Kowalski v. Cook County Officers' Electoral Board et al

Filing 29

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 3/1/2016. Mailed notice(sj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAN KOWALSKI,
Plaintiff,
v.
COOK COUNTY OFFICERS
ELECTORAL BOARD, et al.,
Defendants.

)
)
)
) Case No. 16-cv-1891
)
) Judge John W. Darrah
)
)
)

MEMORANDUM OPINION AND ORDER
Plaintiff filed a three-count Complaint, alleging a civil rights violation under 42 U.S.C.
§ 1983, a violation of the Voting Rights Act of 1965, and a violation of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Plaintiff has now filed a
Motion for Injunctive Relief and Mandamus [7], requesting that her name be placed on the ballot
for the March 15, 2016 primary election. For the reasons discussed below, Plaintiff’s Motion [7]
is denied.
BACKGROUND
Plaintiff Jan Kowalski is a resident of Illinois and a candidate for the Office of the
Recorder of Deeds for Cook County. The Cook County Officers Election Board (“CCOEB”) is a
statutory entity that determines the validity of nomination papers. On November 30, 2015,
Plaintiff filed her petition for nomination. On December 7, 2015, an objector filed a petition
alleging that Plaintiff’s nominating petition was insufficient. An examination of the nominating
petition, pursuant to the rules of procedure adopted by the CCOEB, took place from
December 17 to December 22, 2015. Plaintiff received a Petition Summary Report on

December 22, 2015, at 6:27 p.m., stating that the nominating petition had 554 fewer signatures
than required. On December 23, 2015, Plaintiff filed an emergency motion to extend the
deadline for a motion for the CCOEB to review objections to the petition examination. The
CCOEB hearing officer denied the emergency motion. On December 24, 2015, Plaintiff filed a
motion to reconsider the hearing officer’s order and a motion for the CCOEB to review
objections. On December 28, 2015, the hearing officer denied the motion to reconsider and
recommended that the CCOEB sustain the challenge to Plaintiff’s nomination petition and
declare the nomination petition invalid. At a hearing on December 30, 2015, the CCOEB issued
a decision sustaining the challenge to Plaintiff’s nomination petition and holding it invalid.
Plaintiff filed for judicial review; and, on January 27, 2016, the Circuit Court of Cook
County denied her petition and dismissed, with prejudice, the counts seeking mandamus and
injunctive relief. Plaintiff then appealed the Circuit Court decision; and, on February 17, 2016,
the Illinois Appellate Court affirmed the CCOEB decision. See Kowalski v. Cook Cnty. Officers
Electoral Bd., et al., 2016 WL 687106, 2016 IL App (1st) 160217-U (Ill. App. Ct.
Feb. 17, 2016).
LEGAL STANDARD
“[A] writ of mandamus will be awarded only if a plaintiff establishes a clear right to
relief, a clear duty of the public official to act, and a clear authority in the public official to
comply with the writ.” People ex rel. Madigan v. Snyder, 804 N.E.2d 546, 552 (Ill. 2004).
“To obtain a preliminary injunction, the moving party must make an initial showing that
(1) it will suffer irreparable harm in the period before final resolution of its claims; (2) traditional
legal remedies are inadequate; and (3) the claim has some likelihood of success on the merits.”
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BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24 (7th Cir. 2015) (citing Girl Scouts of Manitou
Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008)). “If the
moving party makes this showing, the court weighs the factors against one another, assessing
whether the balance of harms favors the moving party or whether the harm to other parties or the
public is sufficiently weighty that the injunction should be denied.” BBL, Inc., 809 F.3d at 324
(citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012)).
ANALYSIS
Younger
Defendants argue Plaintiff’s claims are barred by the Younger abstention doctrine. The
abstention doctrine “is an exception to the general rule that federal courts must hear and decide
cases within their jurisdiction.” Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 815 (7th
Cir. 2014). The doctrine requires federal courts to dismiss cases involving certain types of
important state proceedings. Id. Abstention is applicable “where federal jurisdiction would
intrude into ongoing state criminal proceedings, or into certain civil enforcement proceedings
(judicial or administrative) akin to criminal prosecutions, or into civil proceedings ‘that implicate
a State's interest in enforcing the orders and judgments of its courts.’” Id. at 815 (citing
Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013)). Abstention is required when
“state civil proceedings are ‘judicial in nature,’ involve important state interests, and offer an
adequate opportunity to review the federal claim.” Mulholland, 746 F.3d at 816. However, “the
critical consideration in evaluating a state civil proceeding is how closely it resembles a criminal
prosecution.” Id. at 816.

