The Better Broadview Party et al v. Walters et al
Filing
37
MEMORANDUM Opinion and Order: For the foregoing reasons, Defendants' motion to dismiss 26 is denied. The parties should discuss and agree upon an appropriate discovery cut-off date. A status hearing set for 2/5/2016 at 09:00 AM. to set a discovery cut-off, or refer the case for a settlement conference. Signed by the Honorable Thomas M. Durkin on 2/1/2016:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE BETTER BROADVIEW PARTY; JUDY
BROWN-MARINO; JOHN EALEY; TARA
BREWER; DIANE R. LITTLE,
Plaintiffs,
No. 15 C 2445
v.
Judge Thomas M. Durkin
GARNET J. WALTERS, individually and in
his capacity as Clerk for the Village of
Broadview; PHILIP M. FORNARO &
ASSOCIATES LTD., D/B/A, FORNARO LAW;
PHILIP M. FORNARO, individually and in
his capacity as Attorney for the Village
of Broadview; MARK SCARLATO,
individually and in his capacity as
Attorneys for the Village of Broadview;
DAVID ORR, in his capacity as the Clerk
of Cook County,
Defendants.
MEMORANDUM OPINION AND ORDER
The Better Broadview Party (the “Party”) is an established political party
within the Village of Broadview, Illinois (the “Village”). The Party and four of its
members—Judy Brown-Marino, John Ealey, Tara Brewer, and Diane Little—allege
that Defendants acted to prevent Ealey, Brewer, and Little from appearing on the
ballot for an election of Village trustees, in violation of state law (Count III) and the
Fourteenth Amendment (Counts IV and V). See R. 1-1.1 Defendants have moved to
1 Plaintiffs amended their complaint on April 30, 2015 to add additional defendants
and a sixth count. See R. 14. The Court addressed those additional issues by
dismiss Plaintiffs’ claims for lack of subject matter jurisdiction and failure to state a
claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). R. 26. For the
following reasons, Defendants’ motion is denied.
Legal Standard
For purposes of a motion to dismiss under Rule 12(b)(1) the court accepts all
well-pleaded factual allegations as true and construes all reasonable inferences in
the plaintiffs favor. See Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012).
“Where jurisdiction is in question, the party asserting a right to a federal forum has
the burden of proof, regardless of who raise[d] the jurisdictional challenge . . . .”
Craig v. Ontario Corp., 543 F.3d 872, 876 (7th Cir. 2008).
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
denying Plaintiffs’ motion for a temporary restraining order with respect to Count
VI on May 1, 2015. See R. 18; R. 21. In light of that decision, Plaintiffs agreed that
the original complaint filed on March 20, 2015 in the state court and subsequently
removed to this Court, see R. 1-1, should be the operative complaint going forward.
See R. 26-1. Additionally, Counts I and II sought injunctive relief that the Court
granted on March 25, 2015. See R. 11.
2
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Background
Plaintiffs allege that Defendants are their political rivals in the Village. See
R. 1-1 at 13 (¶ 36). Plaintiffs also allege that Defendants misused their power and
authority to attempt to prevent Plaintiffs from ensuring that Ealey, Brewer, and
Little appeared on the ballot for the April 2015 “consolidated election” 2 for four
Village trustee seats. See R. 1-1.
Plaintiffs filed nominating papers for Brown-Marino, Ealey, Brewer, and
Little with defendant Walters, the Clerk of the Village, on January 28, 2015. R. 1-1
at 10 (¶ 28). Clerk Walters certified a ballot that included Brown-Marino because
she was an incumbent, but did not include Ealey, Brewer, and Little. Id. at 5 (¶ 16).
As an incumbent Village trustee, Brown-Marino asked Clerk Walters why he
had omitted Ealey, Brewer, and Little from the ballot, and learned that the Village’s
outside counsel—defendants Scarlato and Fornaro—advised Clerk Walters that
2 Illinois holds “consolidated elections” in odd years, and “general elections” in even
years. See 10 ILCS 5/2A-1.1.
3
Plaintiffs’ nominating papers were filed too early. Id. at 7-8 (¶¶ 21-22). Plaintiffs
allege, to the contrary, that their filing was timely pursuant to 10 ILCS 5/7-61, and
according to the calendar published by the Illinois State Board of Elections for 2015.
