The opinion of the court was delivered by: MORAN
JAMES B. MORAN, UNITED STATES Chief JUDGE
Plaintiffs Bonita Spinka ("Spinka") and Karl Halperin ("Halperin") bring this action under 42 U.S.C. § 1983 alleging that their civil rights were violated when defendants Judith Brill, Robert Schlossberg, John Alden, and Berle Schwartz failed to hold elections for the position of drainage commissioner. We have before us plaintiffs' motion to certify a class, as well as the parties' cross-motions for summary judgment. For the reasons stated herein, we grant plaintiffs' motion for class certification and defendants' motion for summary judgment.
Defendants Brill, Schlossberg and Alden served as commissioners of Union Drainage District No. 1 (the "District") and hired defendant Schwartz to be the District's counsel. Organized in 1913, the District covers approximately 3 of the 25 miles of the middle fork of the North Branch of the Chicago River. Under Illinois law, the Drainage District must be managed by three commissioners, elected for staggered three-year terms. Ill. Rev. Stat. ch. 42, para. 4-5 (1987).
The commissioners named as defendants in this suit, however, were not elected to their positions. At the time they first began to serve, there had been no election since 1959 when Dudley Dewey and two other individuals were elected commissioners. Before his death Dewey appointed Ralph Brill as District commissioner. On April 23, 1983, Ralph Brill appointed his wife, Judith Brill, and resigned, leaving her as the only remaining commissioner. On May 8 of that same year, Brill appointed Schlossberg to the position. Brill and Schlossberg then hired Schwartz to act as counsel for the District. In May 1985, Brill and Schlossberg appointed Alden to fill the one position left vacant.
While in office, the defendants decided to hire contractors to clean up the middle fork of the North Branch of the Chicago River. Their decision rendered the District liable for $ 300,000 in expenses, including $ 30,000 in legal fees payable to defendant Schwartz. To pay for these expenses, the commissioners assessed the landowners of the District.
Plaintiff Halperin contested the assessment in state court. The Circuit Court found that the defendants were de facto commissioners and upheld both the annual and the special assessments levied by defendants. The Illinois Appellate Court affirmed, In The Matter of Union Drainage District No. 1 of the Township of Deerfield, County of Lake and of Northfield, County of Cook, No. 2-88-0200, (Ill. App. 2d Dist., July 28, 1989).
The Drainage Code provides that landowners within the District shall elect the commissioners. Ill. Rev. Stat. ch. 42, para. 4-5 (1987). Plaintiffs are two of approximately 1,800 eligible landowners. They allege that defendants conspired to deprive the property owners of their right to vote and move to certify a class of all landowners entitled to vote for commissioners between January 1, 1985 and the present.
Finally, plaintiffs and defendants both move for summary judgment on the issue of liability. For the following reasons, we grant the motion to certify the class, grant defendants' motion for summary judgment, and deny plaintiffs' motion for summary judgment.
Plaintiffs have moved that we certify a class consisting of all persons, other than the defendants, who were entitled to vote for commissioners of Union Drainage District No. 1 at any time between January 1, 1985 and the present.
Defendants object to making this a class action. For the following reasons, we certify a class consisting of all persons, excluding defendants, who were eligible to vote for the office of commissioner in the two-year ...