United States District Court, Northern District of Illinois, E. D
June 30, 1981
DAVID TOMEL, ET AL., PLAINTIFFS,
MORGAN FINLEY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
This action stems from a political dispute between the
Republican-affiliated party*fn1 and the Democratic-affiliated party*fn2
in the Lyons Township elections held April 7, 1981. This Court has
already dealt with various of the issues in opinions dated March 30,
April 3 and April 6, 1981, which state the facts of the case in some
detail. 512 F. Supp. 695. Now defendants move to dismiss for lack of
subject matter jurisdiction, asserting the absence of action "under
color" of state law.*fn3 For the reasons stated in this memo randum
opinion and order defendants' motion is denied.
As for Section 1983, the gravamen of the Complaint is defendants'
attempted frustration of the electoral process by the deliberate
deception of Republican voters. Beginning with the "white primary cases,"
Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) and
its progeny, it has been established that private conduct that is an
integral part of that electoral process meets the need for "state action"
as a predicate for federal jurisdiction. However, none of the Supreme
Court decisions in this area of law provides more than dicta from which
each side tries to draw solace. For example, both plaintiffs and
defendants seek to invoke Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
158, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978):
One such area has been elections. While the
Constitution protects private rights of association
and advocacy with regard to the election of public
officials, our cases make it clear that the conduct of
the elections themselves is an exclusively public
function. This principle was established by a series
of cases challenging the exclusion of blacks from
participation in primary elections in Texas. 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); Nixon v. Condon, 286 U.S. 73
[52 S.Ct. 202, 76 L.Ed. 984] (1932). Although the
rationale of these cases may be subject to some
dispute, their scope is carefully defined. The
doctrine does not reach to all forms of private
political activity, but encompasses only
state-regulated elections or elections conducted by
organizations which in practice produce
"the uncontested choice of public officials." Terry,
supra, [345 U.S.] at 484 [73 S.Ct. at 820] (Clark,
J., concurring). As Mr. Justice Black described the
situation in Terry, supra, at 469 [73 S.Ct. at 813]:
"The only election that has counted in this Texas
county for more than fifty years has been that held by
the Jaybirds from which Negroes were excluded."
Though the issue is certainly not free from doubt in a case where, as
here, neither party's nomination is the functional equivalent of
election, some language in the Fifth Circuit's opinion in Riddell v.
National Democratic Party, 508 F.2d 770
, 774-75 (5th Cir. 1975) tends to
support jurisdiction in this case, as the quoted language from Flagg
But this Court need not rely on the arcane mysteries that sometimes
attend decisions as to what conduct of persons other than public
officials is nonetheless "under color" of state law. See, e. g., Jenkins
v. White Castle Systems, Inc., 510 F. Supp. 981 (N.D.Ill. 1981). Section
1985 confers federal court jurisdiction over private conspiracies where
the defendants are allegedly infringing plaintiffs' rights to equal
protection or equal privileges and immunities under the laws. Griffin v.
Breckinridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338
(1971). Both the First Amendment freedom of political association and the
voting franchise must be viewed as among the most valuable "privileges
and immunities" in our democratic system. And the Griffin v.
Breckinridge requirement that the private conspiratorial discrimination
involve a "class-based animus" must be held satisfied by an alleged
effort to disenfranchise Republican voters. Though the particular conduct
charged was of course different, the language in Cameron v. Brock,
473 F.2d 608, 610 (6th Cir. 1973) might well have been written for this
We hold that § 1985(3)'s protection reaches
clearly defined glasses, such as supporters of a
political candidate. If a plaintiff can show that he
was denied the protection of the law because of the
class of which he was a member, he has an actionable
claim under 1985(3). This interpretation does not
transform the statute into the "general federal tort
law" feared by the Griffin Court and gives full effect
to the congressional purpose in enacting to statute.
Defendants' arguments cannot be dismissed lightly. On analysis,
however, this is not the kind of general tort law claim that the Supreme
Court refused to encompass within the coverage of Section 1985(3) in
Great American Savings & Loan Ass'n v. Novotny, 442 U.S. 366
, 378, 99
S.Ct. 2345, 2352, 60 L.Ed.2d 957 (1979).
With plaintiffs' action thus withstanding defendants' motion to
dismiss, the parties will be expected to proceed actively with necessary
discovery. This case is set for a status report August 11, 1981 at 9 a.m.