People Ex Rel. Scott v. Grivetti

MR. CHIEF JUSTICE UNDERWOOD, concurring in part and dissenting in part:

I am in agreement with the opinion of the Court except in two respects: I do not believe the action of the President Pro Tem of the Senate and the Speaker and Minority Leader of the House of Representatives in appointing themselves as members of the Restricting Commission was necessarily repugnant to the intent and purpose of section 3(b); and, in my judgment, the Commission should be held to be composed of thre.e de facto and five de jure officers and its product a valid plan.

In my opinion the very substantial majority of the reported decisions, both in Illinois and elsewhere, support the conclusion that the legislative aides to the President Pro Tem of the Senate and to the Speaker and Minority Leader of the House were de facto members of the Commission and their acts in that capacity valid as to third parties or when those acts concerned the public as they necessarily did here. As this court said in People ex rel. Hess v. Wheeler, 353 Ill. 147 , 150: “The commissioners had power to make a temporary appointment of a treasurer and thus create a de jure officer. Though their appointment was of one who was not entitled or qualified to serve, yet it has many times in this State been held that the acts of one acting as a de facto officer are valid when they concern the public or the rights of third persons who have an interest in the act done. *** Such a person will be considered a de facto officer though there may be irregularities in his appointment or lack of qualification on his part which would be fatal to his title in a direct proceeding. [Citing cases.] ” See also, People ex rel. Engle v. Kerner, 32 Ill.2d 212 ; People ex rel. Chillicothe Twp. v. Board of Review, 19 Ill.2d 424 ; Leach v. People ex rel. Patterson, 122 Ill. 420 ; Gladson v. Wilson, 196 Ark. 996 , 120 S.W.2d 732 ; State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267 , 28 So.2d 589 ; Hetrich v. County Com’rs. of Anne Arundel County, 222 Md. 304 , 159 A.2d 642 ; Commonwealth ex rel. McCreary, Dist. Atty. v. Major, 343 Pa. 355 , 22 A.2d 686 ; State ex rel. Kenney v. Ranslow, 21 Conn.Supp. 294 , 154 A.2d 526 .

The self-appointment by the legislative leaders condemned by the court deserves separate treatment. That condemnation is predicated upon the strong public policy against such action. That public policy has been announced, however, only — so far as I am aware — in those cases where the governing law did not authorize members from the appointing group to serve upon the body or in the office to which the appointment is made. Here, however, we have a significant and, I believe, a controlling distinction. Section 3(b) specifically provides that two senators and two representatives shall be appointed to the Commission. I am not at all certain that the self-appointment is contrary to public policy nor inconsistent with the intent of the framers of the constitution. The cases relied upon by respondents, in McQuillen, Law of Municipal Corporations, 3d ed., sec. 12.75, and in American Jurisprudence (42 Am. Jur., Public Officers, sec. 97), generally speaking, dealt with situations where municipal officers exercised appointive powers to place themselves in other remunerative positions in municipal government. The appointments there were self-serving in nature, and the conflicts of interest inherent in the appointments were apparent. Here, to the contrary, I see in the presence upon the Commission of the legislative leaders nothing inconsistent with the constitutional provision, and the self-appointment aspects of the matter do not involve the objectionable characteristics found in the cases and text material cited by respondents and the court. Nor do I agree that failure of the constitution to specifically authorize service by the President Pro Tern,. Speaker and Minority Leader upon the Commission necessarily manifests an intent that they shall not appoint themselves. It may as easily be construed to manifest an intent to grant complete flexibility in the exercise of the appointing power.

Consequently, while I am in complete agreement that the appointment of the legislative aides was improper, I do not find in the self-app ointment by the legislative leaders the objections apparently seen by my colleagues.

The differences between my views and those of my colleagues may, at first reading, seem too unimportant to warrant a dissent. On the contrary, it is, in my opinion, quite an important difference. As I understand our constitutional provisions incorporated in section 3(b), reapportionment shall occur “in the year following each Federal decennial census,” and adoption of a redistrcting plan is insured by a series of provisions, imposing that duty upon the General Assembly initially. Should it fail to succeed by mid-year a Redistricting Commission of eight members (no more than four from one political party) comes into being; failure of five members of that Commission to agree upon a plan results in the random choice of a “tie-breaker” (one of two persons of different political parties named by this court). This well-considered plan comes as close as human limitations permit to guaranteeing a reapportionment plan for this State in the year following each decennial census. Such plan, as I understand the constitution, will then prevail for the decade following its adoption — assuming, of course, it meets Federal and State constitutional requirements. Clearly, it is intended that it not be subject to change within that ten-year period, unless that change is necessitated by population shifts.

It seems to me, however, that only a legislatively adopted or Commission adopted plan is within the “once-a-decade” provisions of 3(b), a belief reinforced by the fact that the effect of the final paragraph of the majority opinion provides that post-1972 elections shall be conducted pursuant to a legislatively or commission-adopted redistricting plan. Thus, the net result of the court’s action is to convert into a one-election, one-year plan what was intended as a ten-year plan. If political fortune heavily favors one or the other of the major political parties in 1972, a substantially more partisan redistricting plan will be legislatively approved in 1973. That plan would then remain in effect for such portion of the ten-year period as remained and the next decennial reapportionment would then be undertaken by a heavily partisan legislature, thus, in all likelihood, perpetuating political control of the legislative branch of our State government in the hands of one or the other of the major parties. Such a result seems to me fundamentally undesirable.

Too, it should be remembered that any plan so adopted in 1973 will, almost automatically, be contested as this one was in both State and Federal courts with all of the uncertainty and instability in the election process which necessarily results. Certainty and stability in the boundaries of election districts (to the extent achievable in the narrow limits of existing “one-man one-vote” requirements) are, I think, highly desirable. The temporary redistricting plan which this court now creates serves only to promote an opposite result.

Whatever respondents may consider the other faults of the plan before us to be, there is no claim that it is heavily weighted in favor of either major party. I cannot agree that it should be converted into a temporary arrangement, nor that the General Assembly should be required to dissipate its time and energy in an effort to reapportion in 1973 when the best efforts of our legislators should be concentrated on resolving the truly significant problems before them.