Kowalski v. Cook County Officers' Electoral Board et al

Filing 54

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on September 13, 2016. Mailed notice (ph, )

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

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

MEMORANDUM OPINION AND ORDER
Plaintiff Jan Kowalski filed a Complaint, alleging violations of her rights under the First
and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, a violation of § 2 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973, et seq., and a violation of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq. Plaintiff also filed a Motion for
Injunctive Relief and Mandamus [7], which was denied on March 1, 2016. An Amended
Complaint was filed that made the same allegations but added Ziff Sistrunk as a named Plaintiff.
Defendants have filed a Motion to Dismiss Plaintiffs’ Amended Complaint [41]. Defendants’
Motion [41] is granted with prejudice.
BACKGROUND
Kowalski was a candidate in the Primary Election of March 15, 2016, for the Office of
the Recorder of Deeds in Cook County, Illinois. (Amend. Compl. ¶¶ 1-2.) The Cook County
Officers Electoral Board (“CCOEB”) is a statutory entity that has the power to determine the
validity of nomination papers. (Id. ¶ 5.) Kowalski filed her Petition for Nomination on
November 30, 2015. (Id. ¶ 16.) The Petition contained 13,430 signatures by registered voters of
Cook County, which is above the minimum number of signatures required to be placed on the

ballot. (Id. ¶¶ 17-18.) On December 7, 2015, Audrey Jacox filed an Objector’s Petition,
alleging the Nomination Petition was insufficient. (Id. ¶ 24.) Between December 17 and
December 22, 2015, the CCOEB conducted a “Rule 6 records examination.” (Id. ¶ 26.) On
December 22, 2015, Kowalski received the final Petition Summary Report from the CCOEB.
(Id. ¶ 31.) The report stated that the Petition for Nomination had 554 fewer valid signatures than
what was required. (Id.) Plaintiff, Ziff Sistrunk (“Sistrunk”), is an African-American Cook
County resident whose signature was disallowed on Kowalski’s Petition for Nomination. (Id.
¶¶ 3-4, 21.)
Kowalski filed an emergency motion with the CCOEB on December 23, 2015, asking to
extend the deadline for a Rule 8 motion, which would trigger a review of objections made during
the Rule 6 records examination. (Id. ¶¶ 25, 35.) The CCOEB’s hearing officer denied the
emergency motion. (Id. ¶ 37.) Kowalski filed a motion to reconsider the denial of the
emergency motion, which was also denied on December 28, 2015. (Id. ¶ 40.) The hearing
officer further recommended that the CCOEB sustain the Objector’s Petition and invalidate
Kowalski’s Petition for Nomination. (Id.) On December 30, 2015, the CCOEB sustained the
Objector’s Petition; and Kowalski’s name was removed from the March 15, 2016 Primary
Ballot. (Id. ¶ 47.)
Kowalski filed for judicial review of the CCOEB’s decision to remove her name from the
ballot. Kowalski v. Cook County Officers Electoral Bd., 2016 IL App (1st) 160528-U, appeal
denied, stay denied, 120549, 2016 WL 1377955 (Ill. Mar. 14, 2016). The Circuit Court of Cook
County granted summary judgment in favor of the CCOEB and their decision. Id. Kowalski
then appealed the Circuit Court opinion to the Illinois Appellate Court, who affirmed the
CCOEB and Circuit Court decision. Id.

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Kowalski alleges she was denied substantive rights during the “Rule 6 records
examination.” (Amend. Compl. ¶ 27.) Kowalski also claims there were substantive and
procedural due-process violations that resulted in sustaining the Objector’s Petition. (Id. ¶ 49.)
In addition, Kowalski claims that the CCOEB decision violates the voters of Cook County’s
procedural and substantive due-process rights. (Id. ¶ 50.)
LEGAL STANDARD
A Rule 12(b)(1) motion challenges federal jurisdiction, and the plaintiff bears the burden
of establishing the elements necessary for jurisdiction, including standing, have been met.
Scanlan v. Eisenberg, 669 F.3d 838, 841-42 (7th Cir. 2012). In ruling on a 12(b)(1) motion, the
court may look outside of the complaint's allegations and consider whatever evidence has been
submitted on the issue of jurisdiction. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995).
Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). However,
plaintiffs are not required to “plead the elements of a cause of action along with facts supporting
each element.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786
F.3d 510, 517 (7th Cir. 2015). Rather, the complaint must provide a defendant “with ‘fair
notice’ of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)
(quoting Fed. R. Civ. P. 8(a)(2) and Twombly, 550 U.S. at 555).

