United States District Court, Northern District of Illinois, E.D
November 6, 1969
MICHAEL L. SHAKMAN AND PAUL M. LURIE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
THE DEMOCRATIC ORGANIZATION OF COOK COUNTY, A CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Marovitz, District Judge.
Plaintiffs' Preliminary Motions
Defendants' Motion to Dismiss
This is a class action which alleges deprivations of freedoms
of speech and association as well as due process and equal
protection of the law in violation of the First, Fifth and
Fourteenth Amendments to the United States Constitution and of
certain civil rights statutes, 42 U.S.C. § 1983, 1985, 1986,
1988, arising from an alleged political patronage system.
Plaintiff Shakman is an independent (not endorsed by any
political party) candidate for Delegate to the Illinois
Constitutional Convention. Plaintiff Lurie is one of his
supporters. Defendants are Democratic party organizations and
various officials of those organizations, the City of Chicago,
and various officials of the City and of Cook County, Illinois.
In this six count complaint, Counts I and IV are brought by
Shakman as a candidate for public office, Counts II and V are
brought by both plaintiffs as voters, and Counts III and VI are
brought by both plaintiffs as taxpayers. Counts IV, V, and VI
differ from Counts I, II, and III respectively in alleging
conspiracy to commit the acts complained of in the lower
numbered counts. The various counts are also brought on behalf
of all others similarly situated. Plaintiffs seek declaratory
and injunctive relief plus compensatory and exemplary damages.
All defendants have filed multifaceted motions to dismiss
this complaint. Some of the reasons set forth by defendants are
without merit. Plaintiffs
have not inexcusably delayed instituting this action and are
not barred by laches. Loverich v. Warner Co., 118 F.2d 690, 693
(3d Cir. 1941). Similarly, the complaint cannot be dismissed
because the motion for preliminary injunction was not
accompanied by a bond. Under the federal rules, security is not
required unless and until the equitable relief is to be
granted. Rule 65(c), F.R.Civ.P.; 7 Moore's Federal Practice Ch.
65, ¶ 65.09, at 1656 (1968).
A considerably more serious issue is raised by defendants
when they suggest that the subject matter of this action
involves a political question which, therefore, renders the
lawsuit non-justiciable. The non-justiciability of political
questions is a doctrine which extends back to Marbury v.
Madison, 1 Cranch (5 U.S.) 137, 164-166 (1803). Further, there
can be no doubt that this complaint involves political matters.
Plaintiffs have alleged that defendants control and exert
coercion over patronage employees, who are defined as those
persons employed by Chicago and Cook County governmental
entities, hired on the basis of political support and not
protected by civil service or otherwise against arbitrary
discharge from employment. The complaint further alleges that
these employees are required to take time off from their jobs
in order to perform political work, for which they are paid
with public funds. As a result of this alleged misuse of public
funds and personnel, the rights of the Democratic patronage
employees are allegedly infringed in that they may not
associate with plaintiff candidate, speak on his behalf, vote
freely, or refuse to support defendant political organizations.
Further alleged unlawful results of the patronage system are
that plaintiff candidate is deprived of the right to associate
with these employees, that plaintiff cannot express himself
through patronage employees, that plaintiff's supporters cannot
have their votes cast effectively, that the votes of plaintiff
and his supporters are debased, that the election in which
plaintiff is running will not be determined by votes freely
cast, that plaintiff is forced to support political
organizations, policies, programs, and candidates to which he
is opposed, and that the electoral process is not rudimentarily
fair or free of substantial political interference. Complaint,
That these allegations are obviously politically oriented
does not automatically resolve the motion to dismiss for if the
political question doctrine is of long duration, it is also of
increasingly limited scope. In recent years, the doctrine has
been considerably narrowed. Thus the judiciary has considered
politically tainted issues of reapportionment, e.g., Reynolds
v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964),
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962), petitioning for a place on a ballot, e.g., Moore v.
Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969),
Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24
(1969), ballot position, e.g., Weisberg v. Powell, 417 F.2d 388
(7th Cir. 1969), and discrimination in party primaries, e.g.,
Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152
(1953), Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88
L.Ed. 987 (1944). At the same time, courts have maintained a
reluctance to interfere with the strictly internal operations
of a political party. Irish v. Democratic-Farmer-Labor Party of
Minnesota, 399 F.2d 119, 120 (8th Cir. 1968); Lynch v.
Torquato, 343 F.2d 370 (3d Cir. 1965).
A determination as to the justiciability of the political
issues in this case in the light of the standards set forth in
Baker v. Carr, 369 U.S. 186, 209, 217, 226, 82 S.Ct. 691, 7
L.Ed.2d 663 (1962), need not be made, however, because
plaintiffs lack the requisite standing to litigate this
controversy. Assuming for the moment that plaintiff's complaint
is well pleaded, which assumption is questionable in view of
the vague conclusory allegations, and further accepting for the
purposes of this motion similar allegations that thousands of
patronage employees are being coerced into making involuntary
contributions of time
and money and that they are being deprived of their right to
associate with, work for, contribute money to and vote for
plaintiff candidate, (Complaint, ¶ 39) the proper parties to
assert that those deprivations amount to unlawful violations of
their civil rights are the patronage employees, not plaintiff.
Cf. Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 87 L.Ed.
603 (1943). Plaintiff has asserted that "these employees are
not free to assert themselves since they believe that to do so
will lead to the loss of their patronage jobs or other
punishment in said jobs." Complaint, ¶ 39. Nevertheless, the
issues presented are of such a serious nature and have a
potential impact across the country in local, state, and
national affairs, that we cannot allow self-appointed
representatives of other persons federal rights, no matter how
decent their intentions, to attempt to remedy the alleged
wrongdoing. If the patronage system does concern upwards of
30,000 persons (Complaint, ¶ 27), has existed for "many years,"
(Id.) and is as coercive and obnoxious as is claimed, there
should be some patronage employees willing and able to assert
their rights for themselves and their class. Any other rule
would risk improper representation and prosecution of the
claims of these employees to say nothing of creating raising
questions concerning the binding nature of a decision affecting
persons not before the court. The rule prohibiting reliance on
another's constitutional rights is admittedly a rule of
self-restraint which may be disregarded in unique situations
where, for instance, the action of a state court might result
in a denial of constitutional rights to the absent party,
Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed.
1586 (1953). In the instant case, we know of no similar
impediment to the attempted enforcement of an aggrieved party's
Of course, unlike the Tileston case, plaintiffs have alleged
deprivations of their own rights. Compare, Tileston v. Ullman,
318 U.S. 44, 46, 63 S.Ct. 493, 87 L.Ed. 603 (1943). Yet, these
asserted rights are not infringed directly, but derivatively,
i.e., because rights of the patronage employees are allegedly
infringed. Thus, Candidate Shakman alleges he is deprived of
his freedom of speech and association because certain patronage
employees are unlawfully deterred from associating with or
speaking or working for him. Recognizing that standing "has
been, and remains, one of the most enigmatic areas of the law,"
Investment Company Institute v. Camp, 274 F. Supp. 624, 632
(D.D.C. 1967), we think that plaintiff is the wrong party to
complain about alleged wrongs incurred by patronage workers.
Leaving aside the issue of standing to litigate, plaintiffs'
complaint is subject to dismissal because it is conclusory. For
purpose of testing the sufficiency of a complaint under Rule 12
(b)(6), "the well pleaded material allegations of the complaint
are taken as admitted; but conclusions of law or unwarranted
deductions of fact are not admitted." 2A Moore's Federal
Practice Ch. 12, ¶ 12.08 at 2266-2269 (1968). In the complaint,
plaintiff contends that he is deprived of the "right to
associate" with certain patronage employees, yet he has never
alleged that he attempted to associate with any such employee
and was spurned. Similarly, plaintiff contends that he is
deprived of the "right to express and espouse" his candidacy
through patronage employees. Even assuming the First Amendment
guarantees the right to speak through other persons' mouths,
there has been no allegation that plaintiff has attempted to
engage patronage employees to speak for him. Plaintiff's
allegation that he is being deprived of the "right to cast his
vote effectively and to have the election determined on the
basis of votes so cast" is another unwarranted deduction.