Id. ¶¶ at 4 (10-12). Plaintiffs also contend that Clerk Walters “has a nondiscretionary duty to certify the names of all candidates who filed nomination
papers in apparent conformity with the Election Code,” citing 10 ILCS 5/10-15 and
10-8. Id. at 6 (¶ 17).
Plaintiffs concede, however, that 10 ILCS 5/7-61—the statute they allege
supports the timeliness of their filing—is ambiguous with respect to its application
to “consolidated elections” as opposed to “general elections.” Id. at 8 (¶ 25). Plaintiffs
assumed that Defendants were interpreting the statute in such a way as to prohibit
filing of nominating papers prior to the date of the primary election on February 24,
2015. Id. at 8-9 (¶¶ 24, 26). So although Plaintiffs believed that their nominating
papers were timely filed on January 28, 2015 and that Defendants had interpreted
the statute incorrectly, Plaintiffs again filed nominating papers on February 27,
2015 in an attempt to comply with their perception of Defendants’ interpretation of
the statute. Id. at 9 (¶ 26).
Clerk Walters did not certify a ballot including Ealey, Brewer, and Little
based on the February 27 nominating papers. Id. at 9-10 (¶¶ 27-28). Plaintiffs allege
that Scarlato told Brown-Marino that he and Fornaro advised Clerk Walters not to
certify Ealey, Brewer, and Little because the February 27 nominating papers were
filed too late because the deadline was December 22, 2014. Id. at 11 (¶ 30).
4
Scarlato and Fornaro’s contention that Ealey’s, Brewer’s, and Little’s
February 27 nominating papers were filed late was also expressed in a formal
objection to their certification made on March 6, 2015.3 R. 1-1 at 9-10 (¶ 27); R. 10-1.
The objection cites the “2015 Candidates Handbook” to support Scarlato and
Fornaro’s opinion that the filing deadline for nomination papers was actually
December 22, 2014, and thus, Plaintiffs’ filing was late. See R. 10-1 at 2 (¶ 4). The
objection also contends that the statute Plaintiffs relied on to argue that their
nomination filings were timely—10 ILCS 5/7-61—is inapplicable to “consolidated
elections” like the April 2015 election. Id. at 3 (¶ 15). Plaintiffs allege that this
objection should not have prevented Clerk Walters from certifying a new ballot
including Ealey, Brewer, and Little, because their names should have been included
on the ballot noting that an objection to their candidacies was pending, pursuant to
10 ILCS 5/10-15(7). R. 1-1 at 9-10 (¶ 27). Plaintiffs also maintain that, regardless of
whether Defendants are correct about the deadline, Illinois law does not give Clerk
Walters the discretion to make such a determination. Id.
Plaintiffs allege that Defendants’ interpretation of the election law to
Plaintiffs’ detriment was motived by their political rivalry. Id. at 13 (¶ 36).
Plaintiffs allege that two years ago in 2013, the prior Village clerk declined to
certify one of Plaintiffs’ political opponent’s nomination papers as untimely. Id. at
13 (¶ 35). Fornaro, as counsel to the Village, wrote a letter to the prior Village clerk
demanding that the clerk certify the potential candidate to the ballot and detailing
3 The objection was filed by Judy Abraham. See R. 10-1. Plaintiffs do not mention
her in the complaint.
5
the circumstances of the dispute. Id. at 64-69. Fornaro wrote that the potential
candidate attempted to file nomination papers on the last day of the filing period,
but the Village clerk had impermissibly limited her office hours such that the
potential candidate was unable to file his nomination papers. Id. Fornaro argued
that the Village clerk did not have the discretion to decide that the nomination
papers were untimely under such circumstances. Id. Plaintiffs allege that Fornaro’s
advice to the Village clerk in 2013 conflicts with the advice he gave Clerk Walters.
Id. at 13 (¶ 35).
Plaintiffs also allege that even if the filing of the objection was a legitimate
reason for Clerk Walters to decline to certify their names to the ballot, Defendants
acted illegally to delay a hearing on the objection. Id. at 10 (¶ 28). Plaintiffs allege
that under 10 ILCS 5/10-10 the hearing “shall not be less than 3 not more than 5
days after the receipt of the certificate of nomination or nomination papers and the
objector’s petition.” Id. Plaintiffs allege that contrary to 10 ILCS 5/10-10 Fornaro
and Scarlato instructed the chairman of the electoral board that would rule on the
objection to delay scheduling a hearing on the objection until March 23, 2015. Id.
