De La Fuente v. State Of Illinois et al

Filing 17

ORDER Signed by the Honorable Amy J. St. Eve on 10/3/2016: The Court grants Defendants' motion pursuant to Rule 12(b)(1), dismissing the complaint with prejudice as to the State of Illinois and without prejudice as to Defendant Scholz. 7 . If Plaintiff intends to seek leave of Court to add a claim under 10 ILCS 5/7-43, he must file a formal motion pursuant to Federal Rule of Civil Procedure 15(a)(2) by October 14, 2016. The status hearing scheduled for November 21, 2016 is stricken. [For further details, see Order.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROQUE DE LA FUENTE,
Plaintiff,
v.
STATE OF ILLINOIS; CHARLES W. SCHOLZ,
CHAIRMAN OF THE ILLINOIS STATE BOARD
OF ELECTIONS; and DOES 1-20 INCLUSIVE,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 16-cv-06984
Judge Amy J. St. Eve

ORDER
In this action, Plaintiff Roque “Rocky” De La Fuente seeks a declaration that various
provisions of the Illinois Election Code violate his due process rights, as well as an order that his
name be placed on the 2016 Presidential ballot in Illinois as an independent candidate. (R.1,
Compl.). The named Defendants—the State of Illinois and Charles W. Scholz (“Scholz”), as
Chairman of the Illinois State Board of Elections—have moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (R.7).
For the following reasons, the Court grants Defendants’ motion, dismissing the complaint
with prejudice as to the State of Illinois and without prejudice as to Defendant Scholz. If
Plaintiff intends to seek leave of Court to add a claim under 10 ILCS 5/7-43, he must file a
formal motion pursuant to Federal Rule of Civil Procedure 15(a)(2) by October 14, 2016.
BACKGROUND
Plaintiff “is a candidate for President of the United States desiring to have his name put
on the 2016 Presidential ballot in Illinois” who “meets all the statutory requirements to place his
name on the ballot except for [certain] petition requirements” of the Illinois Election Code. (R.1,
Compl. ¶ 3).1 Plaintiff now challenges the validity of those requirements, including 10 ILCS
5/10-3 (regarding signatures required to nominate independent candidates); 10 ILCS 5/7-10, 10
ILCS 5/8-8, and 10 ILCS 5/10-4 (regarding the form and timing of nomination petitions,
including restrictions on petition circulators); 10 ILCS 5/10-8 (regarding objections to
nomination papers); and 10 ILCS 10/2 (regarding the qualification of a “political party”).

1

Defendants dispute this contention, arguing that Plaintiff has not met certain filing and notification deadlines
under the Illinois Election Code. (R.10, Opening Br. at 6; R.15, Reply Br. at 3) (citing 10 ILCS 5/10-5 and 10 ILCS
5/10-6). The Court, however, accepts all well-pled allegations as true against a Rule 12(b)(6) challenge. See
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

According to Plaintiff, this statutory scheme, viewed as a whole, “presents an undue burden to
ballot access” in violation of the First and Fourteenth Amendments. (Id. ¶ 28).
Defendants’ motion does not focus on the validity of the challenged statutes, either
individually or as a whole. Instead, Defendants argue that Plaintiff lacks standing to raise such
claims under a separate provision of the Illinois Election Code, 10 ILCS 5/7-43. According to
Defendants, because Plaintiff already ran—and lost—in the 2016 Democratic primary, this “sore
loser” statute bars him from running in the 2016 general election as an independent candidate.
The Court now addresses Defendants’ factual challenge to standing under Rule 12(b)(1).
LEGAL STANDARD
In ruling on a Rule 12(b)(1) motion to dismiss for lack of standing, “the district court
must accept as true all material allegations of the complaint, drawing all reasonable inferences
therefrom in the plaintiff’s favor.” Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003)
(citing Ret. Chicago Police Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)). District
courts may, however, “properly look beyond the jurisdictional allegations of the complaint and
view whatever evidence has been submitted on the issue to determine whether in fact subject
matter jurisdiction exists.” Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008) (citation and
quotation omitted). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of
establishing the required elements of standing[,]” including (i) injury in fact; (ii) causation; and
(iii) redressability. Lee, 330 F.3d at 468 (citation and quotation omitted). “If standing is
challenged as a factual matter, the plaintiff must come forward with ‘competent proof’—that is a
showing by a preponderance of the evidence—that standing exists.” Id.
ANALYSIS
I.

Dismissal of the State of Illinois

The State of Illinois first seeks dismissal on the basis that it is immune from suit under
the Eleventh Amendment. (R.10, Opening Br. at 2-3). Plaintiff does not challenge this request
for dismissal. (R.13, Response Br. at 11). Accordingly, the Court dismisses the State of Illinois
from this action, with prejudice.
II.

Standing
The Court turns to the application of 10 ILCS 5/7-43. That statute provides, in part, that:
A person (i) who filed a statement of candidacy for a partisan office as a qualified
primary voter of an established political party or (ii) who voted the ballot of an
established political party at a general primary election may not file a statement of
candidacy as a candidate of a different established political party or as an independent
candidate for a partisan office to be filled at the general election immediately following
the general primary for which the person filed the statement or voted the ballot.

