in interest.” Id. (citing People ex rel. Scott v. Briceland, 359
N.E.2d 149 (Ill. 1976)); see generally Attorney General Act, 15

ILL. Comp. Star. 205/4 (2001) (Attorney General has duty to defend
all actions and proceedings against any state officer in his

official capacity); People ex rel. Hartigan v. E & E Hauling,

Inc., 607 N.E.2d 165, 170-71 (111. 1992) (discussing Attorney
General's responsibilities for representing the State's broader
interests); EPA v. Pollution Control Bd., 372 N.E.2d 50, 51-52
(Ill. 1977) (as chief legal officer of the state, Attorney
General has the constitutional duty to act as legal advisor and
representative of state agencies; this grant of power results in
a centralized legal advisory system). As the Court of Appeals
stated in Ryan, the people of Illinois are the real parties in
interest when legislative redistricting is at issue, and the
Attorney General has the sole authority to conduct this
litigation. See Ryan, 661 F.2d at 1133.

The objecting defendants also argue that because of their
conflict of interest with the Attorney General, they are entitled
to their own counsel under the State Employee Indemnification
Act, 5 Inu. Comp. Stat. 350/2 (“Indemnification Act”). Section
2(a) of the Indemnification Act provides that state employees
sued in their official capacity are to be indemnified by the
State for any resulting personal liability. Id.; Tully v. Edgar,
676 N.E.2d 1361, 1363 (Ill. App. Ct. 1997). Section 2(b) further
provides that if the Attorney General is unable to represent the

state employee under section 2(a) because of a conflict of


should be realigned as a plaintiff.

Barnow argues in the alternative that the state law claims
in Count II should be remanded to the Illinois Supreme Court.
Specifically, Barnow argues that, should this court determine the
so-called tie-breaker provision of the Illinois Constitution,
article IV, § 3, to be unconstitutional, the severability of that
provision from the remainder of the Illinois Constitution is a
novel and complex issue which has never been decided by the
Illinois Supreme Court. Thus, according to Barnow, this issue
should be remanded to the Illinois Supreme Court.

The court disagrees that the issue of severability (should
it arise) is so novel and complex that this court lacks direction
from the Illinois Supreme Court as to how it would analyze the

issue. The Illinois Supreme Court has previously addressed

severability in the redistricting context. See, e.g., People ex
rel. Engle v. Kerner, 205 N.E.2d 33, 38-39 (I11. 1965). The case
will provide this court with the necessary guidance. Moreover,
to remand the severability issue will result in a splintered
approach to the entire redistricting issue. The severability
issue is closely intertwined with the constitutionality of the
tie-breaker provision. To remand to the state court on this one
issue would result in a waste of judicial resources.

Barnow also argues this court should remand the state law
claims because they predominate over the federal claims. In the
alternative, he argues the entire complaint should be remanded to

the Illinois Supreme Court pursuant to 28 U.S.C. § 1441(c)


Northern Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272

(7 Cir. 1982). The Attorney General removed the case on behalf
of all the defendants. Barnow argues the Attorney General did
not have the authority to consent to removal on behalf of the
objecting defendants. The objecting defendants argue the
Attorney General violated his ethical duties to them in removing
the case without their consent. The court finds the Attorney
General did not need their consent and, consequently, did not
violate any ethical duties in removing the case to federal court
without the objecting defendants’ consent.

The Court of Appeals for the Seventh Circuit was faced with

a similar issue in Ryan v. State Board of Elections, 661 F.2d

1130 (7 Cir. 1981), a case involving the reapportionment of
United States congressional districts in Illinois. The appeal in
Ryan involved the consolidation of two cases, one of which had
been originally filed in state court and then removed to a
federal district court. See id. at 1132. The plaintiff argued
the removal petition was defective because the Attorney General
lacked the authority to file a removal petition on behalf of the
State Board of Elections and its members. See id. at 1133.