As it turned out, the objection to Ealey, Brewer, and Little being certified
was withdrawn on March 23, 2015, the day the hearing was scheduled. See R. 10 at
2. Clerk Walters then certified them to be on the ballot the next day. That same
day, however, at a hearing before this Court on Plaintiffs’ motion for a temporary
restraining order, Counsel for Cook County Clerk Orr represented that, despite
Ealey, Brewer, and Little having been certified by Clerk Walters, Clerk Orr would
6
not add them to the ballot because the relevant deadlines had passed. The Court
entered an injunction ordering Clerk Orr to include Ealey, Brewer, and Little on the
ballot for the April 2015 election. See R. 11.
Ealey, Brewer, and Little won election along with Brown-Marino. R. 14 ¶ 47.
Defendants argue that the fact that Ealey, Brewer, and Little were eventually
included on the ballot and won election moots their claims and deprives them of
standing, such that the Court lacks subject matter jurisdiction over their claims.
Defendants also argue that Brown-Marino and the Party do not have standing to
pursue this action because it is based on alleged harm to Ealey, Brewer, and Little,
which only indirectly affected Brown-Marino and the Party. In addition to their
arguments regarding the Court’s subject matter jurisdiction, Defendants make the
following additional arguments in support of their motion to dismiss: the individual
defendants have qualified immunity; the Noerr-Pennington doctrine protects the
Village attorneys from liability; Plaintiffs have failed to state a Due Process right to
be on the ballot; Plaintiffs have failed to state an Equal Protection claim; the Village
attorneys are not personally responsible for Clerk Walters’s actions; Clerk Walters
complied with state election law; and Plaintiffs fail to plead Monell liability under
the “policymaker” theory. As it must, the Court first addresses its subject matter
jurisdiction. The Court addresses each of the remaining arguments to the extent it
is necessary to address this motion.
7
Analysis
I.
Subject Matter Jurisdiction
A.
Injury
Defendants argue that Plaintiffs lack standing to challenge Defendants’
rejection of the January 28 filing, because Plaintiffs “conceded” the January 28
filing’s “invalidity” when they filed new nomination papers on February 27. See R.
26 at 6 (arguing that “filing two sets of nomination papers for the same office
violates the Election Code”). This argument, however, assumes that Plaintiffs allege
two distinct injuries. They do not. Rather, they allege they were injured when
Defendants acted to prevent Ealey, Brewer, and Little from appearing on the ballot
for the April 2015 election. Defendants’ alleged actions in response to both
Plaintiffs’ January 28 and February 27 filings are aspects of that single, indivisible
injury. The Court rejects Defendants’ contention that these two events should be
analyzed separately for purposes of determining Plaintiffs’ standing and the Court’s
subject matter jurisdiction.
Defendants also argue both that (1) Plaintiffs lack standing because Plaintiffs
were eventually certified on the basis of the February 27 filing, and so they have no
injury of which to complain; and (2) Defendants also argue that Plaintiffs’ claims
are moot because they were included on the ballot for the April 2015 election and
they have suffered no damages. But Defendants had not certified Ealey, Brewer,
and Little for the ballot when Plaintiffs filed this case. See Briscoe v. Kusper, 435
F.2d 1046, 1052 (7th Cir. 1970) (“Although the aldermanic election that inspired
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this action has already taken place, that event did not moot this case.”). And action
by this Court, in response to Plaintiffs’ filing a complaint, was required in order to
ensure that Ealey, Brewer, and Little were included on the ballot. Defendants
argument that Plaintiffs lack an injury is without merit.
Furthermore, the fact that Plaintiffs received the injunctive relief (Counts I
and II) they sought in filing this case does not deprive the Court of subject matter
jurisdiction over Plaintiffs’ action because Plaintiffs also seek damages in Counts IV
and V. See Bd. of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987) (“The action is not
moot, however. In addition to requesting injunctive and declaratory relief, the
complaint sought damages . . . .”); Markadonatos v. Village of Woodridge, 760 F.3d
545, 546 (7th Cir. 2014) (“Although the ordinance has been repealed and the repeal
moots the plaintiff’s request for declaratory and injunctive relief, it occurred after
he paid his $30 and so does not nullify his claim for damages.”); DeTomaso v.
McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (“[The plaintiff] has been paroled, but
because he seeks damages the case is not moot.”). Plaintiffs have alleged that
Defendants’ pre-complaint conduct violated Plaintiffs’ Due Process and Equal
Protection rights, and the Seventh Circuit “long ago decided that, at a minimum, a
plaintiff who proves a constitutional violation is entitled to nominal damages.”
Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003); see also Carey v. Piphus, 435
U.S. 247, 266 (1978) (“Because the right to procedural due process is ‘absolute’ . . .
nominal damages [are available for denial of that right] without proof of actual
injury.”); Snyder v. King, 745 F.3d 242, 246 (7th Cir. 2014) (there is a “general rule
9
that a plaintiff who successfully proves a constitutional violation is entitled to at
least a nominal award”). Moreover, Plaintiffs seek punitive damages, and “nothing
prevents an award of punitive damages for constitutional violations [even] when
compensatory damages are not available.” Calhoun, 319 F.3d at 942. Therefore, the
Court has subject matter over this case.
B.
Prudential Standing
Defendants also argue that “the Party and Brown-Marino lack prudential
standing because the legal rights and interests asserted in this case related only to
[Ealey, Brewer, and Little].” R. 26 at 7. Defendants cite Edgewood Manor
Apartment Homes, LLC v. RSUI Indemnity Co., to argue that Plaintiffs “cannot rest
their claims to relief on the legal rights of third parties.” R. 26 at 7 (citing
Edgewood, 733 F.3d 761, 771 (7th Cir. 2013)). That may be true, but Defendants
cite no authority to support their argument that this accurately characterizes the
Party’s and Brown-Marino’s interests in this case. To the contrary, as Plaintiffs
point out, 10 ILCS 5/7-61 contemplates the scenario alleged to be at issue in this
case in which no individual from a certain party won nomination for a particular
office through a primary election, but the party retains the right to make
nominations for that office for the general election ballot. In such a circumstance,
nomination “[v]acancies shall be filled by the officers of a local municipal or
township political party.” Id. Plaintiffs allege that Brown-Marino is such an officer
of the Party. Since the statute gives Brown-Marino and the Party the right to make
the nominations, and they allege that Defendants thwarted their attempt to
10
exercise that right, Brown-Marino and the Party suffered an injury. Thus, they
have standing to bring these claims along with Ealey, Brewer, and Little.
II.
Due Process
The Fourteenth Amendment prohibits a state from “depriv[ing] any person of
life, liberty, or property without due process of law.” U.S. Const. Amend. XIV, § 1.
This clause both (1) “requires compliance with fair procedures when the government
deprives an individual of certain ‘liberty’ or ‘property’ interests,” see Kerry v. Din,
135 S. Ct. 2128, 2142 (2015) (Breyer, J. dissenting) (citing Wilkinson v. Austin, 545
U.S. 209, 221 (2005)), and (2) “limits the extent to which government can
substantively regulate certain ‘fundamental’ rights.” See Kerry, 135 S. Ct. at 2142
(Breyer, J. dissenting) (citing Reno v. Flores, 507 U.S. 292, 302 (1993)).
Plaintiffs allege that Defendants impermissibly burdened their access to the
ballot, which implicates the fundamental right of freedom of association. See R. 1-1
at (¶ 74) (“The right of a party or an individual to be placed on a ballot is entitled to
due process protection and intertwined with the rights of voters.”); id. (¶ 76)
(“Defendant Walters established a course of action that deprived the Plaintiffs[] of
their right to ballot access by refusing or otherwise failing to certify the Plaintiffs’
names to the Cook County Clerk.”). The Supreme Court and the Seventh Circuit
have recognized that ballot access implicates the right of association and is a
fundamental right guaranteed by the Fourteenth Amendment. See Ill. State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (“Restrictions on
access to the ballot burden two distinct and fundamental rights, ‘the right of
11
individuals to associate for the advancement of political beliefs, and the right of
qualified voters, regardless of their political persuasion, to cast their votes
effectively.”); Briscoe, 435 F.2d at 1053 (“It is by now well established that the
concept of ‘liberty’ protected against state impairment by the Due Process Clause of
the Fourteenth Amendment includes the freedoms of speech and association and
the right to petition for redress of grievances. . . . Access to official election ballots
represents an integral element in effective exercise and implementation of those
activities.”). Plaintiffs allege that Defendants are state actors who prevented them
from appearing on the ballot when they improperly applied Illinois law regarding
nomination deadlines and objections. Plaintiffs allege they were only able to secure
places on the ballot by recourse to filing this complaint. Such allegations state a
claim for a substantive due process violation.