Plaintiff has not alleged that he or any of his supporters who
are qualified to vote have been or are being denied access to
the polls. Nor has plaintiff alleged that the tally of votes
cast in Constitutional Convention elections is not an accurate
count of the votes made by qualified voters.
In a like fashion, plaintiff has also alleged that votes of
himself and his supporters are "dilute(d) and debase(d)." This
conclusion is unwarranted for a number of reasons: there has
been no allegation that patronage employees in plaintiff's
district are not entitled to vote, there is no way of precisely
knowing which voter votes for which candidate, and plaintiff
candidate in fact received enough votes to qualify as a
candidate for the office he seeks. Similarly, the conclusion is
unwarranted that votes cast in the two Constitutional
Convention elections are not "freely cast." Again, no one can
say for sure which voter voted for which candidate. See
generally, Complaint, ¶ 38.
In addition, plaintiff has alleged that he and his supporters
have been deprived of a fair electoral process free of
"substantial partisan interference." Neither the federal
constitution nor any civil rights law prohibits legitimate
activity including canvassing, poster hanging and poll watching
(Complaint, ¶ 38) by partisan political personnel in an
election. The patronage employees about whom plaintiff is so
concerned have as much right to support the candidate of their
choice as do plaintiff's supporters. No doubt plaintiff will
respond in agreement, but contend that the employees are
coerced. If so, then as stated earlier, it is not for plaintiff
to assert the rights of others, rather it is the patronage
employees' right to bring an action on their own behalf.
Plaintiff has further contended that he is "force(d) * * * to
support and contribute" to a political organization to which he
is opposed. In all of plaintiff's lengthy complaint, we can
find no factual allegations regarding coercion as to him. The
funds allegedly used by plaintiff's opponents are allegedly
derived from coerced contributions from patronage employees.
Complaint, ¶¶ 29, 30, 35. As plaintiff has not alleged himself
to be one of these coerced contributors of time and money, the
conclusion that he is forced to support policies and personnel
undesirable to him is simply not justified. To the extent
plaintiff complains that taxpaying is a compelled involuntary
contribution to defendants and their policies, the complaint
fails to state a cause of action. Payment of taxes cannot be
refused because of disagreement with governmental policies,
whether they include school busing, law enforcement or anything
else. The mere fact that some individual defendants are not
only government officials, but also political leaders does not
alter the propriety of paying properly assessed taxes.
Finally, plaintiff also alleges that the acts of the
defendants constitute "gross and invidious discrimination"
against plaintiff as a candidate and voter. However, the
relationship between the acts alleged and the result alleged is
not apparent. Plaintiff is not entitled to the support of any
or all political parties or their supporters. To allege that
they deny him aid or oppose him may indicate a lot of things,
but one of them is not unlawful discrimination.
In conclusion, viewed charitably, the complaint makes several
serious charges regarding the direct deprivation of rights of
a class of persons characterized as Democratic patronage
employees. Whether or not the complaint can be said to state a
cause of action on their behalf need not be considered
presently, because those employees are not before this court.
Further, given the gravity of the charges and the absence of
any allegation that plaintiff fairly represents the class of
allegedly aggrieved employees, we find that plaintiff does not
have standing to assert the alleged violations of the rights of
said employees as set forth in the Complaint, ¶ 39.
Nor do we think the complaint can be saved because plaintiff
has alleged that the harm done to the patronage employees also
harms him. The violations charged in the Complaint, ¶ 38 are
too conclusory to support a cause of action upon which relief
may be granted. Plaintiff has simply not alleged facts
sufficient to warrant the deductions and
charges of alleged deprivation of rights as to him and his
Plaintiffs' motion for injunctive relief is denied.
Defendants' motion to dismiss is granted.
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