dissenting:
I believe that this case involves only political questions and not justiciable issues and that therefore the separation of powers precludes us from judicially deciding the questions. (See Ill. Const. 1970, art. II, sec. 1.) I would vacate the order from which the appeal is being taken, dismiss the case, and allow the mayor and his supporters to continue to function in the city council pursuant to the orders and resolutions passed by the city council at its June 6,1986, meeting.
I feel that certain political and politically related facts that do not appear in the majority opinion are relevant. In order to give these additional facts continuity, and for ease of understanding, I will integrate the additional facts with the facts that have been stated by the majority.
Chicago is divided into 50 aldermanic wards, each with nearly equal population. The city council must redistrict Chicago’s wards on the basis of new census data by December 1 of the year following the taking of a national census. (Ill. Rev. Stat. 1981, ch. 24, pars. 21 — 36, 21 — 38.) As a result of the census taken in 1980, it was necessary for the city council to devise a redistricting plan by December 1, 1981. After the city council redistricted Chicago’s wards in 1981, several black and híspame residents filed a law suit in the United States district court alleging in part that the new map violated the Voting Rights Act (42 U.S.C. sec. 1971 (1982).) The district court entered judgment in favor of the plaintiffs on their Voting Rights Act claim and then adopted a new map. (Ketchum v. Bryne (7th Cir. 1984), 740 F.2d 1398, cert. denied (1985), 471 U.S. 1135, 86 L. Ed. 2d 692, 105 S. Ct. 2673.) The plaintiffs appealed because they felt that the relief granted was insufficient.
While the appeal was pending, the aldermanic election took place on April 12, 1983. After the election the new city council met for the first time, on May 2, 1983. At the council meeting there emerged an alliance of 28 white aldermen and one hispanic alderman (the 29 alliance) who opposed the chairman of the meeting, Chicago’s first black mayor, Harold Washington. The mayor and 21 aldermen supporting the mayor, including all 16 black aldermen, attempted to abruptly adjourn the city council meeting. The mayor and his supporters left the meeting after the mayor proclaimed that the meeting was adjourned. However, the 29 alliance continued the meeting and by a vote of 29 to 0 amended the city council rules to give the 29 alliance control of the city council. The 29 alliance increased the number of standing council committees from 20 to 29, assigned itself voting control of all the standing council committees, and made its own members chairmen of virtually all of the 29 committee chairmanships. One of the leaders of the 29 alliance emerged as chairman of the city council’s most powerful committee, the committee on finance. He replaced a longtime chairman who is black. The 29 alliance also amended certain city council rules which had the effect of making it unlikely that the mayor’s alliance would be able to undo the changes that the 29 alliance made even if the 29 alliance would later be reduced from a majority to a minority of the city council. Having given itself control of the city council, the 29 alliance enacted Rule 48, which requires a two-thirds majority vote to amend the rules that the 29 alliance had just passed by less than a two-thirds majority vote.1
At the time of the May 2, 1983, meeting, the 29 alliance included aldermen from the seven wards that were principally at issue in the Ketchum case (Ketchum v. Byrne (7th Cir. 1984), 740 F.2d 1398), that was pending on review. On August 14, 1984, the court of appeals reversed the district court’s judgment in part and remanded the Ketchum case with directions to remedy the “illegal dilution of minority voting strength accomplished by the city council map.” Ketchum v. Byrne (7th Cir. 1984), 740 F.2d 1398, 1412. Accordingly, on December 27, 1985, the district court approved a new map for Chicago’s wards that made significant demographic changes in seven wards. Also, on December 30, 1985, the district court ordered special aldermanic elections in the seven wards.
As a result of the special aldermanic elections, four of the aldermen who had been part of the 29 alliance lost their seats as aldermen to persons supporting the mayor. Thus, the 29 alliance became the 25 alliance. This political fact changed the balance of power in the city council because, as the 29 alliance was reduced to 25, the number of aider-men supporting the mayor was increased to 25, and “the mayor shall vote” where the vote of the aldermen has resulted in a tie (Ill. Rev. Stat. 1985, ch. 24, par. 3-11-14).
After the mayor and his 25 alliance gained a political edge in the city council, the city council meeting of June 6, 1986, took place. The events that occurred at that meeting are explicitly involved in this appeal. Generally, the events that took place at the June 6, 1986, meeting amounted to the newly comprised city council changing the rules and committee arrangements that had previously been passed by the 29 alliance at the May 2, 1983, meeting. Simply, the rules and committee arrangements were changed to favor the mayor and his 25 alliance instead of the opposition 25 alliance.