Defendants argue that Plaintiffs’ Due Process claim should be dismissed
because the “the freedom to associate is a core right protected by the First
Amendment . . . and ‘[w]here a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government behavior,
that Amendment, not the more generalized notion of ‘substantive due process’ must
be the guide for analyzing these claims.” R. 30 at 10 (quoting Albright v. Oliver, 510
U.S. 266, 271-72 (1994)). Contrary to Defendants argument, however, courts
frequently discuss the right of ballot access and the right of association as being
derived from, or protected by, both the First and Fourteenth Amendments. See
Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (“it is beyond debate that freedom
12
to engage in association for the advancement of beliefs and ideas is an inseparable
aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech,” and “ballot access restrictions . . .
affect[] . . . the interwoven strands of ‘liberty’”); see also Corrigan v. City of
Newaygo, 55 F.3d 1211, 1217 (6th Cir. 1995) (“The Supreme Court has stated that a
single balancing test should be used in ballot access cases to evaluate freedom of
association, equal protection and due process interest.”). Moreover, the standard of
review applied to ballot access claims under the First Amendment, and the
standard applied to alleged violations of substantive due process, both require a
court to “weigh” the extent of the restrictions on the plaintiff’s rights against the
magnitude of the state’s interest in imposing such a burden. Compare Lee v. Keith,
463 F.3d 763, 768 (7th Cir. 2006) (“Ballot access restrictions are evaluated under a
flexible standard that weighs the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate against the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking into consideration the
extent to which those interests make it necessary to burden the plaintiff’s rights. . .
. Restrictions that ‘severely’ burden the exercise of constitutional rights must be
‘narrowly drawn to advance a state interest of compelling importance.’”), with
Brown v. City of Michigan City, 462 F.3d 720, 732 (7th Cir. 2006) (“the Fourteenth
Amendment forbids the government to infringe . . . fundamental liberty interests at
all, no matter what process is provided, unless the infringement is narrowly tailored
13
to serve a compelling state interest”). In any event, the Seventh Circuit has
frequently held that “plaintiffs are not required to plead legal theories,” Del
Marcelle v. Brown County Corp., 680 F.3d 887, 909 (7th Cir. 2012), and has applied
that principle to allegations sufficient to state a claim for violation of the
Fourteenth Amendment. Id. (holding that even though the plaintiff described his
claim as a violation of Due Process that “does not necessarily preclude a valid
assertion of an equal protection violation.”). Thus, the Court rejects Defendants
argument that Plaintiffs’ decision to caption their claim for violation of their ballot
access rights under the Due Process Clause rather than the First Amendment is a
reason to dismiss that claim.
III.
Equal Protection
Plaintiffs allege that Defendants violated the Equal Protection Clause when
they intentionally misapplied Illinois law regarding nomination deadlines and
objections in order to keep Plaintiffs off the ballot due to Plaintiffs’ political
affiliation. “To show a violation of the Equal Protection Clause, plaintiffs must
prove that the defendants’ actions had a discriminatory effect and were motivated
by a discriminatory purpose.” Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th
Cir. 2001). “To prove demonstrate discriminatory effect . . . plaintiffs are required to
show . . . . that [defendants] treated them differently than other similarly situated
individuals.” Chavez, 251 F.3d at 636. “Discriminatory purpose . . . implies more
than intent as volition or intent as awareness of consequences. It implies that a
decision maker singled out a particular group for disparate treatment and selected
14
his course of action at least in part for the purpose of causing its adverse effects on
the identifiable group.” Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996); see
also Snowden v. Hughes, 321 U.S. 1, 8 (1944) (“administration by state officers os a
state statute fair on its fact, resulting in unequal application to those who are
entitled to be treated alike, is not a denial of equal protection unless there is shown
to be present in it an element of intentional or purposeful discrimination”). When a
defendant’s discriminatory action is alleged to have burdened a fundamental right,
as Plaintiffs allege here with respect to their right to ballot access and right of
association, the action is subject to strict scrutiny, meaning that the discriminatory
action is permissible only if it is narrowly tailored to address a compelling state
interest. See Socialist Workers Party, 440 U.S. at 184 (“Restrictions on access to the
ballot burden two distinct and fundamental rights . . . . When such vital individual
rights are at stake, a State must establish that its classification is necessary to
serve a compelling interest.”); see also Foucha v. Louisiana, 504 U.S. 71, 115 (1992)
(“Certain substantive rights we have recognized as ‘fundamental’; legislation
trenching upon these is subjected to ‘strict scrutiny,’ and generally will be
invalidated unless the State demonstrates a compelling interest and narrow
tailoring.”).
