336 F. Supp. 839

CAMPBELL, Senior District Judge
(dissenting) :
As was revealed at the hearing on this motion on November 11th, I took the position in the conference of this judicial panel immediately following the initial hearing last September that the only action this court could or should take was to approve the one plan based upon numerical up-dating of our original plan of 1965 to achieve constitutional numerical equality in its Congressional districts. I further proposed at that conference to submit such plan once again to the Illinois Supreme Court for joint promulgation by both courts, exactly as the same two courts did with the original reapportionment of the same Congressional districts in 1965, (Kirby v. Illinois State Electoral Board, 251 F.Supp. 908, People ex rel. Scott v. Kerner, 33 Ill.2d 460, 211 N.E.2d 736). I still conclude and here reiterate that the foregoing represents the limit of our jurisdiction in this particular re-apportionment case regardless of what greater jurisdiction might possibly exist in some other case lacking the dual jurisdictional precedent confronting us here.
I warned my brothers of this panel in that same conference last September that to do otherwise would not only exceed our authority but would upset perhaps permanently the outstanding comity that has always existed, not only in re-apportionment but in all matters, between the courts of the State of Illinois and this court ever since its creation by the Congress. From all that I saw and heard from both sides of the bar at the hearing just concluded this unfortunate result has been achieved by the injunction issued herein by the majority over my continuing dissent.
In support of my objections to the unwarranted and imperious action taken by my brothers I here re-adopt without restatement all of the findings and conclusions contained in my memoranda of September 21st and November 10th herein. I hereby further find and conclude that Section 2283 as construed by the courts has never sanctioned a federal court injunction against state judicial activity merely on the possibility of conflicting impact of final state and federal orders, which is the ground relied upon by my brothers for this mischievous injunction. Atlantic Coastline Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 clearly teaches that even where, as in that case, the final orders of state and federal courts are directly in opposition (a situation which the majority seems only to guess might happen here) a federal restraint upon the state is forbidden because the pathways leading to the conflicting orders are distinct. (See also application of the Atlantic Coastline dichotomy to re-apportionment in Moss, 220 F.Supp. 149 and Lomenzo, 238 F. Supp. 916). In our case we clearly have such separate considerations to be undertaken by this court and by the Supreme Court of Illinois. Indeed, my brothers themselves so find when they hold in their memorandum of September 21st (pp. 6 and 7) herein that the vital issues of contiguity and compactness of Congressional districts are beyond federal judicial determination. Of course these issues, indispensable to valid reapportionment, belong solely to the State (Reynolds v. Sims, 377 U.S. 533 at pp. 578 and 579, 84 S.Ct. 1362, 12 L.Ed. 2d 506) and in our case can only be determined by the Supreme Court of Illinois whose hands the majority seek by their injunction to tie in defiance of the teachings of Atlantic Coastline (supra).
I protest and I dissent!

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