At the June 6, 1986, meeting, the newly constituted city council first voted to amend Rule 48. By a vote of 26 to 25, including the may- or’s tie-breaking vote, the city council changed Rule 48 to allow the city council rules to be amended by a vote of “a majority of all aldermen entitled by law to be elected,” rather than requiring a two-thirds majority to amend the rules. Next, the newly constituted city council voted by the same 26 to 25 vote to amend Rule 36. The amendment reduced the vote needed to remove committee chairmen and vice-chairmen from two-thirds to a simple majority. After doing that, the city council voted 26 to 25 to make certain additional rule changes, including one which abolished or merged 11 committees and created 2 new committees. Finally, the city council rescinded the existing committee assignments and assigned new chairmen and vice-chairmen to certain committees. Under the new lineup the mayor captured majority control of all council committees, and the majority of the committees were chaired by supporters of the mayor. The reorganization stripped one of the leaders of the opposition 25 alliance of crucial budget powers as finance committee chairman. These powers were given to one of the leaders of the mayor’s 25 alliance who is black.
At the June 6, 1986, city council meeting, there was a floor debate, and the city council considered and formally passed on the interpretation and meaning of its own rules and the changes that were made. Specifically, the city council debated and rejected the contention of the opposition 25 alliance that a 26 to 25 majority was not sufficient to nullify Rule 48, as it had been passed by the then opposition 29 alliance. As the majority opinion correctly shows, there is no constitutional, statutory or common law rule of law which establishes that a majority of any body cannot nullify what a prior majority of the body had done. Surely, if one majority created the rule, another majority should be able to nullify it. See Supreme Lodge Knights of Pythias v. Trebbe (1899), 179 Ill. 348, 354, 53 N.E. 730, 732; State ex rel. Kiel v. Riechmann (1911), 239 Mo. 81, 142 S.W. 304.
At the June 6, 1986, meeting, the city council also debated and rejected the contention of the opposition 25 alliance that Rule 12 precludes the mayor from voting to break ties on appeals from his ruling as chairman of the city council. Rule 12 provides: “Any member may appeal to the Council from a ruling of the Chair, and the member making the appeal may state his reason for the same and the Chair may explain his ruling; but there shall be no debate on the appeal and no other member shall participate in the discussion. The Chair shall then put the question, ‘Shall the decision of the Chair be sustained?’ If a majority of the members present vote ‘Yes,’ the decision of the Chair is sustained, otherwise the decision of the Chair is overruled.”
The opposition 25 alliance maintained at the meeting that the mayor is not a member of the council within the meaning of Rule 12 and therefore cannot vote in case of a tie. Here it should be noticed that Rule 12 states that if a majority of the members present vote “Yes,” the decision of the chairman is sustained; Rule 12 does not state that if a majority of the aldermen present vote “Yes,” the decision of the chairman is sustained. This is a significant distinction because, by statute, the city council consists of the aldermen and the mayor, and where the vote of the aldermen has resulted in a tie, the mayor shall vote. (Ill. Rev. Stat. 1985, ch. 24, par. 3 — 11—14.) Thus the position that was taken by the opposition 25 alliance at the meeting was not only rejected by the city council itself but it is not tenable.2
The political and other facts which I have stated clearly demonstrate that this case involves political questions and not justiciable issues. Specifically, this case involves solely the internal political struggles of the city council of Chicago, a legislative body, and the rules of proceeding in the city council. In this regard, section 3 — 11—11 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 3 — 11—11), states that the “city council shall determine its own rules of proceeding.” Moreover, the city council is under no constitutional, statutory or common law requirement to create committees. Thus, the rules of proceeding and the decisions regarding the creation of committees, what committees the city council should have, what the composition or authority of the committees should be, and who should be chairman of the committees are all within the unbridled political discretion of the city council. This is as it should be. Politics, with all of the word’s good and bad connotations, is how the legislative branch of government works. This is an important recognition because it evinces that the questions that are involved in this case arise from matters that occur within the contours of the legislative process.
