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July 28, 1972


The opinion of the court was delivered by: Marovitz, District Judge.


Motions to Strike and Dismiss


This is yet another complicated phase in the continuing litigation arising from a suit instituted in 1969 by Michael Shakman, an independent candidate for the Illinois Constitutional Convention and Paul Lurie an independent voter who brought a class action for all independent candidates, independent voters and taxpayers. The defendants in the original complaint were various Cook County Democratic party officials and organizations including the Mayor of the City of Chicago.

We do not wish to unnecessarily elaborate on the seventy-page complaint at this point in view of the fact that both the factual and theoretical underpinnings of this case have already been more than adequately set out in both our first opinion in this case at 310 F. Supp. 1398 (N.D.Ill. 1969) and in the Court of Appeals opinion at 435 F.2d 267 (7th Cir. 1970). We will simply outline a skeletal version of the allegations and a brief chronology of what has transpired in this case since 1969 in order that the motions we are now being asked to rule upon will be placed in their proper perspective.

Plaintiffs alleged that their constitutional rights as a candidate, taxpayers and voters were violated by the defendants' practice of coercing "patronage" employees as a condition of keeping their jobs to contribute money to the various Democratic organizations and candidates; to do political and campaign work both during their regular working hours and on their own time for candidates endorsed by the organization and its affiliates; and to vote for party candidates. Plaintiffs asserted that these coercive practices directly result in the defeat of independent candidates and perpetuates the dominance of the Democratic party in Cook County by enabling the defendants to coercively muster a massive army of political workers who are essentially paid with public money and whose discipline is maintained by the constant threat of job loss. It is this tactic, plaintiffs alleged which dilutes the votes of those seeking to elect non-organization candidates and which creates insurmountable odds for independent candidates in view of the fact that such candidates cannot match either the funds or campaign man hours derived from patronage employees.

All defendants filed multifaceted motions to dismiss the complaint which this Court granted in Shakman v. Democratic Organization of Cook County, 310 F. Supp. 1398 (N.D.Ill. 1969) primarily on the grounds that the plaintiffs' constitutional rights were not infringed directly but rather derivatively by coercion of patronage employees and that plaintiffs therefore lacked standing and that furthermore the complaint was conclusory.

The Court of Appeals for the Seventh Circuit in Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (1970) reversed our decision holding that plaintiffs did have standing, that the complaint was not fatally conclusory and that certain constitutional rights were violated if the defendants' alleged practices were true.

Shortly before the decision was handed down by the Court of Appeals, plaintiffs filed an amended complaint joining additional Democratic defendants and numerous Republican defendants. After much negotiation a consent order entered into by forty-two Democratic and Republican defendants was approved by this Court on May 5, 1972, the order declaring that:

    D. . . . compulsory or coerced political financial
  contributions by any governmental employee,
  contractor or supplier, to any individual or
  organization and all compulsory or coerced political
  activity by any governmental employee are prohibited,
  and, once hired, a governmental employee is free from
  all compulsory political requirements in connection
  with his employment. However, governmental employees
  may engage on a voluntary basis, on their own time,
  in any lawful political activity (including the
  making of political financial contributions).
    E. Each and all of the defendants and others named
  or referred to in paragraph C above are permanently
  enjoined from directly or indirectly, in whole or in
    (1) conditioning, basing or knowingly prejudicing
  or affecting any term or aspect of governmental
  employment, with respect to one who is at the time
  already a governmental employee, upon or because of
  any political reason or factor.
    (2) knowingly causing or permitting any employee to
  do any partisan political work during the regular
  working hours of his or her governmental employment,
  or during time paid for by public funds; provided
  that nothing contained in this subparagraph (2) shall
  prohibit governmental

  employees from voluntarily using vacation time,
  personal leave time or from taking nonpaid leaves of
  absence to do political work, but permission to do so
  must be granted nondiscriminatorily.
    (3) knowingly inducing, aiding, abetting,
  participating in, cooperating with or encouraging the
  commission of any act which is proscribed by this
  paragraph E, or threatening to commit any such act.

We have before us now numerous motions to dismiss filed by various defendants who declined to enter into the consent order. All of those defendants challenge the substantive merit of plaintiffs allegations while others challenge both the substance of as well as the procedural propriety of the complaint. What must be clearly understood is that any procedural or substantive ground must be decided not sui generis but within the framework of both the explicit and implicit meaning of the 7th Circuit's opinion in this case and taking into consideration that a great deal of the matter raised in the current motions are merely reiterations of arguments raised in the original motions to dismiss which the Court of Appeals indicated ought not be granted. We therefore have two basic groups of motions; 1) those by defendants whose procedural and substantive posture is identical with those defendants in the original complaint given their Cook County locus, i.e. Hanrahan, Elrod, Korzen and the Park District and whose disposition is explicitly determined by the Court of Appeals mandate despite the fact that they were joined after the Court of Appeals decision and 2) those defendants whose procedural posture is somewhat different from all other defendants given the fact that their scope of operation is outside of Cook County and whose procedural assertions were not explicitly dealt with either by this Court or by the Court of Appeals since those defendants were joined after the Appeals Court considered the ...

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