# Hattie Kendrick v. James Walder, Individually and as Mayor of the City of Cairo, Illinois

> Court of Appeals for the Seventh Circuit · December 16, 1975 · 527 F.2d 44

URL: https://www.frixlaw.com/law-library/cases/9462294

## Case

- **Full name:** Hattie KENDRICK Et Al., Plaintiffs-Appellants, v. James WALDER, Individually and as Mayor of the City of Cairo, Illinois Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 16, 1975
- **Citations:** 527 F.2d 44
- **Precedential status:** Published
- **Opinion:** Dissent by Pell
- **Judges:** Castle, Swygert, Pell
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PELL, Circuit Judge
(dissenting).
As the author of Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev’d on other grounds, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974), I am not unmindful of, nor unsympathetic with, the situation in which black citizens of Cairo, Illinois, find themselves. Nevertheless, because I think this court has incorrectly disposed of the present appeal, I respectfully dissent.
The State of Illinois has legislatively made available to most of its municipalities several forms for local administration purposes. One of these forms, the city commission plan, was adopted by Cairo, Illinois, in 1913 and has been continuously utilized since that time. In Cairo, a community of some 6000 persons, the mayor and four commissioners are nominated and elected at-large pursuant to the statutory provisions. Illinois Revised Statutes, Chapter 24, Section 4-3-2. Some- 64 other communities in the state qualifying as being under the statutory maximum of 200,000 population (4-2-1) have elected to utilize the commission form of local government and presumably each nominates and elects its governing officials in the same manner that Cairo does.
The development of commission form of city government and its companion, manager administration, were the reform development of small businessmen according to James Weinstein. 1 The first commission government occurred in Galveston, Texas, and followed the ruinous situation in which that city found itself after destruction by a great tidal wave. Looking upon the city as a great ruined business, a group of businessmen “followed the most efficient form of organization known to them: the business corporation.” As adopted, the Galveston plan provided for a five man commission vested with the combined powers of mayor and board of aldermen. Each commissioner headed a city department and functioned as legislator and administrator. (This is essentially the situation under the Illinois statute.) Commission government spread rapidly and by 1913 over 300 cities had adopted a similar plan which now had become known for some reason as the “Des Moines Plan.” Indeed, “their efforts bore fruit when an act passed the Pennsylvania legislature requiring all cities of the third class to adopt commission charters.” Weinstein at 99. (Emphasis in the original.)
*52 According to historian Samuel P. Hays, 2 reform in the Progressive Era involved substantial debate over the system of representation. “The ward form of representation was universally condemned on the grounds that it gave too much influence to the separate units and not enough attention to the larger problems of the city.” It was argued that in city-wide representation elected officials could consider the city as a unit. Conversely, “pre-reform officials spoke for their constituencies, inevitably their own wards which had elected them, rather than for other sections or groups of the city.” Hays at 157.
While the so-called reform movement undoubtedly had as motivational factors desires to eliminate what might be termed provincialism as well as corruption and to promote efficiency in municipal government, the commission plan, over and above certain rather obvious limitations, 3 although constituting democracy in the Websterian sense of rule of the majority, rather clearly excluded segments of the populace from participation in the political process. This did not go unnoticed at the time.
*53 “The success of the drive for centralization of administration and representation varied with the size of the city. In the smaller cities, business, professional, and elite groups could easily exercise a dominant influence. Their close ties readily enabled them to shape informal political power which they could transform into formal political power.” Hays at 164.
*52 “Other opponents, particularly political machines in Northern cities, Socialists, and trade unionists, had more specific grievances. Their fears and opposition came from a belief that the commission and manager charters would, by design or not, eliminate workers or their representatives from active participation in the process of government.
“Three major features of the plans bore the brunt of Socialist criticism: the elimination of ward representation, which meant the end of minority representation.” Weinstein at 107.
“The nonpartisan ballot, a feature of most commission-manager plans and widely heralded as a great advance in democracy, also tended to operate against minority groups.” Weinstein at 110.
“There were many, besides the Socialists, who thought commission government had already changed the system of representation and had guaranteed business rule. Most of these men did not oppose the new plans in toto, but only wished to assure that the commissions reflect the makeup of the entire community. To this end, they proposed proportional representation in the elections to the Commission, and revived the Proportional Representation League to lead the fight.” Weinstein at 112.
