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ILLINOIS LEGISLATIVE REDISTRICTING COMMN. v. LAPAI

December 30, 1991

ILLINOIS LEGISLATIVE REDISTRICTING COMMISSION, GEORGE H. RYAN, as Illinois Secretary of State, DAVID REED, AL JOURDAN, FRANK WATSON, ROBERT CHURCHILL, GENE HOFFMAN and DALLAS INGEMUNSON, Plaintiffs,
v.
GARY J. LaPAILLE, CHAIRMAN OF THE ILLINOIS STATE DEMOCRATIC CENTRAL COMMITTEE, on behalf of the DEMOCRATIC PARTY OF ILLINOIS, ROLAND W. BURRIS, in his capacity as ILLINOIS ILLINOIS ATTORNEY GENERAL, JOSEPH GARDNER, ROBERT L. LUCAS, LOVANA JONES, DAN BARREIRO, WILLIAM SHEPARD, JR., JOHN LEE JOHNSON, GWENDOLYN SCOTT, LAURA BARTH, WARREN DORRIS, MARVIN FRENCH, JAYME CAIN, PERCY CONWAY, JOSEPH BELMAN, LUIS ALBARASIN, CROTIS TEAGUE, JR., HENRY LANDRAU, CAROLYN TONEY, FRED SMITH, CHARLIE WILSON, JR., BOBBY E. THOMPSON, HENRY MARTINEZ, ROBERTO GONZALEZ, ANITA GARCIA, MARIA A. MORALEZ, MARTA CALDERO, CONSUELO ZEMAITIS, J. RICHARD MOTA, DAVE DURAN, THERESA FRAGA OROSCO, BEVERLY AREA PLANNING ASSOCIATION, WILLIAM GAINER, MT. GREENWOOD CIVIC ASSOCIATION, CURT MENTZER, PAULA DERBAK, SHARON HANLON, THOMAS C. HYNES, JEREMIAH JOYCE, JAMES KEANE, THADDEUS "TED" LECHOWICZ, ROBERT J. BUGIELSKI, the POLISH AMERICAN CONGRESS INC., REBECCA W. OWENS, individually and as President of the ILLINOIS WOMEN'S POLITICAL CAUCUS, GAY E. BRUHN, individually and as President of the ILLINOIS NATIONAL ORGANIZATION FOR WOMEN, MARY FINGER, individually and as Chair of the Women Network, UNITED FOOD AND COMMERCIAL WORKER UNION, MARISA L. L'HEUREUX, individually and as President of the CHICAGO NATIONAL ORGANIZATION FOR WOMEN, CAROL TRAVIS, individually and as President of LOCAL 719, UNITED AUTO WORKERS UNION, WILDRED G. STEWART, individually and as President of the AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, SARA TOMPSON, individually and as President of the CHAMPAIGN COUNTY NATIONAL ORGANIZATION FOR WOMEN, MARY MARI ANNA MURPHY, individually and as President of the TWIN CITIES BUSINESS AND PROFESSIONAL WOMEN, AVA GEORGE, individually and as President of THE AGENDA, SANDRA M. SCOTT, individually and as President of the ILLINOIS FEDERATION OF BUSINESS AND PROFESSIONAL WOMEN'S CLUBS, BRUCE CROSBY, MIGUEL DEL VALLE, JIM MCPIKE, JEROME JOYCE, EARTHARlN COUSIN, TOM LYONS, individually and on behalf of all others similarly situated, Defendants.


NORGLE


The opinion of the court was delivered by: CHARLES R. NORGLE

ORDER

 Before the court are the defendants' motion to dismiss plaintiffs' first amended complaint and the plaintiffs' motions to join necessary parties, for leave to file a third amended complaint, *fn1" and for a temporary restraining order and preliminary injunction on the third amended complaint. For the following reasons, the plaintiffs' motion to file a third amended complaint is granted, rendering the remaining motions moot with the exception of the plaintiffs' motion for a temporary restraining order and preliminary injunction, on which the court reserves its ruling.

 FACTS

 The original plaintiffs -- the Illinois Legislative Redistricting Commission ("Redistricting Commission") and its five Republican members, Al Jourdan, Frank Watson, Robert Churchill, Gene Huffman and Dallas Ingemunson -- brought this declaratory judgment action under 28 U.S.C. § 2201. The action sought a declaration that the redistricting plan for the Illinois General Assembly, approved by the Redistricting Commission on a 5-4 vote along party lines, complied with various provisions of the United States Constitution, the Voting Rights Act (42 U.S.C. § 1973), and Article IV, § 3 of the 1970 Illinois Constitution, and was therefore valid. *fn2"

 The original defendants are the four Democratic members of the Redistricting Commission, Jim McPike, Jerome Joyce, Ertharin Cousin and Tom Lyons; the Illinois State Democratic Central Committee chairman, Gary LaPaille; an African-American registered voter, Bruce Crosby; and a state senator of Hispanic origin, Miguel Del Valle. Each defendant allegedly expressed public opposition to the redistricting plan before it was formally approved.

 The Redistricting Commission was constituted pursuant to Art. IV, § 3(b) of the Illinois Constitution because following the federal ten-year census, the General Assembly failed to adopt a redistricting plan by June 30, 1991. The Redistricting Commission, metaphorically, a decennial Brigadoon, initially had only eight members, but after it was unable to approve a plan by August 10, 1991, a ninth member, Al Jourdan, was added by random selection. See Ill. Const. of 1970, art. IV, § 3(b), which sets forth procedures for selecting commission members. On October 4, 1991, the Redistricting Commission approved a redistricting plan and then passed a resolution authorizing this lawsuit, which was filed that day.

 A motion to dismiss the action was filed on October 25, 1991 by LaPaille, joined by McPike, Joyce, Cousin and Lyons. Del Valle filed a separate motion to dismiss the same day. Both dismissal motions argue that the Redistricting Commission and its members lack standing, among other arguments.

 While the dismissal motions were pending, the plaintiffs filed a series of motions. First, on November 7, 1991, the plaintiffs moved for joinder of Illinois Secretary of State George H. Ryan and the Illinois State Board of Elections as defendants with immediate realignment as plaintiffs pursuant to Federal Rules of Civil Procedure 19 and 15. The plaintiffs also moved that day for leave to file a second amended complaint adding scores of additional defendants. Then on December 18, 1991, the plaintiffs moved for leave to file a third amended complaint adding David Reed, an Illinois voter of "African-American heritage," as a plaintiff and seeking emergency declaratory and injunctive relief. Also on December 18, the plaintiffs moved for a temporary restraining order and preliminary injunction, urging this court to exercise exclusive jurisdiction over the redistricting process and to enjoin the defendants from participating in ongoing proceedings before the Redistricting Commission.

 The plaintiffs' December 18 motions were spurred by an Illinois Supreme Court ruling the previous Friday remanding the redistricting plan to the Redistricting Commission for hearings and consideration of alternative plans. People ex. rel Burris v. Ryan, No. 72661 (Ill. S. Ct. Dec. 13, 1991). The Illinois court also ordered the Redistricting Commission to adopt a 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. *fn3"

 DISCUSSION

 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, ...


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