In the context of Plaintiffs’ alleged political rivalry with Defendants, both
discriminatory purpose and effect can be plausibly inferred from the irrationality of
Defendants’ alleged actions. Defendants did not accept Plaintiffs’ nomination papers
filed on January 28 allegedly because they were filed too early. But when Plaintiffs
15
attempted to comply with their perception of Defendants’ understanding of the
relevant deadline by refiling their nomination papers on February 27, Defendants
again refused to certify Plaintiffs to the ballot. This time, however, Defendants
allegedly asserted that the filing deadline was actually December 22 of the previous
year and Plaintiffs’ filing was too late.
Additionally, despite Defendants’ determination that Plaintiffs should not be
certified to the ballot because their February 27 filing was too late, Defendants
accepted an objection to Plaintiffs’ nomination nine days later. Based on Plaintiffs’
theory of the case, if it was possible to file an objection to Plaintiffs’ nomination,
Clerk Walters must have accepted their nomination papers such that he should
have certified their names for the ballot well before the objection was ever filed. If
he had not accepted their nomination then there should not have been any
nomination to which an objection could have been filed. And further, even though
an objection was filed against their nominations, Plaintiffs allege that Clerk
Walters should have still certified their names to the ballot with the phrase
“objection pending” appended to their names.
Furthermore, Defendants allegedly failed to comply with the statutory
deadline for holding a hearing regarding the objection to Plaintiffs’ nominations.
The statute Plaintiffs cite provides that a hearing should have been scheduled
within five days of the objection’s filing. Plaintiffs allege, however, that Defendants
ensured that the hearing was not scheduled to take place until March 24, which
was less than two weeks prior to the election on April 7. Although Clerk Walters
16
eventually agreed to certify Plaintiffs’ names to the ballot once the objection was
withdrawn the day of the scheduled hearing, counsel for Cook County Clerk Orr
represented to the Court that Plaintiffs would not be added to the ballot absent a
court order because the relevant deadlines had passed.
Defendants’ alleged actions are sufficiently illogical that it is plausible to
infer that Defendants would not have taken these actions in the normal course with
respect to similarly situated potential candidates, and that Defendants acted as
they did because they sought to harm Plaintiffs politically. These alleged factual
circumstances also state a plausible claim that Defendants intentionally delayed
addressing the objection to Plaintiffs’ nominations in violation of Illinois law in
order to prevent them from appearing on the ballot.
Defendants’ only argument that Plaintiffs’ allegations are insufficient to state
a claim is that Plaintiffs have failed to allege discriminatory effect because they
have failed to allege that they were treated differently than similarly situated
individuals. Plaintiffs argue that they have alleged discriminatory effect by alleging
that Defendants ensured that a potential political candidate from their own party
was included on the ballot in 2013 even though that candidate’s nomination papers
were filed late. Defendants, however, argue that Plaintiffs are not similarly situated
to the potential candidate from 2013 because that candidate’s nomination papers
were late by minutes, whereas Defendants determined that Plaintiffs’ nomination
papers were days late.
17
The Court agrees that Plaintiffs are not similarly situated to the candidate
from 2013, but holds that this is not fatal to Plaintiffs’ Equal Protection claim.