“In Dayton, where opposition to the unrepresentative council developed rapidly after the adoption of the manager charter, proportional representation failed because business groups opposed a reform which they believed could benefit only Socialists and Negroes.” Weinstein at 113.
“Although reformers used the ideology of popular government, they in no sense meant that all segments of society should be involved equally in municipal decision-making. They meant that their concept of the city’s welfare would be best achieved if the business community controlled city government. As one businessman told a labor audience, the businessman’s slate represented labor ‘better than you do yourself.’ ” Hays at 154.
“Lower- and middle-class elements felt that the new city governments did not represent them.” Hays at 164.
*53 “While reformers maintained that their movement rested on a wave of popular demands, called their gatherings of business and professional leaders ‘mass meetings,’ described their reforms as ‘part of a worldwide trend toward popular government,’ and proclaimed an ideology of a popular upheaval against a selfish few, they were in practice shaping the structure of municipal government so that political power would no longer be broadly distributed, but would in fact be more centralized in the hands of a relatively small segment of the population.” Hays at 167.
Shifts in urban populations and migrations of well-defined ethnic, economic, or racial groups both to and from cities may have changed the identity of those who may be denied meaningful participation in the political processes but this would merely mean that there has been a substitution of the minority group.
Because of the inherent probability of this exclusion in the at-large election situation, it reasonably might have been assumed that the attack would be launched in the case now before this court on the root of the political famine in which the Cairo blacks find themselves. Such is not the case. Instead appellants assert that the Illinois statute is not per se unconstitutional. 4
The reluctance to mount a facial attack on the statute may well have resulted from the cases on which the appellants placed their reliance, principally White v. Regester, 412 U.S. 755 , 93 S.Ct. 2332 , 37 L.Ed.2d 314 (1973), and Whitcomb v. Chavis, 403 U.S. 124 , 91 S.Ct. 1858 , 29 L.Ed.2d 363 (1971). These cases and their predecessors make it clear that multimember districts are not per se unconstitutional. Constitutional deficiency under the Equal Protection Clause of the Fourteenth Amendment is not brought about “simply because the supporters of losing candidates, have no legislative seats assigned to them.” Whitcomb, supra, at 160 , 91 S.Ct. 1858 , 29 L.Ed.2d 363 .
Further, the teaching of Fortson v. Dorsey, 379 U.S. 433, 438 , 85 S.Ct. 498 , 13 L.Ed.2d 401 (1965), and Dusch v. Davis, 387 U.S. 112 , 87 S.Ct. 1554 , 18 L.Ed.2d 656 (1967), that when an official’s tenure depends upon the countywide electorate he must be vigilant to serve the interests of all the people in the county and not merely the people in his home district is shown to have continuing viability in the recently decided Dallas County v. Reese, 421 U.S. 477 , 95 S.Ct. 1706 , 44 L.Ed.2d 312 (1975).
In the present case, the appellants challenged the constitutionality of the Illinois statute under both the Fourteenth and the Fifteenth Amendments but the primary basis of attack appears to be because of the dilution-equal protection principles found in the line of cases exemplified by White and Whitcomb . Judicial reluctance to invalidate on equal protection grounds an underlying statute not unconstitutional in its inception is demonstrated by this language from Paige v. Gray, 399 F.Supp. 459, 465 (M.D.Ga.1975):
“This court has not found nor has counsel suggested an appellate or Supreme Court decision in which an election scheme enacted some 28 years ago and not otherwise unconstitutional, has been determined to be violative of the equal protection clause because of the conduct of the public officials *54 elected under the 28 year old scheme. If the equal protection clause were so interpreted, the United States courts would be continuously called upon to determine the present fairness towards all racial elements of all existing election schemes of our 50 states and thousands of local governments regardless of how long those schemes may have existed and regardless of whether or not when enacted they impinged upon the constitutional rights of the citizenry. United States courts would indeed supplant all legislative judgment.”