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For purposes of a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), all wellpleaded factual allegations are accepted as true, and all reasonable inferences are construed in
plaintiff’s favor. See, e.g., Scanlan, 669 F.3d at 841; Tamayo, 526 F.3d at 1081.
ANALYSIS
12(b)(1)
Defendants move to dismiss the Amended Complaint under Rule 12(b)(1), stating that
Plaintiffs do not have jurisdiction to bring this claim in federal court. Defendants argue that
Plaintiffs do not have Article III standing, that they are immune from suit under the Eleventh
Amendment, and that Plaintiffs’ claims are precluded by res judicata.
Article III Standing
Defendants first argue that Plaintiff does not have Article III standing to bring a claim in
federal court. For Article III standing, three elements must be satisfied: (1) plaintiff must have
suffered an injury in fact, (2) there must be a causal connection between the injury and the
conduct, and (3) it must be likely that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Sumers v.
Earth Island Inst., 555 U.S. 488, 493 (2009).
Under the first element, a plaintiff must allege a sufficient injury that is concrete and
particularized. Lujan, 504 U.S. at 560. Plaintiffs allege that they were injured because of a
violation of their constitutional rights under the First and Fourteenth Amendment, abridgement
of their right to vote under the Voting Rights Act, and by CCOEB’s racketeering activities.
(Amend. Compl. ¶¶ 51-81.) Plaintiffs allege that the CCOEB’s actions disenfranchised voters
and deliberately harmed minority voting strength. However, an Illinois court has affirmed “the
decision of the Board declaring petitioner’s nomination papers for the office of Recorder of

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Deeds of Cook County invalid and ordering that her name not be printed on the ballot for the
primary election to be held on March 15, 2016.” Kowalski v. Cook Cty. Officers Electoral Bd.,
2016 IL App (1st) 160217-U, ¶ 18, 2016 WL 687106, * 5 (Ill. App. Ct. Feb 17, 2016). Plaintiffs
have not suffered an injury from the CCOEB following its procedures. Finally, Plaintiffs allege
the CCOEB has engaged in racketeering under § 1962 of RICO but do not allege what the
racketeering conduct is or how they have been harmed in their “business or property.” 18 U.S.C.
§ 1964(c). Plaintiffs allege personal injuries, which “are not compensable under RICO.” Doe
v. Roe, 958 F.2d 763, 770 (7th Cir. 1992). Plaintiffs have not shown that they suffered a
concrete and particularized injury.
The next element that must be satisfied is causation. Article III standing requires “butfor” causation. Kyles v. J.K. Guardian Sec. Services, Inc. 222 F.3d 289, 294 (7th Cir. 2000).
Plaintiffs allege that but for the CCOEB’s alleged violations, Plaintiffs would not have been
harmed. Plaintiffs have alleged that the sole cause of their injuries arose through the CCOEB’s
actions. Plaintiffs have sufficiently alleged “but-for” causation. 1
Finally, Plaintiffs must allege redressability. Lujan, 504 U.S. at 560. To satisfy
redressability, a Plaintiff must plead how a claimed injury would be redressed by a decision in its
favor. Id. Plaintiffs do not respond to Defendants’ arguments about redressability. A party
waives arguments by not “responding to alleged deficiencies in a motion to dismiss.” Alioto v.
Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011).

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Defendants argue that any harm suffered by Plaintiffs is due to Kowalski’s failure to
timely file a challenge to the registration record examination. However, at this stage of the case,
all well-pleaded allegations are accepted as true.
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Plaintiffs have not pled sufficient facts to allege a concrete and particularized injury and
have failed to address Defendants’ arguments regarding redressability. Plaintiffs have failed to
allege Article III standing.
11th Amendment
Defendants also argue that they are immune from suit under the Eleventh Amendment.
The Eleventh Amendment states that “[t]he judicial power of the United State shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another state, or by citizens or subjects of any foreign state.”
U.S. CONST. AMEND. XI. The Eleventh Amendment has been interpreted to guarantee that “an
unconsenting state is immune from suits brought in federal courts by her own citizens as well as
by citizens of another State.” Bd. of Regents of Univ. of Wis. Sys. v. Phx. Int’l Software, Inc.,
653 F.3d 448, 457 (7th Cir. 2011) (internal quotations omitted). Additionally, a suit “in which
the State or one of its agencies or departments is named as the defendant is proscribed by the
Eleventh Amendment.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99
(1984).
Defendants argue that the officers are state officials and that the CCOEB is a state
election board. Plaintiffs respond that the Cook County Officers Electoral Board is not a
sovereign “arm of the state” because it fails the two-prong test presented in Burrus v. State
Lottery Comm’n of Ind., 546 F.3d 417, 420 (7th Cir. 2008), and, therefore, that the CCOEB and
its officers are not immune under the Eleventh Amendment. However, the Cook County Clerk,
Cook County State’s Attorney, and Clerk of the Circuit Court of Cook County are creations of
the Illinois Constitution. See ILL. CONST. (1970) ART. VI, §§ 18, 19; ART. VII § 4(C); see also
County of Kane v. Carlson, 507 N.E.2d 482, 486-87 (Ill. 1987); Walker v. McGuire, 39 N.E.3d

