Roti v. Washington , 148 Ill. App. 3d 1006 ( 1986 )

JUSTICE WHITE

delivered the opinion of the court:

On June 6, 1986, Alderman Evans of the city council of the city of Chicago proposed a four-part resolution to amend several of the rules of the city council and change the jurisdictions, memberships and chairmanships of the council committees. Following the council vote, Mayor Harold Washington declared that the resolution passed. Plaintiffs, 25 aldermen who voted against the resolution, then filed this suit against the mayor and the 25 aldermen who voted in favor of the resolution. They seek a judgment declaring that the resolution failed and that the committees retained the chairmen, memberships, and jurisdictions that they had prior to June 6, 1986.

The trial court granted defendants’ motion for summary judgment on the grounds that the resolution passed and the mayor’s rulings were proper. However, the trial court also stayed the effect of its order until this court should have an opportunity to rule on appeal from the order. Defendants appeal from the stay order, and plaintiffs cross-appeal from the decision to grant defendants’ motion for summary judgment. The stay order expires under its own terms with our decision on the merits of plaintiffs’ cross-appeal. Therefore, we do not address the propriety of the stay order.

I

In 1981 the city council redistricted Chicago wards. A group of Chicago citizens filed a suit in Federal court asserting that the remap violated the Voting Rights Act (42 U.S.C. sec. 1971 et seq. (1982)). The Federal district court ordered minor changes in ward boundaries, and the plaintiffs therein appealed. (Ketckum v. Byrne (7th Cir. 1984), 740 F.2d 1398, 1401-02, cert. denied (1985), 471 U.S. 1135, 86 L. Ed. 2d 692, 105 S. Ct. 2673.) Aldermanic elections were held in April 1983 while the appeal was pending. On May 2, 1983, at the first council meeting after the elections, 29 of the aldermen, including all of the plaintiffs in the instant case, voted to change the number, jurisdictions, memberships, and chairmen of the committees of the city council. They then voted in favor of a revised version of council Rule 36: under the council rules before May 1983, a vote of a simple majority was sufficient to remove committee chairmen; under the revised rule, a vote of two-thirds of the aldermen was necessary to remove committee chairmen. The 29 aldermen then voted to reenact council Rule 48, which required a vote of two-thirds of the aldermen to change any rule. This court upheld the validity of the actions of the 29 aldermen. Roti v. Washington (1983), 114 Ill. App. 3d 958, 971, 450 N.E.2d 465.

In August 1984 the United States Court of Appeals for the Seventh Circuit found that the remap ordered by the district court did not correct the violations of the Voting Rights Act. (Ketchum v. Byrne (7th Cir. 1984), 740 F.2d 1398, 1412.) In December 1985 the district court approved a new ward map that substantially altered the boundaries of seven wards, and it ordered special elections for those wards. The special elections took place in March and May 1986.

Shortly after the new members of council were seated, Alderman Evans proposed the resolution at issue in this case. In the first part of the resolution, he proposed an amendment of Rule 48 to allow amendment of the rules by the vote of a simple majority. Defendant aldermen voted in favor of the proposed amendment, and plaintiff aldermen voted against the proposal. Mayor Washington voted in favor of the amendment and declared that the first part of the resolution passed, 26 votes to 25 votes. Plaintiff Alderman Burke challenged the ruling of the chair, arguing that a vote of two-thirds of the aldermen was needed to pass the resolution. Defendant aldermen voted to sustain the mayor’s ruling, and plaintiff aldermen voted to overrule. Mayor Washington voted to sustain the ruling and declared that his ruling had been sustained. Alderman Burke again challenged the ruling, arguing that the mayor could not vote to sustain his own ruling. Again plaintiffs voted to overrule the mayor, defendants voted to sustain, and Mayor Washington declared that his ruling was sustained by a vote of 26 to 25.

In the second part of his resolution, Alderman Evans proposed an amendment of Rule 36 to allow removal of committee chairmen by a vote of a simple majority of the council. Defendants voted in favor of the second part of the resolution, and plaintiffs voted against it. Plaintiffs again challenged the chair’s ruling that the resolution passed, and the same vote ensued. In the third and fourth parts of the resolution, Alderman Evans proposed changes in the number, jurisdictions, memberships, and chairmen of the committees of the city council. Plaintiffs again voted against parts three and four of the resolution, and they again challenged the mayor’s rulings that those parts of the resolution passed.