Finally, a broadside attack by the plaintiffs on the Illinois statute, facially at least, would have been to have put themselves on the tortuous and often frustrating path of three-judge court procedure. The appellants therefore have sought to make this suit purely one of local concern which could properly be brought before and disposed of by a single district court judge. The district court agreed with the appellants on this phase of the case as did the majority in this court. My dissent is based upon my disagreement. I would not disagree that the determination of whether an action of the type here involved should require a three-judge court is not one easy of solution and judicial language supporting either position on the subject is easily citable. One preliminary principle, however, should not be too arguable and that is that the facts of the individual case must be the basis for the determination.
In simple terms, the plaintiffs’ complaint seeks an injunction requiring a ward plan of voting in Cairo which would be of necessity based upon a declaratory judgment that the Illinois statute was “unconstitutional as applied in Cairo, Illinois.” (Emphasis supplied.) While there may have been a question at one time, three-judge court jurisdiction is mandated just as much in the “applied” case as it is when the attack is a facial one. The applicable law is succinctly stated by Mr. Justice Brennan in a footnote in Steffel v. Thompson, 415 U.S. 452 , 457 n. 7, 94 S.Ct. 1209, 1214 , 39 L.Ed.2d 505 (1974), as follows:
“Since the complaint had originally sought to enjoin enforcement of the state statute on grounds of unconstitutionality, a three-judge district court should have been convened. See 28 U.S.C. § 2281 ; Goosby v. Osser, 409 U.S. 512 [ 93 S.Ct. 854 , 35 L.Ed.2d 36 ] (1973); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 [ 82 S.Ct. 1294, 1296 , 8 L.Ed.2d 794 ] (1962). A three-judge court is required even if the constitutional attack — as here — is upon the statute as applied, see Department of Employment v. United States, 385 U.S. 355 [ 87 S.Ct. 464 , 17 L.Ed.2d 414 ] (1966); Query v. United States, 316 U.S. 486 [ 62 S.Ct. 1122 , 86 L.Ed. 1616 ] (1942); Ex parte Bransford, 310 U.S. 354, 361 [ 60 S.Ct. 947, 951 , 84 L.Ed. 1249 ] (1940); see generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964); and is normally required even if the decision is to dismiss under Younger-Samuels principles, since an exercise of discretion will usually be necessary, see Jones v. Wade, 479 F.2d 1176, 1180 (CA5 1973); Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); see generally Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 309 (1963). But since petitioner’s request for injunctive relief was abandoned on appeal, see n. 6, supra, and only a request for declaratory relief remained, the Court of Appeals did not err in exercising jurisdiction over the appeal. Cf. Roe v. Wade, 410 U.S. 113, 123 [ 93 S.Ct. 705 , 35 L.Ed.2d 147 ] (1973); Mitchell v. Donovan, 398 U.S. 427 [ 90 S.Ct. 1763 , 26 L.Ed.2d 378 ] (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155 [ 83 S.Ct. 554, 559-561 , 9 L.Ed.2d 644 ] (1963); Stratton v. St. Louis S. W. R. Co., 282 U.S. 10, 16 [ 51 S.Ct. 8, 10 , 75 L.Ed. 135 ] (1930).” The majority opinion in the present
case also disposes of the three-judge court issue in a footnote. Reliance is *55 placed upon Ex parte Bransford, 310 U.S. 354, 361 , 60 S.Ct. 947, 951 , 84 L.Ed. 1249 (1939), which case distinguishes between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition is categorized by the Court as being aimed “at an allegedly erroneous administrative action,” whatever that phrase may mean.
As an initial matter, serious doubts about the correctness of Bransford are raised by a respectable authority in the field, Professor David P. Currie, of the University of Chicago, whose article on the subject, cited in the above quotation from Steffel , The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964) deals extensively with Bransford and its companion in arms, Phillips v. United States, 312 U.S. 246 , 61 S.Ct. 480 , 85 L.Ed. 800 (1941). “The doctrines of Phillips and Bransford are vague and impracticable and have provoked a good deal of confusion in the lower courts.” Id. at 38.
Little purpose except to lengthen unduly this dissent will be served by setting forth the author’s penetrating analysis of the obfuscating semantical clouds created by Bransford and Phillips . It is enough to say that in my opinion Professor Currie’s conclusion is fully justified:
“In order that the three-judge statute may be administered with a minimum of uncertainty and jurisdictional litigation, those decisions should be set aside and three judges required whenever ‘the plaintiffs seek to enjoin the defendants . . . from doing what they [defendants] [reasonably] claim they are authorized and required to do by the Constitution and laws of the state.’ ” Currie at 50. (footnote omitted.)
