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JOHN W. MOORE PARTY v. ELECTION COMMISSIONERS

November 28, 1984

CITIZENS FOR JOHN W. MOORE PARTY, JOHN W. MOORE AND WILLIE ANDERSON, PLAINTIFFS,
v.
BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William T. Hart District Judge.

                        MEMORANDUM OPINION, FINDINGS
                        OF FACT, CONCLUSIONS OF LAW
                                 AND ORDER

This is a civil rights action for declaratory and injunctive relief, brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1651, 2201-2202. Plaintiffs challenge the constitutionality of the actions, or August 24, 1982, of the defendant Board of Election Commissioners of the City of Chicago (the "Board") and its members in holding insufficient the nominating petitions of plaintiff John W. Moore Party and plaintiff candidate John W. Moors. Plaintiffs further challenge the constitutionality of § 10-4 of the Illinois Election Code. Ill.Rev.Stat. 1981, ch. 46, § 10-4.*fn1 Based on that provision, the Board invalidated some of plaintiffs' new political party nominating petitions for the office of Representative in the Illinois General Assembly at the November 2, 1982 general election, as they were circulated by a person who previously circulated established political party nominating petitions for the office of Illinois State Senator at the March 16, 1982 primary election.

[1] This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1343 (a)(3) and 1343(a)(4) in that plaintiffs seek to redress the deprivation, under color of state law, of rights secured to them by the Constitution of the United States, including the First and Fourteenth Amendments. The fact that the election has passed does not moot the issues presented in the complaint. Declaratory relief may still be granted. Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1283, n. 8, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756, n. 5, 93 S.Ct. 1245, 1249, n. 5, 36 L.Ed.2d 1 (1973).

Plaintiffs filed this action on September 24, 1982. On October 2, 1982 plaintiffs appeared before the Court in support of their motion for a temporary restraining order and preliminary injunction declaring unconstitutional § 10-4 of the Illinois Election Code and requiring defendants to validate nominating petitions for plaintiff Moore as a candidate for the office of representative in the General Assembly and to cause his name to be printed on the November 2, 1982 ballot. After considering the motion and materials filed by the parties and hearing oral argument, the Court concluded that plaintiffs had failed to seek equitable relief in a timely fashion in the context of an election case and had failed to show a reasonable likelihood of success on the merits. Accordingly, injunctive relief was denied.

William Anderson joined this action individually as a plaintiff and on behalf of all others similarly situated who desired to vote for plaintiff Moore. However, no motion to certify a class was made and this action proceeded to trial as an individual action.

Plaintiffs waived their claims against Stanley Kusper and Taylor Pouncey and their motion to dismiss the action as to them is hereby granted.

FINDINGS OF FACT

On September 4, 1984 the pretrial order was approved. The pretrial order included a stipulation of uncontested facts which the Court adopts as findings of fact as follows:

1. Plaintiff Citizens for John W. Moore Party ("Moore Party") is an unincorporated association with its principal office in Chicago, Illinois.

2. The Moore Party sought to form a new political party in the Thirty-First Representative District and to nominate John W. Moore ("Moore"), its party chairman, as its candidate for Representative in the Illinois General Assembly for the Thirty-First Representative District in the November 2, 1982 General Election.

3. Plaintiff Moore is a United States citizen over twenty-one years of age who resided in the Thirty-First Representative District for over two years by the time of the November 2, 1982 General Election.

4. Plaintiff Moore sought to run as a candidate of the Moore Party for the office of Representative in the General Assembly for the Thirty-First Representative District in the November 2, 1982 General Election.

5. Plaintiff Willie Anderson ("Anderson") is a United States citizen over eighteen years of age who is registered to vote in the Thirty-First Representative District.

6. Plaintiff Anderson desired to vote for Moore, the candidate of the Moore Party, for the office of Representative in the Illinois General Assembly for the Thirty-First Representative District in the November 2, 1982 General Election.