II

Plaintiffs argue on appeal that, under the rules of the city council, they remain chairmen of the council committees. Defendants contend that the trial court did not have jurisdiction to hear this case because the case presents a political question and the plaintiffs have not alleged any judicially cognizable injury.

Illinois circuit courts have jurisdiction over all “justiciable matters.” (Ill. Const. 1970, art. VI, sec. 9.) The doctrine of justiciability in Illinois closely parallels the doctrine of justiciability developed in the Federal courts. (See, e.g., Lynch v. Devine (1977), 45 Ill. App. 3d 743, 747, 359 N.E.2d 1137.) Both Illinois courts and Federal courts have held that they lack jurisdiction to decide political questions. (Metzenbaum v. Federal Energy Regulatory Com. (D.C. Cir. 1982), 675 F.2d 1282, 1287; Zurn v. City of Chicago (1945), 389 Ill. 114, 126, 59 N.E.2d 18; Malkin v. City of Chicago (1955), 6 Ill. App. 2d 151, 155-56, 127 N.E.2d 145.) Our supreme court has stated:

“It is not within the jurisdiction of a court of equity to interfere with the public duties of the departments of government. [Citation.] Its jurisdiction pertains only to questions of the maintenance of civil rights, — property rights, as contradistinguished from political rights. [Citations.] It can have no jurisdiction to determine political questions between the mayor and council of a city concerning the appointment and removal of officers, nor can it exercise jurisdiction in determining the right of a party to an office.” (Heffran v. Hutchins (1896), 160 Ill. 550, 554, 43 N.E. 709.)

However, our supreme court has also stated: “The mere fact that political rights and questions are involved does not create immunity from judicial review.” Donovan v. Holzman (1956), 8 Ill. 2d 87, 93, 132 N.E.2d 501.

The Supreme Court of the United States traced guidelines for determining whether a case presents a nonjusticiable political question in Baker v. Carr (1962), 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691. “The nonjusticiability of a political question is primarily a function of the separation of powers,” which must be decided following “case-by-case inquiry.” (369 U.S. 186, 210-11, 7 L. Ed. 2d 663, 682, 82 S. Ct. 691, 706.) Therefore, we have no jurisdiction to decide a question which is appropriately resolved by a branch of government other than the judiciary. The court listed six different grounds for finding that the judiciary should not decide a given question. (369 U.S. 186, 217, 7 L. Ed. 2d 663, 686, 82 S. Ct. 691, 710.) Defendants maintain that we lack jurisdiction to decide this case under the first test listed in Baker because there is a “textually demonstrable constitutional commitment of the issue” to the city council. 369 U.S. 186, 217, 7 L. Ed. 2d 663, 686, 82 S. Ct. 691, 710.

In Rock v. Thompson (1981), 85 Ill. 2d 410, 426 N.E.2d 891, petitioners contended that the purported election of a senator to the office of president of the Senate did not comply with Senate rules. Article IV, sec. 6(d), of the Illinois Constitution of 1970 provides in part: “Each house shall determine the rules of its proceedings *** and choose its officers.” Relying upon this constitutional provision, respondents in Rock argued that the court had no jurisdiction to “ ‘enter into the legislative thicket’ on matters relating to the organization and operation of the Senate, a legislative body.” (85 Ill. 2d 410, 417, 426 N.E.2d 891.) The court rejected this argument stating that “the doctrine of separation of powers does not prevent the court from ascertaining compliance with or mandating performance of constitutional duties” (85 Ill. 2d 410, 417, 426 N.E.2d 891), and held that it had jurisdiction to decide whether the president of the Senate had been elected in accord with Senate rules. 85 Ill. 2d 410, 419, 426 N.E.2d 891.