The Court of Appeals rejected this argument. After noting
there was no evidence the State Board of Elections disagreed with
the Attorney General’s actions, the Court of Appeals went on to
state, “it is settled as a matter of Illinois law that the

Attorney General is the sole officer who may conduct litigation

in which the people of the State of Illinois are the real parties


interest, or if the employee is an elected official, the employee
may retain his or her own personal attorney. See 5 ILL. Comp.
Stat. 350/2(b); Tully, 676 N.E.2d at 1363-64.

The court finds neither section of the Indemnification Act
applicable here. As for section 2(a), the individual members of
the Board of Elections and the Legislative Redistricting
Commission are not exposed to any risk of personal liability.
Section 2(b) is likewise inapplicable. Defendants Currie and
Demuzio argue they are elected members of the General Assembly
and are accordingly entitled to their own counsel. However, they
are not being sued in their capacities as members of the General
Assembly. Rather, they are being sued in their official
capacities as members of the Legislative Redistricting
Commission, which are appointed, not elected, positions. See
ILL. Const. art. IV, § 3(b).

Barnow also relies on Ryan v. People ex rel. Burris, No. 91
C 6832, 1991 WL 247752 (N.D. Ill. Nov. 4, 1991) in arguing that
the case was not properly removed. In Burris, another
reapportionment case, the United States District Court for the
Northern District of Illinois remanded the action to the Illinois
Supreme Court. The district court found removal was not proper
because not all the defendants had consented to removal. Burris,
1991 WL 247752, at *1. In so deciding, the district court held
the State Board of Elections was not a nominal defendant and its
consent was therefore needed. In theory, this court agrees; the

Court of Appeals stated as much in Ryan. See Ryan, 661 F.2d at


because state law issues predominate over federal claims. The
court disagrees with respect to the tie-breaker and severability
issues. In Counts I and II, Barnow has invoked both the Illinois
and United States Constitutions. At the very least, therefore,

neither state nor federal claims predominate.

III. Conclusion
For the reasons stated above, Barnow’s motion to remand is
denied and the objecting defendants’ motion to remand is also
denied. Barnow’s request for oral argument on the motion to

remand is denied.

ENTER:

Mie

MICHAEL S. KANNE, CIRCUIT JUDGE

Ge. pet lye

TERENCE T. EWANS, CIRCUXT JUDGE

PhAze be re an

PHLLIF G6. REINHARD, DISTRICT JUDGE

paren: __ Wp tian ln. (7, 20°F


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Michael’ $. Kanne
Name of Assigned Jud; ili i Sitting Judge if Other
ge Magistrate Judge Philip G. Reinhard ‘than Assigned Judge
CASE NUMBER 01 C 6566 DATE 9/17/2001
CASE Barnow vs. Ryan
TITLE

{in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

3) oO Answer brief to motion due___._Reply to answer briefdue___.

4 Oo Ruling/Hearing on__—_—set fort :

() im} Status hearing[held/continued to] [set for/re-set for] on set for at

(6) o Pretrial conferencefheld/continued to] [set for/re-set for]on_____esetfor__— at.

(7) o Trial[set for/re-set for] on sat

(8) 0 [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) © General Rule21 © FRCP41(a)(1) © FRCP41(a)(2).

(10) a [Other docket entry] For the reasons stated on the attached Memorandum
Opinion and Order, Barnows motion to remand is denied and the objecting
defendants’ motion to remand is also denied. Barnow's request for oral

argument on the motion to remand is denied.

(il) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

pumber of notices

courtroom
deputy’s
initials

Date/time received in
central Clerk's Office

mails depoby Yoitials

TH


1134. However, Burris is inapposite here. In Burris, the
Attorney General sued the Secretary of State and the State Board
of Elections. Of course, the Attorney General could not
represent the State Board of Elections since he was a party to
the case and on the opposite side of the fence. See People ex
rel. Sklodowski_ v. State of Ill., 642 N.E.2d 1180, 1184 (I1l.