Assuming arguendo, however, in view of the lack of Supreme Court repudiation of the “erroneous administrative action” concept of Bransford and the continuing citation of that case, that Bransford is viable in toto, I fail to see that it requires dispensing with a three-judge court in the present case. It is true that the plaintiffs insist rather strenuously that they fall within the wording of Bransford in that they are seeking “an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional.” However, their disclaimer is belied by the result they seek which is squarely based upon a judicial determination that the statute is unconstitutional “as applied” in Cairo. This is not as the majority opinion suggests a case in which administrative order misinterpreting or distorting a valid state law results in a denial of equal protection. The defendants are applying the statute exactly as it is written and exactly as it is presumably being applied in 64 other communities. The statute does not appear to provide for discretionary variations to be determined by local officials. If the application results in unconstitutional action it must be because the statute upon which the action is taken is unconstitutional.
The defendants are exercising no discretion, administrative or otherwise. The only discretion being exercised is that of the voters who regrettably appear to vote consistently along color lines. While perhaps not directly bearing on the issue before us, it should be noted that assuming the complaint’s claim of polarization being true and accepting that polarization is a dual process, the imposition of a ward arrangement would result in some of the wards in an exclusion of white voters from the political processes. The fault would appear to . be undesirable human traits which runs deeper than the particular election system currently in use.
A second phase of the three-judge court situation requires consideration and that is that a purely local application does not trigger the necessity. Some of the language in Moody v. Flowers, 387 U.S. 97, 101-102 , 87 S.Ct. 1544 , *56 18 L.Ed.2d 643 (1967) might on first reading seem to support the position adopted by the district court and the majority of this court:
“The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e. g. Ex parte Collins, 277 U.S. 565 [ 48 S.Ct. 585 , 72 L.Ed. 990 ]; Ex parte Public National Bank of New York, 278 U.S. 101 [ 49 S.Ct. 43 , 73 L.Ed. 202 ]; Rorick v. Board of Commissioners of Everglades Drainage Dist., 307 U.S. 208 [ 59 S.Ct. 808 , 83 L.Ed. 1242 ]; Cleveland v. United States, 323 U.S. 329, 332 [ 65 S.Ct. 280, 281 , 89 L.Ed. 274 ]; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227-228 [ 84 S.Ct. 1226, 1231-1232 , 12 L.Ed.2d 256 ]. The term ‘statute’ in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra ) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 [ 55 S.Ct. 678 , 79 L.Ed. 1322 ]. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented ‘by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.’ Wilentz v. Sovereign Camp, WOW, 306 U.S. 573, 579-580 [ 59 S.Ct. 709, 713 , 83 L.Ed. 994 ].”
In Moody , however, one of the cases involved only a local charter and the other although directed to a state statute concerned one which dealt with apportionment and districting for one county’s governing board. In the ease before us, the state statute is “of general and statewide application.” While local officers are involved they are “functioning pursuant to a statewide policy” and performing a function in accordance with the statute of statewide application.
An examination of the voting cases indicates that those in which a three-judge court were held not to be necessary did in fact only involve a local situation even though an act of the legislature was concerned. Thus in Dove v. Bumpers, 497 F.2d 895 (8th Cir. 1974), remanding 364 F.Supp. 407 (E.D.Ark. 1973), a three-judge court decision, the court of appeals pointed out that although the statute was couched in general terms, it applied exclusively to two cities in the state. Even so the court stated the question was not without difficulty. In Paige v. Gray, supra, the state statute dealt specifically with municipal elections in Albany, Georgia. Some of the election cases do not appear to have considered the problem at all. Others, particularly those from the Fifth Circuit, have developed from court sponsored local plans devised to implement constitutional principles. See, e. g., Bradas v. Rapides Parish Police Jury, 508 F.2d 1109 (5th Cir. 1975). Another type of case which would appear to be purely local would be if the state constitution or a state statute permitted a local community to devise its own home rule plan. That, of course, is not the situation here where the commission plan is set forth in detailed terms in the statute and is uniformly applicable to all communities voting to adopt the plan.
