employment practices, but they are not alleged to have played any
part in the discharge of the plaintiffs or the hiring of their
successors. Nor do these local county organizations have any
constitutional or statutory power over the Secretary of State.
The Complaint should be dismissed as to these defendants, for
substantially the same reasons as to the Governor individually
and as a Republican leader.
The Secretary of State has filed a motion for summary judgment
on the grounds that a similar case against him was dismissed by
the United States District Court for the Southern District of
Illinois. Illinois State Employee Union v. Lewis, #4743. In
support of this motion, defendant Lewis has filed the same
affidavit as he did in #4743 to the effect that plaintiffs were
discharged for reasons of efficiency and not for political
reasons. Plaintiffs have filed counter-affidavits in the case at
bar, however, which effectively raise material issues of fact,
and the motion for summary judgment must be denied for this
reason. The defense of res judicata cannot be determined on the
pleadings inasmuch as the plaintiffs are different and the
classes may or may not be different, if and when determined.
Certainly it cannot be said at this stage of the litigation that
the same issues have been litigated between these parties in case
The remaining motions of the remaining defendants are filed
pursuant to F.R.Civ.P. 12(b) on the theory that the Complaint
fails to state a claim upon which relief can be granted. Count I
alleges at least indirectly that plaintiffs were discharged for
their political affiliation (paragraphs 13 & 17). Although
plaintiffs have no civil service standing or tenure, it is clear
such a discharge, if proved, would constitute an interference
with First Amendment rights. Perry, et al. v. Sindermann, etc.,
408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (June 29, 1972). The
plaintiffs might also be able to prove a violation of Fourteenth
Amendment rights, although this has not been well pleaded. The
fact that plaintiffs may have been discharged in order to provide
jobs for Republican political workers is not the gravamen of this
Count, but might constitute evidence of the reason for discharge.
Therefore Count I states a cause of action under
42 U.S.C. § 1983.
Count II purports to be based on written contracts with the
late Paul Powell effective January 13, 1969 for four years. No
copy of any contract is attached, but it is apparently alleged to
be a contract with the former Secretary of State. This count adds
no constitutional dimension to the allegations of Count I. What
remains of Count II is basically a suit for money damages against
the former Secretary of State or an arm of the State of Illinois,
which cannot be maintained in this court. Hans v. Louisiana,
supra and Monroe v. Pape, supra.
Count III alleges the substantive portions of Count I, but
plaintiffs sue as qualified voters. Although some of the
constitutional allegations of Count I are lacking in Count III,
it does contain the added elements of standing as voters and
nonemployees. If properly proved, with the necessary
constitutional allegations, Count III could stand alone as a
substantive violation of rights and therefore should not be
Count IV apparently intends to state a taxpayers' complaint but
is garbled. We have no doubt that taxpayers can sue for improper
use of public funds, including their use to aid a political
organization. However, it is doubtful that suits by former state
employees, voters and taxpayers can be joined together in one
class action. At least until a proper amendment is filed, Count
IV will be dismissed.
Count V is likewise unintelligible. Apparently plaintiffs
intend it to be a catch-all combination of all of the other four
Counts into one. Since it therefore becomes redundant and also
subject to the deficiencies of Counts II and IV, it will be
It is therefore ordered, adjudged and decreed that the
Complaint be and it is dismissed as to the defendants State of
Illinois, Richard B. Ogilvie individually and as Governor of the
State of Illinois, the Republican Organization of Cook County,
Illinois, Republican County Central Committee and Edmund J.
Kucharski as president and chairman of the latter two
It is further ordered, adjudged and decreed that Counts II, IV
and V be and they are dismissed on the Motions of the remaining
defendants for failure to state a claim upon which relief can be
It is further ordered, adjudged and decreed that the Motions of
John W. Lewis individually and as Secretary of State for the
State of Illinois and Edmund J. Kucharski individually and as
Under Secretary of State for the State of Illinois to dismiss
Counts I and III of the Complaint are denied, and they are
ordered to file answers thereto within 20 days.
This case will be called for a report on status on July 26,
1972 at 10 a.m. without further notice.
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