote of two-thirds of the aldermen to change any rule. This court upheld the validity of the actions of the 29 aldermen. Roti v. Washington (1983), 114 Ill. App.3d 958, 971, 450 N.E.2d 465.

In August 1984 the United States Court of Appeals for the Seventh Circuit found that the remap ordered by the district court did not correct the violations of the Voting Rights Act. (Ketchum v. Byrne (7th Cir. 1984), 740 F.2d 1398, 1412.) In December 1985 the district court approved a new ward map that substantially altered the boundaries of seven wards, and it ordered special elections for those wards. The special elections took place in March and May 1986.

Shortly after the new members of council were seated, Alderman Evans proposed the resolution at issue in this case. In the first part of the resolution, he proposed an amendment of Rule 48 to allow amendment of the rules by the vote of a simple majority. Defendant aldermen voted in favor of the proposed amendment, and plaintiff aldermen voted against the proposal. Mayor Washington voted in favor of the amendment and declared that the first part of the resolution passed, 26 votes to 25 votes. Plaintiff Alderman Burke challenged the ruling of the chair, arguing that a vote of two-thirds of the aldermen was needed to pass the resolution. Defendant aldermen voted to sustain the mayor's ruling, and plaintiff aldermen voted to overrule. Mayor Washington voted to sustain the ruling and declared that his ruling had been sustained. Alderman Burke again challenged the ruling, arguing that the mayor could not vote to sustain his own ruling. Again plaintiffs voted to overrule the mayor, defendants voted to sustain, and Mayor Washington declared that his ruling was sustained by a vote of 26 to 25.

In the second part of his resolution, Alderman Evans proposed an amendment of Rule 36 to allow removal of committee chairmen by a vote of a simple majority of the council. Defendants voted in favor of the second part of the resolution, and plaintiffs voted against it. Plaintiffs again challenged the chair's ruling that the resolution passed, and the same vote ensued. In the third and fourth parts of the resolution, Alderman Evans proposed changes in the number, jurisdictions, memberships, and chairmen of the committees of the city council. Plaintiffs again voted against parts three and four of the resolution, and they again challenged the mayor's rulings that those parts of the resolution passed.

II

Plaintiffs argue on appeal that, under the rules of the city council, they remain chairmen of the council committees. Defendants contend that the trial court did not have jurisdiction to hear this case because the case presents a political question and the plaintiffs have not alleged any judicially cognizable injury.

• 1 Illinois circuit courts have jurisdiction over all "justiciable matters." (Ill. Const. 1970, art. VI, sec. 9.) The doctrine of justiciability in Illinois closely parallels the doctrine of justiciability developed in the Federal courts. (See, e.g., Lynch v. Devine (1977), 45 Ill. App.3d 743, 747, 359 N.E.2d 1137.) Both Illinois courts and Federal courts have held that they lack jurisdiction to decide political questions. (Metzenbaum v. Federal Energy Regulatory Com. (D.C. Cir. 1982), 675 F.2d 1282, 1287; Zurn v. City of Chicago (1945), 389 Ill. 114, 126, 59 N.E.2d 18; Malkin v. City of Chicago (1955), 6 Ill. App.2d 151, 155-56, 127 N.E.2d 145.) Our supreme court has stated:

"It is not within the jurisdiction of a court of equity to interfere with the public duties of the departments of government. [Citation.] Its jurisdiction pertains only to questions of the maintenance of civil rights, — property rights, as contradistinguished from political rights. [Citations.] It can have no jurisdiction to determine political questions between the mayor and council of a city concerning the appointment and removal of officers, nor can it exercise jurisdiction in determining the right of a party to an office." (Heffran v. Hutchins (1896), 160 Ill. 550, 554, 43 N.E. 709.)

However, our supreme court has also stated: "The mere fact that political rights and questions are involved does not create immunity from judicial review." Donovan v. Holzman (1956), 8 Ill.2d 87, 93, 132 N.E.2d 501.

The Supreme Court of the United States traced guidelines for determining whether a case presents a non-justiciable political question in Baker v. Carr (1962), 369 U.S. 186, 7 L.Ed.2d 663, 82 S.Ct. 691. "The nonjusticiability of a political question is primarily a function of the separation of powers," which must be decided following "case-by-case inquiry." (369 U.S. 186, 210-11, 7 L.Ed.2d 663, 682, 82 S.Ct. 691, 706.) Therefore, we have no jurisdiction to decide a question which is appropriately resolved by a branch of government other than the judiciary. The court listed six different grounds for finding that the judiciary should not decide a given question. (369 U.S. 186, 217, 7 L.Ed.2d 663, 686, 82 S.Ct. 691, 710.) Defendants maintain that we lack jurisdiction to decide this case under the first test listed in Baker because there is a "textually demonstrable constitutional commitment of the issue" to the city council. 369 U.S. 186, 217, 7 L.Ed.2d 663, 686, 82 S.Ct. 691, 710.

In Rock v. Thompson (1981), 85 Ill.2d 410, 426 N.E.2d 891, petitioners contended that the purported election of a senator to the office of president of the Senate did not comply with Senate rules. Article IV, sec. 6(d), of the Illinois Constitution of 1970 provides in part: "Each house shall determine the rules of its proceedings * * * and choose its officers." Relying upon this constitutional provision, respondents in Rock argued that the court had no jurisdiction to "`enter into the legislative thicket' on matters relating to the organization and operation of the Senate, a legislative body." (85 Ill.2d 410, 417, 426 N.E.2d 891.) The court rejected this argument stating that "the doctrine of separation of powers does not prevent the court from ascertaining compliance with or mandating performance of constitutional duties" (85 Ill.2d 410, 417, 426 N.E.2d 891), and held that it had jurisdiction to decide whether the president of the Senate had been elected in accord with Senate rules. 85 Ill.2d 410, 419, 426 N.E.2d 891.

• 2 Section 3-11-11 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 3-11-11) grants city councils the power to make their own rules, but neither the Constitution of Illinois nor Illinois statutes expressly mention the creation of council committees. The defendants argue that "the constitution and statutes of Illinois leave the creation and membership of City Council committees to the unfettered political discretion of the Council itself." Since the constitutional language cited above in Rock was held not to create in the selection of a senate president a "textually demonstrable constitutional commitment of the issue" sufficient to deprive the court of jurisdiction, a fortiori the statutory language of the Illinois Municipal Code does not deprive this court of jurisdiction over the instant case involving the selection of the city council committees.

The court in Rock asserted:

"`[W]hen a constitutional or statutory violation on behalf of the executive or legislative branch is asserted, the courts obviously have the obligation to correct it.'" (Rock v. ...


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