The opinion of the court was delivered by: William T. Hart District Judge.
MEMORANDUM OPINION, FINDINGS
OF FACT, CONCLUSIONS OF LAW
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
 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
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,
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
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.
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
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
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
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
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 ...