Under our constitution, the legislative, executive and judicial branches of government are separate and no branch shall exercise powers properly belonging to another.3 Since the questions in this case arise from matters that occur within the contours of the legislative process, under the separation of powers in the constitution the final determination of the questions is constitutionally committed to the legislative branch of government. Thus, the questions are political, and they may not be finally decided by the judicial branch of government because of the separation of powers. See Davis v. Bandemer (1986), 478 U.S. ___, 92 L. Ed. 2d 85, 106 S. Ct. 2797; Baker v. Carr (1962), 369 U.S. 186, 217, 7 L. Ed. 2d 663, 686, 82 S. Ct. 691, 710;4 G. Gunther, Constitutional Law 396-98 (11th ed. 1985).
In my opinion, the majority treats the separation of powers principle with superficiality rather than with the reverence it deserves as one of the safeguards to our unique form of government. (See Bowsher v. Synar (1986), 478 U.S. __, __, 92 L. Ed. 2d 583, 593-94, 106 S. Ct. 3181, 3186.) This is the underlying fault in the majority’s erroneous conclusion that the separation of powers is not applicable here.
The majority relies upon Rock v. Thompson (1981), 85 Ill. 2d 410, 426 N.E.2d 891. In Rock, the mandamus petition alleged “that when the Senate action was taken on January 15, 1981, no quorum was present as required by article IV, section 6(a), of the 1970 Constitution." (Emphasis added.) (85 Ill. 2d 410, 419, 426 N.E.2d 891, 897.) Thus, as expressly appears in the court’s opinion in Rock, “the petition alleges not merely procedural deficiencies, but substantive constitutional defects.” (85 Ill. 2d 410, 419, 426 N.E.2d 891, 897.) In holding that it had jurisdiction to hear the case, the court stated: “It is the duty of the judiciary to construe the Constitution and determine whether its provisions have been disregarded by the actions of any of the branches of government.” (85 Ill. 2d 410, 418, 426 N.E.2d 891, 896.) Where there is a showing of an explicit and clear constitutional imperative to decide a case, there is no question that the judiciary will intervene and decide the case even though it may involve a political question. (See Baker v. Carr (1962), 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691.) However, in the present case there is no allegation by the plaintiffs that there has been a constitutional violation of any kind. Rather, the plaintiffs have alleged mere procedural deficiencies at the city council meeting of June 6, 1986. Here, unlike in Rock, there is no duty of the judiciary to construe the constitution and determine whether its provisions have been disregarded by the actions of any of the branches of government.
In addition, in Rock the petitioners and the respondents agreed that the judiciary should decide the case. In Rock, Justice Simon stated: “both sides urgently asked us to judge the case, and agreed that we should decide it on the merits. We need not hesitate, therefore, over the propriety of judicial interference with other branches of government.” (Rock v. Thompson (1981), 85 Ill. 2d 410, 431, 426 N.E.2d 891, 902 (Simon, J., concurring).) In the present case, the mayor and his supporters fiercely argue that this case presents only political questions and that the questions presented are not justiciable because of the separation of powers. Thus, Rock has no application to the question of the propriety of judicial interference with other branches of government in the present case.
Next, the majority concludes that since “[h]alf of the aldermen of the city council have asked this court to resolve the difficulty,” it means that the city council is not able to resolve its impasse without judicial help. The majority then states that therefore “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.” I disagree.
The judiciary should not be deciding this case merely because some members of the city council claim that they have reached an impasse due to their own recalcitrance or misbehavior. In such instances the judiciary must simply step aside and let the warring political factions resolve their differences through the political processes and hard political bargaining and compromise. If they fail, they need never respond to the judiciary, but they will surely answer to the people who elected them as legislators.
I believe that the majority’s well-intentioned, but ill-advised, judicial intervention into local legislative politics will do nothing but encourage the highly charged political factions to continue to race pellmell to and from the courthouse for court decisions and reversals on a morass of political questions and appointments. This will surely thrust the courts deeper into the thicket of partisan political affairs and end up bungling rather than curing the work of the local legislative government. As our Founding Fathers recognized when they gave us our Constitution, the legislative branch of government may not work perfectly, but it plainly works best when it is not interfered with by the judiciary. Thus, the majority’s reasons for deciding the political questions in this case are simply not tenable. The majority should have deferred to the separation of powers.
In not deferring to the separation of powers, the majority overlooks the celebrated warning of Montesquieu that “ ‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’ ” The Federalist No. 78, at 466 (A. Hamilton) (C. Rossiter ed. 1961), quoting 1 Montesquieu, Spirit of Laws, at 181 (1748).) We should not forget that it was in an exercise of their liberty that the people elected aldermen, and not judges, to run the city council. By choosing to decide this case judicially, the majority is transgressing upon the liberty of the people to have their elected legislators in the city council conduct their affairs. Moreover, we must remember that the judiciary is the branch of government that was intended by the Founding Fathers to be the least powerful.5 The Federalist No. 78, at 465 (A. Hamilton) (C. Rossiter ed. 1961). Here, by arrogating to itself the authority to dictate how the city council should conduct its affairs, the majority is acting as if the branch of government intended to be the least powerful is the most powerful.