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In Mulholland, the Seventh Circuit reversed a decision by the district court to abstain
under the Younger doctrine where an election board enforced an anti-slating statute that had been
previously ruled unconstitutional. The district court interpreted “the scheduled Election Board
meeting and ongoing state lawsuit as the type of civil enforcement proceedings that are close
enough to a criminal prosecution to warrant Younger abstention.” Id. The Seventh Circuit
disagreed because the dispute “involved an agency adjudication of state law that was initiated by
one private party against another and that presented no possibility of criminal penalty.” Id. at
816-17. Here the CCOEB’s adjudication of state law was initiated by one private party against
another and presented no possibility of criminal penalty. Therefore, abstention under Younger is
inappropriate.
Motion for Mandamus
Plaintiff first asks for a writ of mandamus pursuant to Federal Rule of Civil Procedure 81.
Federal writs of mandamus were abolished under the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 81(b). Pursuant to Illinois law, a court may use a writ of mandamus to direct a public
official or body to perform a ministerial duty. See 735 Ill. Comp. Stat. 5/14-101 et seq. “[A]
writ of mandamus will be awarded only if a plaintiff establishes a clear right to relief, a clear
duty of the public official to act, and a clear authority in the public official to comply with the
writ.” Snyder, 804 N.E.2d at 552. “[M]andamus cannot be used to direct a public official or
body to reach a particular decision or to exercise its discretion in a particular manner, even if the
judgment or discretion has been erroneously exercised.” Read v. Sheahan, 833 N.E.2d 887, 895
(Ill. App. Ct. 2005) (internal quotations and citations omitted). Mandamus is improper “if it
substitutes the court’s discretion or judgment for that of the official” or “if factual questions are
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present.” Cordrey v. Prisoner Review Bd., 21 N.E.3d 423, 428 (Ill. 2014) (citing People ex rel.
Madigan v. Kinzer, 902 N.E.2d 667 (Ill. 2009), and Touhy v. State Board of Elections, 342
N.E.2d 364 (Ill. 1976)).
Plaintiff argues that since she submitted a nomination petition with the required amount
of signatures, placing her name on the ballot for the primary election is a purely ministerial act.
However, the CCOEB determines whether the signatures are valid, which is an adjudicatory
decision. Here, Plaintiff is asking to substitute the court’s judgment and discretion for that of the
CCOEB as she requests overruling the objections to her petition. Plaintiff also argues that the
CCOEB was improperly convened and lacked jurisdiction to sustain the objections to her
petition. Specifically, she argues that no members of the Board were physically present but
inappropriately represented by designees. However, the Illinois Election Code states that county
officer election boards for a county with a population of more than 3,000,000 “shall be
composed of the county clerk, or an assistant designated by the county clerk, the State's Attorney
of the county or an Assistant State's Attorney designated by the State's Attorney, and the clerk of
the circuit court, or an assistant designated by the clerk of the circuit court.” 10 Ill. Comp. Stat.
5/10-9(2.5). Plaintiff is not entitled to a writ of mandamus requiring the CCOEB to reverse its
decision and place her name on the ballot. Plaintiff’s Motion for Mandamus is denied.
Motion for Injunctive Relief
Plaintiff also requests an injunction, requiring the CCOEB to overrule the objections to
her nominating petition and add her name to the ballot for the March 15, 2016 primary election.
If the party moving for a preliminary injunction shows some likelihood of success on the merits,
no adequate remedy at law, and irreparable harm, the district court “must consider the irreparable
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harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm
against the irreparable harm the moving party will suffer if relief is denied.” Stuller, Inc. v.
Steak N Shake Enterprises, Inc., 695 F.3d 676, 678 (7th Cir. 2012) (citing Ty, Inc. v.
Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)). The court must also consider the public
interest in granting or denying an injunction. Id. Plaintiff appears to seek a mandatory
preliminary injunction, “that is, an injunction requiring an affirmative act by the defendant[s].”
Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). “Because a mandatory
injunction requires the court to command the defendant to take a particular action, ‘mandatory
preliminary writs are ordinarily cautiously viewed and sparingly issued.’” Id. (quoting Jordan v.
Wolke, 593 F.2d 772, 774 (7th Cir. 1978))
To request a preliminary injunction, Plaintiff must show “(1) that she has no adequate
remedy at law; (2) that she will suffer irreparable harm if the preliminary injunction is not issued;
(3) that the irreparable harm she will suffer if the preliminary injunction is not granted is greater
than the irreparable harm the defendant will suffer if the injunction is granted; (4) that she has a
reasonable likelihood of success on [the] merits; and (5) that the injunction will not harm the
public interest.” Johnson v. Cook Cty. Officers Electoral Bd., 680 F. Supp. 1229, 1232 (N.D. Ill.
1988) (citing Curtis v. Thompson, 840 F.2d 1291, 1296 (7th Cir. 1988)). Many of the factors
weigh in favor of issuing a preliminary injunction. Plaintiff has no adequate remedy at law.
Plaintiff shall suffer irreparable harm if a preliminary injunction is not granted, and that harm is
more than Defendants will suffer by putting her name on the ballot. And there is no indication
that the injunction would harm the public interest.

