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TOMEI v. FINLEY

March 30, 1981

DAVID TOMEI ET AL., PLAINTIFFS,
v.
MORGAN M. FINLEY ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiffs David Tomei and Dennis Murphy sue Morgan Finley and nine other defendants for declaratory and injunctive relief and damages. Plaintiffs moved for preliminary injunctive relief March 26, 1981 and the Court set an evidentiary hearing March 27. At the time of the hearing defendant John Walsh, the only defendant filing an appearance by counsel and attending the hearing,*fn1 filed a cross-motion for dismissal of the action. For the reasons stated in this memorandum opinion and order, plaintiffs' motion for injunction is granted and Walsh's motion to dismiss is denied.

Facts*fn2

Plaintiff Tomei is the duly elected Republican Committeeman for Lyons Township. That constitutes him the highest elected Republican official, holding a State of Illinois certification of office and having the right to appoint precinct captains, fill vacancies and otherwise direct the affairs of the Lyons Township Regular Republican Organization. Plaintiff Murphy is a Republican registered voter whose wife Deborah is candidate for Township Clerk on the Republican-sponsored township party in the upcoming April 7 election.

Defendant Finley (Clerk of the Circuit Court of Cook County) is Tomei's opposite number in the Lyons Township Regular Democratic Organization. All the defendants other than Finley constitute the entire slate of township candidates of the party organized and sponsored by, and formally affiliated with, the Lyons Township Regular Democratic Organization of which Finley is the Committeeman (Pl. Ex. 7). They are candidates for Township Supervisor, Clerk, Assessor, Collector, Highway Commissioner and Board of Trustees.

Because Illinois law imposes different requirements on established political "parties" than on political "committees," the regular Democratic and Republican parties do not themselves field slates in the quadrennial township elections. Instead a "new" political committee is technically formed each time — reversing the old adage by putting old wine in new bottles. Thus the 1977 Republican-sponsored and -affiliated committee in Lyons Township was dubbed the "Government of the People Party," running under the familiar GOP acronym. This year the technically new (but substantively identical) committee has been named the "Government for the People Party," exercising poetic license by using the identical GOP acronym.

Lyons Township is normally a Republican stronghold, the Republicans commanding the support of a clear majority of the voters. It was only in 1973, when the Democratic-affiliated committee adopted a name that confused the voters, that the Democrats were able to break Republican control of the township offices. Republican control resumed in 1977.

Late in December 1980 Finley and Tomei met for lunch as opposition leaders to discuss the forthcoming election. Both accepted the fact that the race would be difficult and expensive. Finley suggested that to avoid that head-to-head confrontation, the two parties (that is the Democrats and Republicans, for the "committees" that would nominally slate the candidates and conduct the election had not yet been formed) should agree on a coalition slate. Tomei said he would transmit that proposal to the Executive Committee of the Township Regular Republican Organization.

For purposes of this litigation the key part of the two-hour meeting grew out of the brief reference, in the context of the upcoming contest, to the 1973 episode referred to earlier in this opinion. Finley pointed out, in conjunction with his proposal for the coalition to avoid an all-out fight, that the Democrats could adopt as the new committee name the "Representation for Every Person Party." "Think of the REP initials," Finley chuckled. If the coalition were unacceptable, Finley said he had to win the election at any cost and that it would be a "whale of a battle with no holds barred." Tomei agreed on the prospects of battle.

After the meeting Tomei submitted the Finley coalition proposal to the Republican Executive Committee, which rejected it, and advised Finley of the rejection. On February 9, 1981 the Democrats in fact formed the "Representation for Every Person Party." They thus turned into reality what Finley had said "chuckling" in the December meeting.

Since then defendants' principal campaign thrust has been "Vote REP April 7" — that slogan permeates and dominates their literature, signs and buttons. Only a few hundred mailing pieces had been sent out at the time of the hearing, with some 60,000 ready to go. There was evidence at the hearing, principally connected with the obtaining of absentee ballots, of already-manifested voter confusion — of persons who wanted to vote for candidates they knew and whom they knew to be Republicans, or to vote for the entire Republican-supported slate, and who understood (more accurately misunderstood) that by heeding the "Vote REP" message they had seen they would be carrying out their intentions. Both that evidence and the Court's review of the exhibits reflected what the trademark infringement cases term a strong "likelihood of confusion": that Finley's carrying out of what seemed to be a jocularly mentioned possibility is having and, if not restrained, will create the desired voter confusion.*fn3

First Amendment Rights: The Right to Deceive?

Every judge perforce comes to the bench armed (or burdened) with his or her background and perspective. There is no legal concept better calculated to evoke an immediate response from this particular judge than the invocation of the First Amendment and its abhorrence of prior restraints.*fn4 Here defendants invoke both those factors, but they do not inspire the perhaps anticipated Pavlovian response. Plaintiffs too rely principally on First Amendment claims, asserting that their freedom of political association is being violated and interfered with by defendants' activities — that defendants' use of the REP acronym (universally used as "Rep." by the media to identify elected Republican officials) does not promote but rather inhibits the voters' freedom of choice.

Both counsel were asked by the Court to provide authority to deal with the availability or unavailability of injunctive relief here. Perhaps understandably given the extremely short time available to them, neither side was able to assist the Court to any substantial extent. This ...


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