Section 3 — 11—11 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 3 — 11—11) grants city councils the power to make their own rules, but neither the Constitution of Illinois nor Illinois statutes expressly mention the creation of council committees. The defendants argue that “the constitution and statutes of Illinois leave the creation and membership of City Council committees to the unfettered political discretion of the Council itself.” Since the constitutional language cited above in Rock was held not to create in the selection of a senate president a “textually demonstrable constitutional commitment of the issue” sufficient to deprive the court of jurisdiction, a fortiori the statutory language of the Illinois Municipal Code does not deprive this court of jurisdiction over the instant case involving the selection of the city council committees.

The court in Rock asserted:

“ ‘[W]hen a constitutional or statutory violation on behalf of the executive or legislative branch is asserted, the courts obviously have the obligation to correct it.’ ” (Rock v. Thompson (1981), 85 Ill. 2d 410, 417, 426 N.E.2d 891.)

Applying this principle, we find that the Illinois Constitution and the Illinois Municipal Code do not preclude us from determining whether the city council elected its committee chairmen in accord with its rules.

Neither should we refuse jurisdiction on the basis of any other concern related to the separation of powers. In the instant case the 25 plaintiff aldermen claim that through their “No” votes, the council has resolved the issues in this case in their favor by failing to enact the resolution at issue and by overruling the mayor’s contrary rulings; the 25 defendant aldermen and the mayor claim that by their “Aye” votes, the council resolved the same issues in the opposite manner. With that impasse the council has not and cannot resolve the issues presented to this court. Half of the aldermen of the city council have asked this court to resolve the difficulty. As Justice Simon stated in his concurrence in Rock:

“[I]t was clear that the Senate was unable to resolve its impasse without help, and the judiciary was the only body it could turn to for help. Had we not acted, the work of the Senate would have gone undone or been open to challenge, and Senators, once having resorted to physical conflict in trying to resolve the controversy, might have continued to do so. Having been presented with this controversy, it was better for us to decide than to avoid decision.” (Rock v. Thompson (1981), 85 Ill. 2d 410, 431-32, 426 N.E.2d 891 (Simon, J. concurring).)

We believe that we show no disrespect for coordinate branches of government, and we do not usurp powers belonging exclusively to any other branch of government, by assuming jurisdiction under the circumstances presented by the instant case. Therefore, under our constitutional scheme of separate powers, we have jurisdiction to decide this case. Baker v. Carr (1962), 369 U.S. 186, 210, 217, 7 L. Ed. 2d 663, 681-82, 686, 82 S. Ct. 691, 706, 710.

Ill

Plaintiffs maintain that the resolution by which defendants sought to amend Rule 48 failed because fewer than two-thirds of the members of the city council voted in favor of the amendment. The trial court held that a simple majority of the city council had the power to amend Rule 48:

“The power to enact is a power to repeal, and a bylaw requiring a two-thirds vote of members present to alter or amend the laws of the society may itself be altered, amended or repealed by the same power which enacted it.” (Supreme Lodge Knights of Pythias v. Trebbe (1899), 179 Ill. 348, 354, 53 N.E. 730, quoting Richardson v. Union Congregational Society (1877), 58 N.H. 187, 188.)

Plaintiffs argue that we should distinguish Trebbe on the grounds that the body whose rules were amended in Trebbe was a private group, not a public entity like the city council. We are not aware of any Illinois case which has squarely decided whether a public body’s rule, requiring a vote of two-thirds of the assembly to change the assembly’s rules, may itself be changed by a vote of a simple majority.

However, several other jurisdictions have addressed this question. In State ex rel. Kiel v. Riechmann (1911), 239 Mo. 81, 142 S.W. 304, the defendants, members of the Republican city committee of the city of St. Louis, voted to change certain committee rules in the middle of its officers’ term of office. Rule 1 stated that no officer could be removed without the vote of 18 committee members; Rule 15 provided that the rules could not be “repealed or altered unless by a three-fourths majority vote of all the members.” (239 Mo. 81, 87, 142 S.W. 304, 305-06.) A committee member proposed a resolution to amend Rule 15 to require only a majority vote to amend the rules. The committee members voted 14 to 12 in favor of the motion, and by the same vote they amended Rule 1 to require only a majority vote to change the committee’s officers. The court addressed the question:

“[D]oes a rule requiring a three-fourths vote to change the rules prevent a majority vote from changing that rule? Can a majority vote restrict its own power by such a rule, so that after such restriction the majority loses its potentiality? *** [T]he power to make carries with it the right and power to unmake. The same power which can make rules in the first instance can directly attack and unmake or repeal such rules. *** [If] by a bare majority rules are adopted, and among them is a rule saying that no change shall be made therein, except upon a three-fourths vote of the members, then in such case, before the majority could proceed to enact new rules, it must first directly attack this rule which limited the power of the bare majority. (239 Mo. 81, 97-98, 142 S.W. 304, 309.)

