class members voted against Halperin. In this suit plaintiffs seek to vindicate their right to vote, not their interest in having a particular person hold a particular office.
Defendants also argue that the interests of the named plaintiffs are actually antagonistic to the class. They contend that the Drainage District must indemnify defendants for any damages awarded to plaintiffs and the Drainage District would thus be forced to assess the class members in order to pay the award. As support, defendants cite Coleman v. Smith, 814 F.2d 1142 (7th Cir. 1987).
Defendants base their argument on an unsound premise and a misapplication of the Coleman case. The indemnification statute interpreted in Coleman provided that a municipality must indemnify its employees for liabilities incurred while they acted within the scope of their employment. It is true that the defendants in this case acted within the scope of their role as de facto commissioners and, in the case of Schwartz, as counsel for the Drainage District. The statute that applied in Coleman, however, does not apply to drainage districts, and no statute provides for any similarly broad guarantee of indemnification even for legally-elected commissioners of Illinois drainage districts. This lawsuit asks for damages for the defendants' willful actions, and the Illinois Drainage Code provides that commissioners will be indemnified only for negligent actions. Furthermore, the applicable indemnification statute does not cover punitive damages, which plaintiffs also request in this case. See Ill. Rev. Stat. ch. 42 para. 4-40 (1987). Because we do not agree that the voters of the Drainage District must eventually foot the bill for the damages plaintiffs are attempting to collect, we do not believe that the interests of the named plaintiffs and the class are antagonistic. We also reject defendants' argument that the claims of the named plaintiffs are not typical of the class. Our certification of the class extends only to deciding the issue of liability.
B. Summary Judgment
To succeed on their section 1983 claim, plaintiffs must show that defendants, acting under color of state law, deprived plaintiffs of a right guaranteed by the Constitution or statute of the United States.
The defendants clearly acted under color of state law. They admittedly held themselves out as drainage commissioners, and the Illinois Appellate Court has affirmed the Circuit Court's ruling that defendants were de facto commissioners. 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 Dis., July 28, 1989). Because the defendants acted under color of state law, the plaintiffs have stated a claim under § 1983 if defendants' conduct deprived plaintiffs of a right protected by the Constitution or statutes of the United States.
The first issue is whether the plaintiffs' right to vote for drainage commissioner is protected by the Constitution. Defendants argue that it is not, and they rely on Rodriguez v. Popular Democratic Party, 457 U.S. 1, 72 L. Ed. 2d 628, 102 S. Ct. 2194 (1981). We do not find Rodriguez persuasive in this case. At issue in Rodriguez is the manner in which a vacancy is filled in the Puerto Rico legislature. Defendants in that case argued that appointing a replacement, instead of holding an election, violates the Constitution. Rodriguez holds that the Constitution permits states to provide that some offices will be filled by appointment instead of elections. Id. at 14. When state law provides, as it does here, that a certain office will be filled by election, the holding of Rodriguez does not apply.
Plaintiffs argue that when state law provides that an office is elective, then the Constitution protects that state-created right to vote. They rely on Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 74 L. Ed. 2d 504, 103 S. Ct. 368 (1982), where plaintiffs successfully contended that Georgia officials violated the Constitution by appointing someone to fill a vacant office instead of calling a special election as a Georgia statute required. The Fifth Circuit held that the substantive component of the due process clause forbids state officials to disenfranchise the state electorate in violation of state election law. Id. at 708. Thus, while Rodriguez does not require that states select all their public officials by holding elections, Duncan forbids state officials to circumvent state laws that require them to fill offices by elections.
We agree with plaintiffs' general proposition that when a state provides that an office will be filled by holding elections, the state creates a right to vote that the Constitution protects. The next question is whether plaintiffs were deprived of that right, and if so, whether defendants are responsible for that deprivation.
Plaintiffs contend that section 4-5 imposes on the commissioners a duty to call elections. They contend that by intentionally refraining from calling elections, the commissioners violated that duty and deprived plaintiffs of their state created right to vote for drainage commissioner. We do not read the statute in the manner plaintiffs suggest.
Section 4-5 provides that "commissioners for all districts . . . shall be elected by the adult owners of land in the district in the manner provided by this Section." Ill. Rev. Stat. ch. 42, para. 4-5 (1987). Therefore, the due process clause of the Fourteenth Amendment protects the plaintiffs' right to an election "in the manner provided by this Section." As plaintiffs suggest, the statute does provide in the first instance that the commissioners shall call annual elections. Yet it also provides that if the commissioners do not call elections, then the landowners may do so:
In any case where the commissioners have failed to give notice and to hold an election as provided in this Section, the circuit court of the county in which the district is organized may, on the petition of any owner of land in the district, designate the time and place for a special election.