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BLACK v. COOK CTY. OFFICERS ELECTORAL BD.

October 2, 1990

TIMUEL BLACK, OBIE ROBERTS, FANNIE O'BANNON, TERRIE POPE, DONNLEY R. PHILLIPS, and KAREM R. NEAL, Plaintiffs,
v.
COOK COUNTY OFFICERS ELECTORAL BOARD; STANLEY T. KUSPER, JR., AURELIA PUCINSKI and ERNESTO BORGES, individually and in their official capacities as members of the Cook County Officers Electoral Board, CHICAGO BOARD OF ELECTORAL COMMISSIONERS; ARNETTE HUBBARD, RAYMOND JAGIELSKI and MICHAEL HAMBLET; individually and in their official capacities as Members of the Chicago Board of Elections Commissioners, Defendants



The opinion of the court was delivered by: NORDBERG

 JOHN A. NORDBERG, UNITED STATES DISTRICT JUDGE

 STATEMENT OF FACTS

 Plaintiffs bring this action under 42 U.S.C. § 1983, seeking injunctive and declaratory relief. Plaintiffs are signatories to nominating petitions for candidates to the Harold Washington Party ("HWP"). Those candidates were disqualified from appearing on the ballot for county-wide elections to take place November 6, 1990. Finding that the HWP had failed to meet certain requirements of the Illinois Election Code, Ill. Rev. Stat. ch. 46, Judge Eugene L. Wachowski of the Circuit Court of Cook County issued the disqualification order on September 20, 1990. Plaintiffs allege that Judge Wachowski's order, and the statutes underlying it, violated their Constitutional rights under the First and Fourteenth Amendments.

 Concurrently with this action, the HWP appealed Judge Wachowski's decision to the Illinois Appellate Court. To expedite review, the Supreme Court of Illinois agreed to hear the case directly. Oral arguments there are scheduled to take place on October 3, 1990. Now before the court are plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. For the reasons stated below, the defendants' motion to dismiss is granted with prejudice.

 MOTION TO DISMISS

 The intervening defendants, Dorothy Reed, Valerie A. Sutton, Patton L. Feichter, Ervin S. Ricks, and David Berrera, move to dismiss. *fn1" They present five grounds in support of their motion: abstention, the Anti-Injunction Act, res judicata, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. Although the first three grounds do not apply, the last two require dismissal of this action, as explained below.

 (1) Abstention. Defendants urge the court to abstain pursuant to Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). But the Younger doctrine, which forbids a federal court from enjoining state court proceedings, has no bearing on this action. More relevant are the abstention doctrines expressed in Pullman, Burford, or Colorado River, but none of these cases require the court to abstain here for one principal reason: delay. Where, as here, "the dispute contains an urgent temporal concern defined by the upcoming . . . election," abstention "would merely delay the ultimate resolution of the parties' dispute . . ." Mintz v. Barthelemy, 722 F. Supp. 273, 280 (E.D. La. 1989). See also Badham v. U.S. Dist. Ct. for N.D. of Cal., 721 F.2d 1170, 1173 (9th Cir. 1983) (no abstention in voting case, where the "dangers posed by an abstention order are particularly evident . . . delay in such cases is particularly insidious.. ."). Given the nature of plaintiffs' action, abstention would be inappropriate.

 (3) Res Judicata. Because plaintiffs were privy to the Circuit Court proceedings, say defendants, the doctrine of res judicata prevents them from bringing this suit. Res judicata precludes the exercise of federal jurisdiction as to any matters raised, or which could have been raised, before the state court. Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). Plaintiffs here deny being in privity with the plaintiffs who appeared before Judge Wachowski.

 Whether or not there is privity is of no consequence. *fn2" Judge Wachowski expressly declined to consider plaintiffs' constitutional challenges in his order of September 20, 1990 ("The constitutionality of § 10-2 of the Election Code need not be addressed"). Because the Circuit Court did not address the constitutional claims brought by their privies, plaintiffs cannot be barred by res judicata from bringing them here. Cf. Migra v. Warren City, supra, at 84 ("In the present litigation, plaintiff does not claim that the state court would not have adjudicated her federal claims had she presented them in her original suit in state court.").

 (4) Lack of Subject Matter Jurisdiction. It is well-established that lower federal courts have no jurisdiction to review the final determinations of state judicial proceedings. See, e.g., Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986) (see cases cited). The Supreme Court recently revisited this principle in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983). In Feldman, the Court held that the district court lacked jurisdiction over much of the plaintiffs' challenge to a decision issued by the District of Columbia court. That court, which is equivalent to a state court, had denied the plaintiffs' petitions for waiver of certain requirements for admission to the D.C. bar. The Supreme Court explained:

 
United States district courts . . . have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case. They do not have jurisdiction, however, over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional. Review of those decisions may be had only in this Court.

 Feldman, at 486.

 Applying this principle to the facts before it, the Court found the district court had jurisdiction to decide the constitutionality of the District of Columbia's bar rule, because that task did not require review of "a state court judgment in a particular case." Id. The district court had no jurisdiction to review Feldman's constitutional challenge to the rule's application in his particular case, however. Feldman, 460 U.S. at 486-87. The Court fashioned the following rule for courts to follow in deciding whether jurisdiction may be exercised:

 
If the constitutional claims presented to a United States district court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application for admission to the state bar, then the district court is ...

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