United States District Court, Northern District of Illinois, E.D
April 18, 1984
CURTIS FOSTER, PLAINTIFF,
STANLEY KUSPER, IN HIS CAPACITY AS COUNTY CLERK OF COOK COUNTY, ILLINOIS STATE BOARD OF ELECTIONS, MICHAEL HAMBLET, J. PHIL GILBERT, RICHARD COWENS, THERESA PETRONE, NORMA SHAPIRO, CAROLYN EYRE, JOSHUA LOGAN, JOHN LANIGAN, IN THEIR CAPACITY AS MEMBERS OF THE BOARD, J. ROBERT BARR, IN HIS CAPACITY AS COOK COUNTY CHAIRMAN OF THE REPUBLICAN PARTY AND RONALD MILLER,[FN1] DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
This cause came on to be heard on the motion of plaintiff
Curtis Foster ("Foster") for a preliminary injunction, shortly
before the expiration of the temporary restraining order ("TRO")
issued by this Court April 2, 1984. This Court has considered the
Complaint, the affidavits submitted in support of and in
opposition to the motion and oral evidence offered at the
hearing. Based on the foregoing this Court makes the following
Findings of Fact ("Findings") and Conclusions of Law
("Conclusions") as required by Rule 52(a):
Findings of Fact
1. Stanley Kusper ("Kusper") is the County Clerk of Cook County
and the person required under the Illinois Election Code (the
"Code") to certify candidates who win elections in Cook County.
Illinois' State Board of Elections ("Board") supervises elections
in the State of Illinois and enforces the Code.
2. In the March 20, 1984 primary election three candidates were
on the ballot seeking election as Republican ward committeeman
for the 28th Ward of the City of Chicago (the "Ward
Committeemanship"). Foster was not on the ballot, while defendant
Ronald Miller ("Miller") was.
3. Board's official canvass of the election results of votes
cast for the Ward Committeemanship reflected the following:
(a) Foster received 80 write-in votes, the highest
number of votes received by anyone.
(b) Of the three candidates listed on the ballot,
Miller received 36 votes, Richey A. Prince 22 votes
and Marie Goodlaw 19 votes — a total of 77
4. Kusper certified Ronald Miller as the winner of the election
for the Ward Committeemanship.
5. Foster filed his Complaint in this action April 2, 1984. At
12 noon the same day the Cook County Republican Convention was
scheduled to meet. During that convention each duly elected ward
committeeman was scheduled to be seated as such.
6. At 10:10 a.m. that same day Foster obtained a TRO from this
Court by establishing (a) he had at least a reasonable likelihood
of success on the merits of his constitutional claims, (b) if a
TRO were not granted he would suffer irreparable injury and would
have no adequate remedy at law, (c) defendants would not be
injured by reason of the TRO by being delayed from taking action
until the preliminary injunction hearing and (d) granting the TRO
would not disserve the public interest.
7. Under the TRO:
(a) Defendants were ordered not to certify or to
seat Miller as 28th Ward Republican ward committeeman
until the hearing set by this Court.
(b) Miller was ordered not to act as such ward
committeeman until the hearing.
(c) No security was ordered.
(d) Hearing was set for 9:45 a.m. April 11.
8. On April 11 a full hearing was held on the merits. Attorneys
were present for Foster and for defendants State Board of
Elections and the Chicago Board of Election Commissioners,*fn2 while
Miller appeared pro se. At the hearing testimony was elicited
from witnesses and the official results of the canvass (see
Finding 3) were admitted into evidence.
Conclusions of Law
1. This Court has jurisdiction of the subject matter of this
2. Foster has raised serious and substantial issues of
constitutional law as to both his own and Miller's candidacy,
establishing more than a reasonable likelihood of success on the
merits to require Miller not to be certified and seated, and to
entitle Foster to be certified and seated, for the
Committeemanship. Illinois State Board of Elections v. Socialist
Workers Party, 440 U.S. 173, 184-87, 99 S.Ct. 983, 990-91, 59
L.Ed.2d 230 (1979).
3. As to the prospect of harm to Miller from his not being
certified and seated, to the extent that involves matters of
interpretation and application of the Illinois statutes, Illinois
law provides the rules of decision this Court is required to
follow. Durham v. Barrett, 15 Ill.App.3d 1011, 305 N.E.2d 201
(1st Dist. 1973) held the County Clerk has the duty to certify as
ward committeeman only the person on the ballot who has received
the most votes for that office, and not the person on the ballot
receiving the second highest total where the highest vote-getter
has been disqualified for any reason.
4. Though the statute implicated in Durham is not involved in
this action, the fifth paragraph of Ill.Rev.Stat. ch. 46, ¶ 7-59
clearly has the same meaning as the Durham statute. Accordingly
under Durham Miller cannot in any event be certified or seated
for the Committeemanship, irrespective of the outcome of this
action as to Foster's rights to that office.
5. Foster has established the following prerequisites to
issuance of this preliminary injunction, pending this Court's
decision as to issuance of a preliminary or permanent injunction
as to Foster's own right to the Committeemanship:
(a) There is a substantial likelihood of success on
the merits of Foster's federal constitutional claim
(wholly apart from any rights based on a claim under
law) that Miller is not entitled to be certified and
seated for the Committeemanship.
(b) Without this preliminary injunction, Foster (in
his capacity as a 28th Ward Republican voter) and
other persons who voted for Foster, accounting for a
majority of the votes cast for the Committeemanship,
would suffer irreparable harm to their constitutional
right to freedom of association and their corollary
right to vote. They would have no adequate remedy at
(c) If this preliminary injunction is granted, no
harm will be occasioned to any defendant other than
Miller. As for Miller, the harm to Foster and other
voters referred to in Conclusion 5(b) if this
preliminary injunction is not granted far outweighs
(especially in light of Conclusion 4) any potential
harm to Miller from its being granted.
(d) For the reasons stated in Conclusions 3, 4 and
5(b), granting this preliminary injunction cannot
disserve the public interest.
6. Because of the substantial likelihood of success on the
merits of the federal constitutional claim referred to in
Conclusion 5(a) and the absence of any damages that would be
incurred by Miller or any other party that might be found to have
been unlawfully enjoined or restrained, no security is required
under Rule 65(c) or 65.1.
It is therefore ordered, adjudged and decreed that until
further order of this Court:
1. Defendants shall not certify or seat Ronald Miller as 28th
Ward Republican Ward Committeeman.
2. Ronald Miller shall not act as 28th Ward Republican Ward
Committeeman in any way.
3. This preliminary injunction is granted without bond or other
security being given by plaintiff Curtis Foster, by reason of
this Court's determination in Conclusion 6.
*fn2 See n. 1.