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However, Plaintiff has not demonstrated likelihood of success on her motion to justify a
mandatory injunction. In Count I, Plaintiff alleges a violation of her rights under the First and
Fourteenth Amendments. Signature requirements, in and of themselves, are routinely upheld as
not overly burdensome. See, e.g., Stone v. Bd. of Election Comm’rs for City of Chicago, 750
F.3d 678, 683 (7th Cir. 2014) (upholding a 12,500 signature requirement for Chicago mayor race
eligibility). There is also nothing to show that Plaintiff was uniquely and discriminatorily
burdened by the signature verification or hearing processes. In Count II, Plaintiff argues that a
lack of updated and integrated voting registration data disenfranchises racial minority voters.
Defendants respond that their voter registration records are an updated, amalgamated database of
the Clerk of Cook County and the Chicago Board of Election Commissioners. In Count III,
Plaintiff alleges a civil RICO violation. But Plaintiff makes no allegation of what the
racketeering activity is, how the Defendants are engaged in interstate commerce, or how
Defendants have any effect on interstate commerce. An injunction is inappropriate if a plaintiff
cannot demonstrate “at least a negligible chance of success.” Johnson, 680 F. Supp. at 1233
(citing Curtis, 840 F.2d at 1296). Plaintiff’s Motion for Injunctive Relief is denied.
Res Judicata
Defendants further argue that the present case is barred by res judicata. As the prior
adjudication occurred in Illinois state court, Illinois res judicata principles apply. Chicago Title
Land Trust Co. v. Potash Corp. of Saskatchewan Sales, 664 F.3d 1075, 1079 (7th Cir. 2011).
For res judicata to apply, there must be “(1) a final judgment on the merits rendered by a court of
competent jurisdiction, (2) the same cause of action, and (3) the same parties or their ‘privies.’”
Id. (citing Hudson v. City of Chicago, 889 N.E.2d 210, 215 (Ill. 2008)). Res judicata bars every
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matter determined in the first suit, as well as “every matter that might have been raised and
determined in that suit.” Hudson, 889 N.E.2d at 217.
In her state complaint, Plaintiff included a petition for mandamus and a petition for
injunctive relief as counts IV and V. The state complaint raised the same bases and arguments
for the petitions as the current, federal Complaint. In fact, Plaintiff’s Motion for Injunctive
Relief and Mandamus is almost exactly the same as the counts requesting similar relief in state
court. As set out above, the state court dismissed counts IV and V with prejudice, and Plaintiff
appealed the order. All res judicata factors are present. A final judgment on the merits was
issued by the state court; Plaintiff’s complaints raise the same cause of action under different
theories; and the parties are the same. Further, the CCOEB’s decision was upheld by the Illinois
Appellate Court. Plaintiff’s requests for injunctive relief and mandamus relief are further barred
by res judicata.
CONCLUSION
Plaintiff’s Motion for Injunctive Relief and Mandamus [7] is denied.

Date:

March 1, 2016
JOHN W. DARRAH
United States District Court Judge

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