7. Defendants Michael E. Lavelle ("Lavelle"); James R. Nolan ("Nolan") and Corneal A. Davis ("Davis") are members of and comprise the Board of Election Commissioners for the City of Chicago ("Chicago Board"). Defendant Lavelle is chairman of said Chicago Board. Said defendants were responsible under the Illinois Election Code (Ill.Rev.Stat. 1981, ch. 46, § 1-1 et seq.) for determining the validity of nominating petitions of new political parties and of persons seeking to become candidates for election to the office of Representative in the General Assembly for the Thirty-First Representative District for the November 2, 1982 General Election and for printing the names of all candidates running for office in the November 2, 1982 General Election from a territory either partially or wholly within the City of Chicago. In addition, said defendants conducted and declared the results of said election.

8. Defendants J. Phil Gilbert; Michael J. Hamblet; John W. Countryman; Richard A. Cowen; Carolyn R. Eyre; Joshua Johnson; John L. Lanigain and Teresa M. Petrone are members of and comprise the Illinois State Board of Elections. The Illinois State Board of Elections was required by law to certify to the County Clerk, the names of the candidates for election with respect to the general election held in November of 1982. Because the Board of Election Commissioners for the City of Chicago determined that the plaintiff Citizens for John W. Moore Party and its candidate John W. Moore did not have sufficient signatures on its petition to qualify for the 1982 election for State Representative for the Thirty-First Representative District, the Illinois State Board of Elections did not so certify the candidacy of John W. Moore for the office of Representative in the General Assembly.

9. Taylor Pouncey ("Pouncey") is the person who objected to the validity of plaintiffs' nominating petitions and thus initiated the proceedings before the defendant Board and the enforcement of the statute against which plaintiffs herein complain. Pouncey was the nominee of the Democratic Party for election to the office that Moore sought.

10. Plaintiffs Moore Party and Moore timely filed nominating petitions purporting to contain 3,829 valid signatures.

11. Pouncey timely filed objections to said nominating petitions. Among the deficiencies in the nonminating petitions alleged by Pouncey was the following:

   John W. Moore circulated Petitions for Nomination for
   the Democratic Party in December, 1981. for
   candidates to be elected at the November 2, 1982
   general election arid circulated sheets of the
   Petition to form Citizens for John W. Moore in
   violation of Section 10-4, the Illinois election
   Code. More particularly, John W. Moore circulated
   sheets numbered (numbers specified) in the Petition
   improperly and the 975 signatures on those Petition
   Sheets are invalid because of an improper
   circulator.

12. At the hearing before the defendant Chicago Board, plaintiffs Moore Party and Moore, inter alia, moved to strike the objections to the petition sheets circulated by plaintiff Moore on numerous factual and constitutional grounds.

13. At the hearing before the defendant Chicago Board, uncontroverted evidence was introduced that plaintiff Moore had circulated petitions seeking the Democratic Party nomination of himself for the office of State Senator for the Sixteenth Legislative District at the March 16, 1982 Primary Election. Further uncontroverted evidence was introduced that, in or around April of 1982, plaintiff Moore circulated new political party petition sheets seeking to place the Citizens for John W. Moore Party on the November 2, 1982 general election ballot for the office of representative in the General Assembly for the Thirty-First Representative District. Plaintiff John W. Moore was said party's candidate for Representative.

14. Defendant Chicago Board denied plaintiffs' motions to strike the objections to the petitions circulated by Moore and, on August 24, 1982, issued a written opinion finding that the Moore party's nominating petition was invalid in that it contained an insufficient number of Signatures to qualify the plaintiff Moore Party and plaintiff Moore for access to the ballot as a candidate for the office of Representative in the General Assembly for the Thirty-First Representative District for the November 2, 1982 general election.

16. In the cases of "Big James" Phipps, Case No. 80 EB 3 and James "Skip" Burrell, Case No. 80 EB 4, both decided on December 27, 1979, the Chicago Board, in sustaining the candidate's Motions to Strike Paragraphs 5 and 6 of Objector's Petitions, cited the following reasons for its decision:

   Paragraph [5, 6] of the Objector's Petition relies on
   the prohibition in Section 10-4 of the Election Code
   against the circulator of an independent candidate's
   petition from also circulating a petition for a
   candidate for a political party to be voted upon at
   the next Primary or General Election. The
   prohibitions contained in Section 10-4 are
   susceptible to varying interpretations. Moreover,
   there is no evidence in the record as to when in
   point of time the petitions (independent as well as
   political party) were circulated. Accordingly, to
   strike the signatures on ...

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