According to the letter Fornaro sent to the Village clerk advising her to certify the
potential candidate to the ballot in 2013 (which Plaintiffs attached to the complaint)
the potential candidate had attempted to file his nomination on the last day of the
filing period. The 2013 dispute arose because the Village clerk unusually limited
her office hours that day with insufficient notice, and Fornaro advised her that the
limitation of hours was impermissible and could not serve to invalidate the
potential candidate’s nomination. In his letter, Fornaro justified his advice to the
Village clerk with reference to Welch v. Educational Officers Electoral Bd. for
Proviso High Sch. Dist. 209, in which the court held that a potential candidate’s
nomination papers that were time stamped minutes after the official close of
business on the last day of the filing period were nonetheless timely. 750 N.E.2d
222 (Ill. App. Ct. 1st Dist. 2001). The court held that once the election office
accepted and stamped the papers, the election official did not have discretion to
decline to certify the nomination to the ballot as untimely, because a timestamp
minutes late did not make it “apparent” from the face of the nomination papers that
the filing failed to “conform” to the statutory requirements. Id. at 232. The court
also held, by contrast, that a nomination’s nonconformity is “apparent” from the
face of the filing when it is days late, and election officials responsible for ballot
certification have the responsibility and discretion to reject such nomination papers
as untimely. Id. at 229.
18
The distinction drawn by the court in Welch, and relied upon by Fornaro in
2013, shows that the potential candidate from 2013 was not similarly situated to
Ealey, Brewer, and Little. The validity of the 2013 candidate’s nomination turned
on the clerk’s discretion to apply her office hours to the filing deadline, whereas in
this case Defendants contend that Plaintiffs’ nomination papers were filed days
outside the filing period. The 2013 candidate cannot serve as a basis for Plaintiffs’
allegation that Fornaro discriminated against them. And it certainly cannot form a
basis for such a claim against to Scarlato or Clerk Walters since Plaintiffs have not
alleged that they were involved in the 2013 dispute.
Nevertheless, a plaintiff is not required to specifically allege similarly
situated individuals in order to state an Equal Protection claim. See Swearingen-El
v. Cook County Sheriff’s Dep’t, 416 F. Supp. 2d 612, 617 (N.D. Ill. Jan. 12, 2006)
(“[The plaintiff] does not need to specifically identify similarly situated individuals
in his complaint.” (citing Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005))); see also
Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015) (“But nonetheless, we
have repeatedly confirmed that plaintiffs alleging class-of-one equal protection
claims do not need to identify specific examples of similarly situated persons in
their complaints.”). Further, even though the specific comparator Plaintiffs cite does
not support their Equal Protection claim, the totality of Plaintiffs’ allegations
plausibly suggests that Defendants intentionally singled out Plaintiffs to prevent
their appearance on the ballot. The irrationality of Defendants’ alleged justification
for withholding certification implies that it was specifically devised to harm
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Plaintiffs. Defendants’ decisions to accept an objection to Plaintiffs’ nomination even
though it had not been certified, and then delay a hearing on that objection in
apparent contradiction of the statutorily mandated schedule, are equally irrational
and appear designed to prevent Plaintiffs from appearing on the ballot. These
allegations are sufficient to state a claim for an Equal Protection violation.
IV.
Qualified Immunity
Defendants argue that even if Plaintiffs have plausibly stated claims for Due
Process and Equal Protection violations, Defendants are entitled to qualified
immunity. “Qualified immunity shields government officials from liability under
Section 1983 for actions taken while performing discretionary functions, unless
their conduct violates clearly established statutory or constitutional rights of which
a reasonable person would have known.” Gruenberg v. Gempler, 697 F.3d 573, 578
(7th Cir. 2012). “In deciding whether a right is ‘clearly established,’ courts ask
whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Doe v. Village of Arlington Heights, 782 F.3d 911, 915
(7th Cir. 2015). “A plaintiff bears the burden of establishing that the constitutional
right was clearly established.” Id. “Although the plaintiff need not point to a case
directly on point, existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. “In other words, the plaintiff must
demonstrate either that a court has upheld the purported right in a case factually
similar to the one under review, or that the alleged misconduct constituted an
obvious violation of a constitutional right.” Id.
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The Court has cited a number of cases in the foregoing discussion of
Plaintiffs’ Due Process and Equal Protection claims that establish that the right to
ballot access is derived from the fundamental right to association protected by the
Fourteenth Amendment. See Socialist Workers Party, 440 U.S. at 184; Briscoe, 435
F.2d at 1053. These cases show that the right is clearly established, and as
discussed, Plaintiffs have plausibly stated a claim the Defendants violated that
right. Thus, the Court cannot find as a matter of law that Defendants are entitled to
quailed immunity at this stage of the case.