The majority opinion may be arguably correct in stating that the plaintiffs’ complaint focuses only on the choice made by Cairo. The plaintiffs clearly attempted so to confine their focus. But this attempted focusing does not support the next observation in the majority opinion that if the plaintiffs succeed after trial, “there would be no impact beyond the city of Cairo.” The impact *57 would be immediate and probably substantial upon the other 64 municipalities of Illinois which have adopted the commission form of local government. I am unable to believe that in each of these there is not some minority group that is not represented in the city governing body but would be if the election of the commissioners was by wards.
The resulting impact is aptly described in Whitcomb v. Chavis, supra, 403 U.S. at 156-57 , 91 S.Ct. at 1875 :
“The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multimember districts to survive analysis under the District Court’s view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country.”
(Footnotes omitted.)
Where a statute embodies a policy of statewide concern — here the uniform provisions for municipal government by at-large elected commissioners — an officer, although chosen in a political subdivision and acting within that limited territory, may be charged with the duty of enforcing the statute in the interest of the state and not simply in the interest of the locality where he serves. Spielman Motor Co. v. Dodge, 295 U.S. 89, 94 , 55 S.Ct. 678 , 79 L.Ed. 1322 (1935). As in Spielman in the present case “it is manifest that the statute under attack attempted to establish a state-wide policy, and not one merely in the interest of a particular county.” Id. at 95, 55 S.Ct. at 680 .
While there might be substantial doubt whether- the courts should undertake the task of mandating what would appear to be proportional representation in a small community, and increased doubt where the multimember district concededly was not designed by the legislature nor adopted by the municipality for the purpose of diluting the votes of minorities, see Whitcomb v. Chavis, supra, 403 U.S. at 149 , 91 S.Ct. 1858 , nevertheless, I am unable to say that the matter of lack of constitutionality is so insubstantial as to justify dismissal by a single district judge. The merits, in my opinion, should not be explored farther than that by this court at this time. I do say, however, that the resolution of the constitutional question here should be by a three-judge court. In so saying, I am not unmindful that the three-judge court procedure does not enjoy extensive judicial favor today. Nevertheless, while it remains as a part of the federal jurisdictional scheme, it should be utilized where it is required. To paraphrase White v. Regester, supra, 412 U.S. at 760 , 93 S.Ct. 2332 at 2336 , that a court declares a statewide election plan invalid, but enters an injunction only as to one city, “in no way indicates that the case required only a single judge.”
Accordingly, consistently with Idlewild Liquor Corp. v. Epstein, 370 U.S. 713 , 82 *58 S.Ct. 1294 , 8 L.Ed.2d 794 (1961), and its progeny, 5 1 would remand the case to the district court so that a three-judge court could be convened.
. James Weinstein, The Corporate Ideal in the Liberal State 1900-1918, Beacon Press, Boston (1968). The material in the text of this dissenting opinion is taken from Chapter Four: The Small Businessman as Big Businessman: The City Commission and Manager Movements, p. 92 et seq.
. Samuel P. Hays, The Politics of Reform in Municipal Government in the Progressive Era, published in Volume Two, Stanley N. Katz and Stanley I. Kutler, New Perspectives on the American Past, Little Brown (1969), pp. 148-171. The article was reprinted by permission from Pacific Northwest Quarterly, LV (October 1964), pp. 157-169.
. In Galveston, the original plan provided for the appointment of all five commissioners. A court decision subsequently held appointive government unconstitutional. “In Houston, the second commission city, a poll tax of $2.50 limited democracy by eliminating 7,500 ‘irresponsible’ voters in a potential electorate of 12,-000.” Weinstein at 108. >■
. The commission form of local government resisted a constitutional attack in People v. Edmands, 252 Ill. 108 , 96 N.E. 914 (1911). Needless to say, the attack was mounted on substantially different lines than those found in recent judicial decisions dealing with the election processes.
. See David P. Currie, Appellate Review of the Decision Whether or Not to Empanel a Three-Judge Federal Court, 37 U.Chi.L.Rev. 159 (1969).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462294. Public record. Not legal advice.