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982, 986 (Ill. 2015). Further, county officers electoral boards are created by state statute. See 10
Ill. Comp. Stat. 5/10-9(2.5).
However, the Eleventh Amendment does not bar suits against state officials that have
allegedly violated the federal Constitution or suits to enforce federal statutes. Indiana Prot. &
Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010)
(citing Ex parte Young, 209 U.S. 123, 155–56 (1908); Ray v. Atlantic Richfield Co., 435 U.S.
151, 156 n. 6 (1978); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983);
MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 337 (7th Cir.
2000)). Plaintiffs, in part, seek to enforce the Voting Rights Act, and their suit is not barred to
the extent that they have alleged that Defendants have violated a federal statute.
Res Judicata
Defendants further argue that Plaintiffs’ claims are barred by res judicata. The doctrine
of res judicata, or claim preclusion, bars a litigant from bringing a claim that was previously
resolved in court. Parsons Steel, Inc. v. First Ala. Bank, 474 US. 518, 523 (1986); see also
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005). Because the
previous adjudication was 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) (citing Rockford Mut. Ins. Co. v. Amerisure Ins. Co., 925 F.2d 193, 195 (7th Cir.
1991)). Under Illinois law, res judicata applies when “there was a final judgment on the merits
rendered by a court of competent jurisdiction, there is an identity of cause of action, and there is
an identity of parties or their privies.” River Park, Inc. v. City of Highland Park, 703 N.E.2d
883, 889 (Ill. 1998) (citing Downing v. Chicago Transit Authority, 642 N.E.2d 456 (Ill. 1994)).

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Claim preclusion extends to claims that could have been raised in the preceding complaint.
Torcasso v. Standard Outdoor Sales, Inc., 626 N.E.2d 225, 228 (Ill. 1993).
Plaintiffs admit that the Illinois decisions here were final and were on the merits.
However, Plaintiffs argue that federal issues were not before the state court and that, therefore,
their current claims are not precluded. However, Kowalski voluntarily dismissed those claims
from the state lawsuit. Under Illinois law, res judicata applies to claims that were voluntarily
dismissed absent an express reservation of those claims for a second action. Brown v.
City of Chicago, 771 F.3d 413, 414-15 (7th Cir. 2014); Hudson v. City of Chicago, 889 N.E.2d
210, 213 (Ill. 2008). Kowalski brought her federal claims in state court and then voluntarily
dismissed those claims without expressly reserving them. Kowalski’s claims are barred by res
judicata.
Plaintiffs also argue that Sistrunk was not a party to the state-court actions and that
privity does not exist. However, Sistrunk may nevertheless be barred from bringing this
Complaint if his interests are sufficiently aligned with Kowalski. Privity “exist[s] between
parties who adequately represent the same legal interests.” Chicago Title, 664 F.3d at 1080 (7th
Cir. 2011) (quoting People ex. Rel. Burris v. Progressive Land Developers, 602 N.E.2d 820, 825
(Ill. 1992)). Further, a “party may be in privity with another party that adequately represents the
same legal interests even though the two parties’ claims are not the same.” Lawrence v. Bd. of
Election Comm’rs of City of Chicago, 524 F. Supp. 2d 1011, 1022 (N.D. Ill. 2007) (citing
Progressive Land Developers, Inc., 602 N.E.2d at 825). Kowalski raised claims that the
individuals who signed her petitions, including Sistrunk, were denied their rights under the First
and Fourteenth Amendment, as well as the Voting Rights Act. Kowalski was an adequate
representative of Sistrunk’s legal interests.

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Plaintiffs’ claims are barred by res judicata.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint [41] is granted with prejudice.

Date:

September 13, 2016
JOHN W. DARRAH
United States District Court Judge

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