plan and warned that if the commission failed to do so by January 6, 1992, that court's "only alternative" would be to order an at-large election for the Illinois Senate and House of Representatives. Id., slip op. at 14-15.
Various defendants or prospective defendants have filed responses opposing each of the plaintiffs' notions. Among those opposing the plaintiffs' motion for leave to file a third amended complaint are the original defendants and Illinois Attorney General Roland W. Burris, whom the plaintiffs seek to add as a defendant.
Federal Rule of Civil Procedure 15(a) provides that once responsive pleadings have been filed in a case, such as the defendants' motions to dismiss were here, a party may only amend its pleadings with leave of court, but that such leave "shall be freely given when justice so requires." Whether to grant leave to amend pleadings "is a matter purely within the sound discretion of the district court." J.D. Marshall lnt'l, Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th Cir. 1991) (citing Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)). Denial of such leave is proper when the amendment is sought for purposes of delay, harassment or other improper motive, when the amendment would not cure previously found deficiencies, or when the amendment would be futile. Id.
The court has not passed, upon the sufficiency of any of the plaintiffs' prior complaints filed in this case. Therefore, for purposes of deciding whether plaintiffs should be allowed to file their third amended complaint, the court liberally reviews that complaint to determine whether it states a viable claim, without prejudging any potential motions to dismiss which the defendants might file.
The proffered third amended complaint contains three counts: Count I seeks declaratory and injunctive relief regarding alleged violations of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1971 et seq.; Count II seeks declaratory and injunctive relief regarding alleged 14th Amendment due process violations; and Count III seeks a declaration that the Redistricting Commission's October 4 redistricting plan is valid.
The defendants contend, among other points, that the third amended complaint does not cure the plaintiffs' lack of standing to pursue this litigation.
Federal judicial power is limited under Article III of the Constitution to adjudication of "cases and controversies." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). That limitation includes a requirement that the plaintiff have standing to bring the action, which in turn requires that the plaintiff "personally has suffered some actual or threatened injury." Id. at 471-72 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979)).
Analysis of a party's standing is "gauged by the specific common-law, statutory or constitutional claims that a party presents. . . . [with] 'careful judicial examination . . . to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.' " International Primate Protection League v. Administrators of Tulane Educ. Fund, 114 L. Ed. 2d 134, 111 S. Ct. 1700, 1704 (1991) (emphasis in original) (quoting Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)). The standing requirement is applicable to declaratory judgment actions under 28 U.S.C. § 2201, with an emphasis on the required immediacy of the threatened injury. Harris Trust and Savings Bank v. E-II Holdings, Inc., 926 F.2d 636, 640 n.14 (7th Cir. 1991). Standing under the Voting Rights Act for private litigants -- those other than the United States Attorney General -- is limited to "aggrieved persons" seeking to enforce their voting rights. 42 U.S.C. § 1973a; Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989).
The Redistricting Commission and its Republican majority are not suing as voters and therefore lack standing under the Voting Rights Act. Illinois Secretary of State Ryan and the Illinois State Board of Elections lack standing under the Act for the same reason.
There is a more general problem with these present and prospective plaintiffs; the complaint does not identify any potential injuries to federal rights of any sort which they might suffer and no such injuries are apparent. No potential injury to the Redistricting Commission, Ryan or the State Board of Elections has been alleged if the Commission's redistricting plan is not promptly declared valid or the ongoing proceedings ordered by the Illinois Supreme Court are allowed to continue.
It is not clear that the Redistricting Commission is a necessary party if this federal litigation is allowed to proceed. The redistricting plan can be redrawn, to the extent necessary, by a court or by parties to a proper challenge to the plan. See, e.g., Hastert v. State Board of Elections, No. 91 C 4028 (N.D. Ill. Nov. 6, 1991); (court adopted modifications drawn by parties); Ketchum v. City Council, 630 F.Supp. 551 (N.D. Ill. 1985) (same); Rybicki v. State Board of Elections, 574 F.Supp. 1082 (N.D. Ill. 1982) (same); Schrage v. State Board of Elections, 88 Ill. 2d 87, 430 N.E.2d 483, 58 Ill. Dec. 451 (1981) (court modified two state legislative districts and directed the Board of Elections to implement the changes); but see People ex. rel Burris v. Ryan, No. 72662, slip op. at 11, 14 (Ill. S. Ct. Dec. 13, 1991) (remanding with directions the presumptively valid redistricting plan to the Redistricting Commission).
Indeed, the litigation could not proceed if the only plaintiffs were the Redistricting Commission, Ryan, and the State Board of Elections. The third amended complaint, however, would add Reed, a voter and American citizen of African heritage, as a plaintiff. That complaint alleges that Reed, and a "Jefferson" mentioned in paragraph 51(a) without further identification, as well as other voters similarly situated will suffer a host of injuries to their voting rights. The court recognizes the liberal notice pleading of Fed. R. Civ. P. 8(a) and is keenly and vigilantly "aware of the singular importance of the right to vote in a republic . . . ." Ketchum, 630 F. Supp. at 568. On the present record, it is not clear beyond doubt that Reed will be unable to state a federal claim with regard to the redistricting plan or process.
Furthermore, on a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Perkins, 939 F.2d at 466. The court finds, therefore, that the interests of justice will be served by granting the plaintiffs leave to file their third amended complaint, and such leave is granted.
Additionally, from an historical perspective, the numerosity and diversity of the more than fifty named defendants suggest that David Reed will not long stand virtually alone as the primary plaintiff. Intervention and realignment are not strangers to redistricting litigation once afoot before a court carrying out its traditional adjudicative role.
The Redistricting Commission, Ryan and the State Board of Elections will be treated as nominal parties to the litigation. While they appear to have no legally cognizable rights in this action, their presence may serve a useful, if not mechanical, role in the eventual disposition of the matter. Their roles, however, like that of other potential parties, may be the subject of future motions for realignment or dismissal. Pursuant to Fed. R. Civ. P. 21, parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just.
The plaintiffs' requests for injunctive relief, contained in the third amended complaint and a separate motion, are taken under advisement pending further development of the record.
For the above reasons, the motion to file a third amended complaint is granted, rendering the other pending motions moot with the exception of the motion for a temporary restraining order and a preliminary injunction, upon which the court reserves its ruling.
IT IS SO ORDERED.
CHARLES R. NORGLE, Judge
United States District Court
DATED: December 30, 1991