10 ILCS 5/7-43.
2

Plaintiff’s complaint does not reference this provision. His response brief, however,
acknowledges its applicability and observes that it “poses a challenge[.]” (R.13, Response Br. at
6). Plaintiff admits that he “was listed on Illinois’ March 15, 2016 primary election ballot as a
democratic candidate for President” and that, “[a]bsent the full support of the Democratic Party,
[he] did not win the primary Democratic election.” (Id. at 4). Plaintiff appears to acknowledge
the central premise of Defendants’ Rule 12(b)(1) challenge – that is, if 10 ILCS 5/7-43 is valid,
“he cannot challenge other provisions [of the Illinois Election Code] as applied to other
candidates.” See Storer v. Brown, 415 U.S. 724, 737, 94 S. Ct. 1274, 1282, 39 L. Ed. 2d 714
(1974) (holding that a “disaffiliation statute” is “an absolute bar to candidacy, and a valid one”).
In response to the motion to dismiss, Plaintiff now requests leave to amend his complaint
to challenge the validity of 10 ILCS 5/7-43. (R.13, Response Br. at 2, 6-7). Such a request,
however, “must be made by motion” and must “state with particularity the grounds for seeking
the order[.]” See Fed. R. Civ. P. 7(b)(1); see also Wright & Miller, 6 FED. PRAC. & PROC. CIV. §
1485 (3d ed.) (“A motion to amend under Rule 15(a), as is true of motions generally, is subject
to the requirements of Rule 7(b), and must set forth with particularity the relief or order
requested and the grounds supporting the application. In order to satisfy these prerequisites a
copy of the amendment should be submitted with the motion so that the court and the adverse
party know the precise nature of the pleading changes being proposed”). Here, Plaintiff has
failed to file a motion seeking to amend his complaint or to attach an amended complaint, or to
otherwise indicate the “exact nature of the amendments proposed.” See Hecker v. Deere & Co.,
556 F.3d 575, 591 (7th Cir. 2009) (affirming district court discretion to deny leave to amend);
see also Gonzalez-Koeneke v. W., 791 F.3d 801, 808-09 (7th Cir. 2015), reh’g denied (Aug. 3,
2015) (“nowhere does she address her proposed amendments or their merits”). Indeed, apart
from arguing that “sore loser” laws are “failing legal scrutiny throughout the nation”—a
proposition for which he offers no legal authority—Plaintiff fails to discuss the purported
invalidity of 10 ILCS 5/7-43. (R.13, Response Br. at 5). Contra S. Carolina Green Party v. S.
Carolina State Election Comm’n, 612 F.3d 752, 757-60 (4th Cir. 2010) (concluding that “South
Carolina had important regulatory interests that justified the modest burden imposed by its
nondiscriminatory application of the sore-loser statute,” and recognizing that such holding
“rendered moot” the plaintiff’s other constitutional challenges); Libertarian Party of Michigan v.
Johnson, 905 F. Supp. 2d 751, 762 (E.D. Mich. 2012), aff’d, 714 F.3d 929 (6th Cir. 2013) (“The
Supreme Court’s decision in Storer . . . goes a long way toward confirming the constitutionality
of the Michigan sore loser statute”).
Accordingly, the Court grants Defendants’ motion to dismiss without prejudice as to
Defendant Scholz. If Plaintiff intends to seek leave of Court to add a claim under 10 ILCS 5/743, he must file a formal motion pursuant to Federal Rule of Civil Procedure 15(a)(2). See
Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (noting that “pro se litigants are
not excused from compliance with procedural rules”). Any such motion must be made by
October 14, 2016. The Court advises Plaintiff, however, that it may “deny leave for a variety of
reasons, including . . . futility. Amendment is futile if the added claim would not survive a
motion to dismiss or a motion for summary judgment.” Kuhn v. United Airlines, Inc., 640 F.
App’x 534, 536–37 (7th Cir. 2016) (citations omitted). The Court therefore advises Plaintiff to
consider the impact of Storer v. Brown, 415 U.S. 724 (1974), among other legal authorities,
before filing his motion for leave to amend.
3

If no such motion is filed by October 14, 2016, this Rule 12(b)(1) dismissal will convert
to one with prejudice, with respect to both Scholz and Does 1-20 inclusive, for failure to
demonstrate standing with respect to Plaintiff’s other constitutional claims. See Storer, 415 U.S.
at 737 (holding that a validly disqualified candidate cannot challenge other provisions of the
election code); Lee, 330 F.3d at 468 (noting that the plaintiff bears the burden of establishing the
required elements of standing).
CONCLUSION
For the stated reasons, the Court grants Defendants’ motion, dismissing the complaint
with prejudice as to the State of Illinois and without prejudice as to Defendant Scholz. The
Court strikes the status hearing scheduled for November 21, 2016.

Dated: October 3, 2016
_________________________________
AMY J. ST. EVE
United States District Court Judge

4