Similarly, the supreme courts of New Hampshire, Pennsylvania and Maryland have held that if the majority of a public body can make a rule imposing a supermajority requirement for the alteration of rules, a majority may also amend that rule. (Richardson v. Union Congregational Society (1877), 58 N.H. 187, 53 N.E. 730; Commonwealth ex rel. Mayor of Lancaster (Penn. 1836), 5 Watts 152, 155-56; Zeiler v. Central Ry. Co. (Md. 1896), 84 Md. 304, 35 A. 932.) Plaintiffs have cited no case which holds that an assembly’s rule imposing a supermajority requirement for various actions may not itself be changed by the vote of a simple majority. We believe that our supreme court in Supreme Lodge Knights of Pythias v. Trebbe (1899), 179 Ill. 348, 354, 53 N.E. 730, accurately restated the common law principle applicable to both public and private bodies. The trial court correctly applied that principle to the facts of this case and found that the resolution to amend Rule 48 passed by a vote of 26 to 25.

IV

Plaintiffs maintain that the parts of the resolution in which Aider-man Evans proposed changes in Rule 36 and in the structure of the committees failed because those parts of the resolution received insufficient votes. Under amended Rule 48, the rules of the city council may be changed with the “concurrence of a majority of all the Aldermen entitled by law to be elected.” Only 25 aldermen voted in favor of the second, third, and fourth parts of Alderman Evans’ resolution, while 25 aldermen voted against those parts. Plaintiffs maintain that, under the terms of Rule 48 as amended, Mayor Washington was not entitled to vote even in the case of a tie and therefore the resolution won the votes of only half of the council, not the requisite majority.

Mayor Washington ruled that he could vote under the terms of Rule 48 as amended. Since he voted in favor of all parts of the resolution, he ruled that the resolution passed. When Mayor Washington’s rulings were challenged, 25 aldermen voted to sustain the chair’s ruling and 25 voted to overrule. Plaintiffs maintain that Mayor Washington was not entitled to vote on the appeal under Rule 12 and, since Rule 12 provides that the chair’s ruling is overruled unless a majority of the council votes to sustain, the council overruled Mayor Washington.

The Illinois Municipal Code provides that the mayor “shall not vote on any ordinance, resolution or motion except: (1) where the vote of the aldermen has resulted in a tie; or (2) ***; or (3) ***. In each instance specified, the mayor shall vote.” (Ill. Rev. Stat. 1985, ch. 24, par. 3 — 11—14.) Where municipal ordinances conflict with State law, the dictates of the State legislature prevail. (City of Chicago v. Union Ice Cream Manufacturing Co. (1911), 252 Ill. 311, 313, 96 N.E. 872.) Thus, the city council could not deprive the mayor of this right and duty to vote in case of a tie even if it had intended to do so in enacting Rule 48. We find that Mayor Washington appropriately interpreted the rule in a manner consistent with the Illinois Municipal Code, and his votes in favor of all parts of the resolution must be counted as the tie-breaking votes. Similarly, the council could not relieve the mayor of his duty to vote in case of a tie under the terms of Rule 12; Mayor Washington appropriately cast the tie-breaking votes, which established that the city council interpreted its Rules 48 and 12 in a manner consistent with statutory law.

The city council effectively amended its Rule 48 by a vote of 26 to 25; it then effectively amended its rules relating to the structures of committees, by votes of 26 to 25, in accord with amended Rule 48. The trial court order granting defendants’ motion for summary judgment is affirmed. The stay order expires by its own terms with our resolution of the appeal from the order granting summary judgment.

Affirmed in part, and vacated in part.

McNAMARA J., concurs.