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SMITH v. BD. OF ELECTION COM'RS FOR CITY OF CHICAGO

United States District Court, Northern District of Illinois, E.D


March 19, 1984

ED H. SMITH, MICHAEL REMBERT, DANNY K. DAVIS, HERBERT PAYNE, ALLAN STREETER, JULIUS HAMMOND, DOROTHY TILLMAN, LOVIE COPELAND, GEORGE H. EDDINGS AND JOHN DAVIS, PLAINTIFFS,
v.
THE BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO AND MICHAEL E. LAVELLE, JAMES R. NOLAN AND CORNEAL A. DAVIS, IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO, DEFENDANTS. EDWARD W. GJERTSEN, STUART SCHULMAN, JOSEPH W. SMITH, KENNETH A. LAVAND, HERMAN A. SCHELL, JR., PATRICIA A. HANS, WILLIAM T. MARGALUS AND DOMINIC COSTANZO, PLAINTIFFS, V. THE BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO AND MICHAEL E. LAVELLE, JAMES R. NOLAN AND CORNEAL A. DAVIS, IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO, MEMBERS OF THE STATE BOARD OF ELECTIONS, RICHARD A. COWEN, CAROLYN R. EYRE, J. PHIL GILBERT, MICHAEL J. HAMBLET, JOSHUA JOHNSON, JOHN J. LANIGAN, THERESA M. PETRONE AND NORMA J. SHAPIRO, IN THEIR CAPACITIES AS MEMBERS OF THE STATE BOARD OF ELECTIONS, AND STANLEY T. KUSPER, JR., IN HIS CAPACITY AS COUNTY CLERK OF COOK COUNTY, ILLINOIS, DEFENDANTS.

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

MEMORANDUM OPINION AND ORDER

This Court granted plaintiffs' motion for a preliminary injunction in No. 84 C 0148, and granted in part and denied in part plaintiffs' motion for a preliminary injunction in No. 84 C 0560 on March 8, 1984. We held unconstitutional Ill.Rev.Stat. ch. 46, § 7-10(i), which imposes a signature requirement upon Ward Committeeman candidates. Under the statute, such candidates must present signatures of ten percent of the primary electors of their party of their wards. We ordered defendants to certify for placement on the ballot, and to place on the ballot, those plaintiff candidates whose nomination petitions contained signatures in excess of five percent of the primary electors of their party of their wards. Our order was limited to certain of the named plaintiffs. Defendants have indicated that they will comply with this ruling and will not seek to overturn this ruling through an emergency appeal prior to the March 20, 1983 election. While we held Ill.Rev.Stat. ch. 46, § 7-10(i) unconstitutional, we did not permanently enjoin its application. The relief granted was of a preliminary nature and did not constitute final judgment on the merits.*fn1

Presently before the Court are several motions to intervene.*fn2 The would be intervenors assert that they have submitted nomination petitions with signatures in excess of five percent of the primary electors of their party of their wards. In addition to seeking leave to intervene, all seek additional preliminary injunctive relief, namely, to have their names placed on the ballot for the March 20, 1984 election. For reasons set forth below, the would be intervenors' motions to intervene are granted, but their requests for additional preliminary injunctive relief are denied. Accordingly, defendants are not required to place the intervenors' names on the ballot in the March 20, 1984 election. In granting the motions to intervene, this Court is simply allowing the intervenors to participate in the next stage of these lawsuits. We decline, however, to extend at this time the preliminary injunctive relief previously afforded to some of the named plaintiffs to the intervenors.

Fed.R.Civ.P. 24 provides, in relevant part, that

    (a) Intervention of Right. Upon timely
  application anyone shall be permitted to
  intervene in an action: (1) when a statute of the
  United States confers an unconditional right to
  intervene; or (2) when the applicant claims an
  interest relating to the property or transaction
  which is the subject of the action and he is so
  situated that the disposition of the action may
  as a practical matter impair or impede his
  ability to protect that interest, unless the
  applicant's interest is adequately represented by
  existing parties.

    (b) Permissive Intervention. Upon timely
  application anyone may be permitted to intervene
  in an action: (1) when a statute of the United
  States confers a conditional right to intervene;
  or (2) when an applicant's claim or defense and
  the main action have a question of law or fact in
  common. When a party to an action relies for
  ground of claim or defense upon any statute or
  executive order administered by a federal or
  state governmental officer or agency or upon any
  regulation, order, requirement or agreement
  issued or made pursuant to the statute or
  executive order, the officer or agency upon
  timely application may be permitted to intervene
  in the action. In exercising its discretion the
  court shall consider whether the intervention
  will unduly delay or prejudice the adjudication
  of the rights of the original parties.

Whether intervention is claimed as a matter of right or permissively, it must be timely. Timeliness involves examining all of the circumstances of a case and is to be determined by the court in the exercise of its discretion. NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973). The factors to be considered include: the length of time the intervenor knew or should have known of its interest in the case; the prejudice to the original litigating parties from the intervenor's delay; the extent of prejudice to the would be intervenor if its motion is denied; and any unusual circumstances. United States v. Kemper Money Market Fund, Inc., 704 F.2d 389, 391 (7th Cir. 1983).

The would be intervenors have not known, nor should they have known, of their interest in this case for an inordinate length of time, for these cases were filed within the last two months. Insofar as the would be intervenors plan to enter future Ward Committeeman races and seek ballot access, they have an interest in participating in these lawsuits, and denial of their petitions might prejudice them. Allowing the would be intervenors to enter the case will not prejudice the original parties, and no unusual circumstances support denial of these motions.

But the would be intervenors clearly seek more than access to these lawsuits — they wish to appear on the ballot for the March 20, 1984 election. We decline to order such relief. At this late date, such an order would in all likelihood require postponement of the election entirely. Postponement in itself, at this point in time, presents an almost impossible administrative burden. Unlike the situation of the named plaintiffs who were afforded relief, the timing of the intervenors' belated request to join in such relief would require no alternative but to postpone the election should relief be afforded them at this late stage. Placing the names of intervenors on the ballot or postponing the election on the eve of the election cannot be justified in light of the harm it would cause both defendants and the public. In NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973), one basis for the Court's conclusion that motion to intervene was untimely was the fact that a primary election was close at hand, and granting the motion to intervene might have seriously disrupted the election process. Id. at 369, 93 S.Ct. at 2604. The intervenors have not demonstrated entitlement to preliminary injunctive relief, since the harm they face, while admittedly great, is outweighed by the harm an injunction adding their names to the ballot would cause defendants. Disruption of the March 20, 1984 election at this late date, moreover, would disserve the public interest. Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1123 (7th Cir. 1983). While intervention as to the subsequent portions of the instant case is timely, we deny preliminary injunctive relief to the plaintiff intervenors.

Accordingly, the motions to intervene are granted, but the intervenors' attempts to obtain additional preliminary injunctive relief are denied. It is so ordered.


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