There is still another factor that must be considered. An independent judiciary is indispensible to the separation of powers. See Kaufman, Maintaining Judicial Independence: A Mandate to Judges, 66 A.B.A.J. 470 (1980). In order to preserve the independence of the judiciary, judges must take affirmative action to insulate the judicial process from all interference from other sources. Here, the majority’s demonstrated proclivity to decide political questions invites, rather than insulates judges from, interference with the judicial process. The invited interference to which I refer would include attempts by local political factions to exert political influence upon members of the judiciary who are seeking to be retained as judges in pending elections while the judges have cases before them which involve solely political questions. This is the kind of unseemly spectacle which the majority opinion breeds. Thus the majority has not taken the type of affirmative action that is necessary to uphold the independence of the judiciary. This is an important consideration because without the “complete independence of the courts of justice” there can be no separation of powers. See The Federalist No. 78, at 466 (A. Hamilton) (C. Rossiter ed. 1961).
Accordingly, I would hold that this case presents political questions and not justiciable issues and that the separation of powers precludes the judiciary from exercising its jurisdiction. I would vacate the order of the trial court, dismiss the case, and allow the mayor and his supporters to continue to function in the city council pursuant to the orders and resolutions passed by the city council at its June 6, 1986, meeting.
Rule 48 of the 1979-83 city council provided: “These rules *** shall not be repealed, altered or amended unless by concurrence of 2/3 of all the aldermen entitled by law to be elected.” At the May 2, 1983, meeting of the 1983-87 city council, the 29 alliance, which constituted less than a two-thirds majority of the city council, reenacted Rule 48 as part of the rules of the 1983-87 city council.
If I were to decide this case on the merits I would agree with the result of the majority on this point, but only for the reasons that I have stated. I believe that the majority’s reason for concluding that the mayor could vote in case of a tie vote is questionable. The majority states that the “city council could not deprive the majority of this right and duty to vote in case of a tie even if it had intended to do so in enacting Rule 48” or Rule 12 because “[wjhere municipal ordinances conflict with State law, the dictates of the State legislature prevail. (Chicago v. Union Ice Cream Manufacturing Co. (1911), 252 Ill. 311, 313, 96 N.E. 872.)” The Union Ice Cream Manufacturing Co. case was decided before the 1970 Constitution of the State of Illinois was adopted. The 1970 Constitution of the State of Illinois provides: “Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” (Ill. Const. 1970, art. VII, sec. 6(i).) Since the majority has not shown how this home rule provision of the Constitution is to be applied here, I believe the majority’s rationale is questionable. Plainly, the Union Ice Cream Manufacturing Co. case is not applicable. In Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 392, 403 N.E.2d 258, 262, the court stated: “We have repeatedly held that ‘a home rule unit’s exercise of its power will supercede any conflicting pre-1970-Constitution legislation.’ ” The legislation relied upon by the majority is pre-1970-Constitution legislation.
In this opinion reference is made to the United States Constitution with regard to the separation of powers. However, the discussion applies as well to the Illinois Constitution, which expressly provides: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, sec. 1.) See 11 Ill. L. & Prac. Constitutional Law sec. 81 (1981); 16 C.J.S. Constitutional Law sec. 111 (1984).
In Baker v. Carr, the court stated: “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department.” 369 U.S. 186, 217, 7 L. Ed. 2d 663, 686, 82 S. Ct. 691, 710.
The modern formulation for the separation of powers in government is attributed to the ideas of both the English philosopher John Locke and the French theorist Montesquieu. IX Encyclopedia Britannica, Micropaedia 61 (15th ed. 1974); H. Hart, The 100 - A Ranking Of The Most Influential Persons In History 263. However, the explicit separation of powers in the American constitution is due to the influence of Montesquieu upon the Founding Fathers. 17 Encyclopedia Britannica, Macropaedia 611 (15th ed. 1974). When speaking of the three departments of power, Montesquieu stated: “Of the three powers above mentioned, the judiciary is next to nothing.” 1 Montesquieu, Spirit of Laws, at 186 (1748).