Defendants argue that Plaintiffs cannot demonstrate that their right is
clearly established because they concede that the statute they rely on to allege that
Defendants imposed improper nomination deadlines is ambiguous. See R. 26 at 8.
Defendants contend that if “reasonable attorneys can dispute the statute . . . the
Plaintiffs’ rights arising from that statute are not ‘clearly established’.” Id. at 9. But
Plaintiffs do not merely allege that Defendants incorrectly applied the relevant
statutory deadlines. Rather, Plaintiffs allege that Defendants’ proffered justification
for that decision is entirely illogical. The allegation that Defendants initially stated
that Plaintiffs’ filing was early on January 28, and later asserted that the deadline
was actually prior to that date, plausibly alleges that Defendants were not acting
under a good faith interpretation of the statute, but were intentionally hoping to
stymie Plaintiffs’ nominations. Moreover, Defendants do not even attempt to justify
their delay in certifying Plaintiffs to the ballot after Plaintiffs refiled their
nomination papers on February 27. Even if Defendants’ initial rejection of Plaintiffs’
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January 28 filing was justified, Defendants’ alleged actions after February 27 are
sufficient to deny them qualified immunity at this stage.4
V.
Noerr-Pennington Doctrine
Fornaro and Scarlato also argue that they are entitled to immunity under the
Noerr-Pennington doctrine. That “doctrine protects litigation, lobbying, and speech,”
New West, L.P. v. City of Joliet, 491 F.3d 717, 722 (7th Cir. 2007), because the First
Amendment protects the right “to petition the Government for a redress of
grievances.” Mercatus Group, LLC v. Lake Forest Hosp., 641 F.3d 834, 837 (7th Cir.
2011). Contrary to Defendants’ contention, Plaintiffs do not allege that Fornaro and
Scarlato were “petitioning” the Village to act in a certain way with respect to
Plaintiffs’ nomination. Rather, Fornaro and Scarlato were acting in their capacity
as counsel to the Village. Thus, Noerr-Pennington immunity is inapplicable here.
VI.
State Law
Defendants also argue Plaintiffs’ claims should be dismissed because
Defendants correctly applied the law to determine that Plaintiffs’ January 28 filing
was too early. It is unnecessary for the Court to determine whether Defendants are
correct because Plaintiffs also allege that Defendants told them that the relevant
deadline was December 22, and then acted to delay a hearing on the objection to
Defendants also argue that Clerk Walters is entitled to qualified immunity
because he acted on legal advice under “extraordinary circumstances.” See Davis v.
Zirkelbach, 149 F.3d 614, 620 (7th Cir. 1998). Such a defense, however, “ordinarily
should fail, since a reasonably competent public official should know the law
governing his conduct.” Id. It may be that Clerk Walters will be able to develop facts
to support this theory of immunity. But it is not available to him on the basis of
Plaintiffs’ allegations.
4
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their nominations. Defendants do not attempt to argue that these actions conformed
to the relevant statutes. Thus, even if Plaintiffs’ January 28 filing was early,
Plaintiffs’ allegations still plausibly state claims that Defendants’ actions were
intended to ensure that Plaintiffs’ names did not reach the ballot in violation of
state law and the Fourteenth Amendment.
VII.
Monell Liability
Defendants contend that Plaintiffs have not sufficiently alleged Monell
liability. Plaintiffs, however, have sued Clerk Walters in both his personal and
official capacity. By suing Clerk Walters in his official capacity, they have
effectively sued the Village. See Snyder, 745 F.3d at 246 (“[The plaintiff] sued the
County Defendants in their official capacities under 42 U.S.C. § 1983, which is
essentially another way of suing the county-affiliated entity they represent.”). In
support of this claim, Plaintiffs have alleged that Clerk Walters is a policymaker for
purposes of determining whether nomination papers are in “apparent conformity”
with the statute. See Valentino v. Village of South Chicago Heights, 575 F.3d 664,
676 (7th Cir. 2009) (the official in question does not have to be “a policymaker on all
matters for the [entity], but . . . [only] a policymaker in [the] particular area, or on
[the] particular issue.”). This is sufficient to state a claim against him in his official
capacity.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss, R. 26, is denied.
The parties should discuss and agree upon an appropriate discovery cut-off date. A
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status hearing is set for February 5, 2016 to set a discovery cut-off date or refer the
case for a settlement conference.
ENTERED
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: February 1, 2016
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