1994) (Attorney General can represent opposing state agencies if
he is not an actual party or interested as a private individual).
Such is not the case here.

Furthermore, the Attorney General did not need the consent
of the Secretary of State because he is a nominal party.’
Nominal parties are disregarded for removal purposes and need not
join in the removal notice. See Airco, 676 F.2d at 272. If an
official's duties are purely ministerial, the official is a
nominal defendant. See Ryan, 661 F.2d at 1134. Here, the
Secretary of State's duties with respect to legislative
redistricting are limited to the following: receiving
certification of Legislative Redistricting Commission members
from the appointing authorities, holding on file a properly
approved redistricting plan, and publicly drawing by random
selection the ninth Commission member, if needed. See ILL. Const.
art. IV, § 3. These are purely ministerial duties. See Ryan,
661 F.2d at 1134. Because the court finds the Secretary of State

is a nominal defendant, it need not reach the issue of whether he

2 On the other hand, the State Board of Elections and the
Legislative Redistricting Commission are not nominal defendants.
See Ryan, 661 F.2d at 1134.


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION DOCKETED

BEN BARNOW, individually as a
registered voter, SEP 17 2001

Plaintiff,
No. 01 C 6566
v.

JIM RYAN, in his official capacity
as the Illinois Attorney General;
JESSIE WHITE, in his official
capacity as the Illinois Secretary
of State; the STATE BOARD OF
ELECTIONS and its members, JOHN

R. KEITH, WILLIAM M. McGUFFAGE,
DAVID E. MURRAY, PHILIP R.
O'CONNOR, ALBERT PORTER, ELAINE
ROUPAS, WANDA L. REDNOUR, and
JESSE SMART, all named in their
official capacities; and the
ILLINOIS LEGISLATIVE REDISTRICTING
COMMISSION and its members, TOM
CROSS, BARBARA FLYNN CURRIE,

VINCE DEMUZIO, WALTER DUDYC2,
RAYMOND EWELL, THOMAS MARCUCCI,
THOMAS McCRACKEN, and JORGE
RAMIREZ, all named in their
official capacities,

Defendants.

MEMORANDUM OPINION AND ORDER

I. Introduction
On August 17, 2001, plaintiff Ben Barnow filed a two-count
complaint in the Illinois Supreme Court against defendants Jim
Ryan, in his official capacity as the Illinois Attorney General,
Jesse White, in his official capacity as the Illinois Secretary
of State, the State Board of Elections and its members, in their
official capacities, and the Illinois Legislative Redistricting

Commission and its members, in their official capacities. On


August 23, 2001, the Attorney General, purporting to represent
all the defendants, filed a notice of removal, removing the
lawsuit to the Northern District of Illinois, Eastern Division.
On August 27, 2001, Barnow filed a motion to remand the case to
the Illinois Supreme Court.’ A similar motion was made by
certain defendants, namely, the Secretary of State, certain
members of the Legislative Redistricting Commission (Currie,
Demuzio, Ewell and Ramirez), and certain members of the State
Board of Elections (Keith, McGuffage, Porter and Rednour) who are
also represented by counsel other than the Attorney General.
Pursuant to 28 U.S.C. § 2284(b) (1), Circuit Court Judges Michael
Kanne and Terence Evans were designated to serve on the three-
judge panel along with District Court Judge Reinhard. The same
three-judge court is serving in the related case currently
pending, Winters et al. v. Illinois State Board of Elections et
al., No. 01 C 50229. This Opinion addresses both motions to

remand.

II. Analysis
Barnow initially argues removal is improper because not all
defendants consented to the removal. As a general rule, all

defendants must join in removal for it to be effective. See

1 In his motion to remand, Barnow also moved to stay the

defendants’ métion to reassign the case pending a decision on the
motion to remand. Chief District Judge Aspen, to whom this case
was originally assigned, ruled upon the stay portion of Barnow’s
motion and denied it. Pursuant to LR 40.4, District Judge
Reinhard found this case and Winters were related and has been
assigned to this case.