candidates on a ballot. Id. The limitation on the maximum number of signatures was upheld as rational. Id. However, the removal of the candidate from the ballot for violating the maximum signature rule was found not to be constitutionally rational. Instead, the reviewing body could have refused to accept more than the maximum number or otherwise taken an action to cure the defect. Id. at 147-49.
The present case is similar. As in Richards, only rationality analysis should be applied. Consistent with Richards (but contrary to plaintiffs' argument), no fundamental right of political association is implicated. There is, however, no rational basis for removing plaintiff from the ballot. To the extent Towns's Statement of Candidacy is ambiguous and properly found to not be in substantial compliance with the law, it is not rational to remove him from the ballot when the Statement can be clarified to expressly state he is running for nomination in the primary and that he is a licensed attorney. Plaintiffs have a likelihood of success on their constitutional claim that due process was violated because the decision of the Electoral Board was not rational.
Relying on Gjersten v. Smith, 791 F.2d 472 (7th Cir. 1986), plaintiff also argues that the Electoral Board's actions violated the equal protection provisions of the federal Constitution. Plaintiffs contend it violates equal protection to require that State's Attorneys expressly state they are attorneys without also requiring judges to do so on their statements of candidacy. Gjersten involved the question of the number of signatures required on petitions for a particular office and the contention that the number required violated equal protection when compared to another similar office. Gjersten states that each case is to be considered individually. Id. at 477. Most importantly, it must be considered that Gjersten involved fundamental rights. See Bowe v. Board of Election Commissioners of City of Chicago, 614 F.2d 1147, 1151 (7th Cir. 1980) (followed in Gjersten). The requirement of stating the candidate is an attorney, however, need only be justified by a rational basis. Perhaps there is some rational basis for distinguishing candidates for judges from candidates for state's attorneys. At the present time, however, defendants offer no rationale so it must be assumed that plaintiffs have a likelihood of succeeding on their claim that the requirement to explicitly state the candidate is a licensed attorney violates equal protection. That claim alone, however, would not entitle plaintiffs to relief since Towns was also disqualified for using the word "election." It has already been held, though, that was not a proper basis for disqualifying him. Plaintiffs' equal protection claim adds weight to the likelihood of plaintiffs succeeding on their claims.
Plaintiffs also claim that procedural due process was violated because the Electoral Board was not impartial. It is true that due process guarantees an impartial tribunal. See Briscoe v. Kusper, 435 F.2d 1046, 1056, 1058 (7th Cir. 1970); Ryan v. Landek, 159 Ill. App. 3d 10, 512 N.E.2d 1, 2, 111 Ill. Dec. 97 (1987). No federal case was found which considers the issue of political bias of an election board, but the Illinois courts have considered the issue. They hold there is no due process violation because the candidate has the right to review in the Circuit Court by an impartial judge. Ryan, 512 N.E.2d at 2; Ayers v. Martin, 1991 WL 278319 (Ill. App. 4th Dist. Dec. 30, 1991). In accordance with Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and its progeny, this would appear to be the correct ruling on the procedural due process claim presented. Plaintiffs are unlikely to succeed in obtaining relief on the procedural due process claim.
Plaintiffs concede that Towns has also pursued relief in the Circuit Court of Boone County. In that court, he sought both mandamus relief and a writ of certiorari. Mandamus relief was denied and certiorari relief was held to be an inappropriate procedure. Appeals of both those decisions are pending in the Illinois Appellate Court and Towns is awaiting a ruling on his motion for expedited proceedings. Towns contends that he brought the state court actions only in his capacity as a candidate
and that he and Swanson bring their federal suit only in their capacities as voters. Towns concedes that he did not raise the federal claims in state court, except for the impartiality issue on which the state court ruled consistently with Ryan, supra.
The Electoral Board defendants move to dismiss on the ground that the claims against them are barred by res judicata. It is not appropriate to decide the motion to dismiss;
only to consider whether principles of res judicata make it unlikely that plaintiffs will succeed on the merits of their claims.
Res judicata applies to bar claims where there is "(1) a final judgment on the merits in an earlier action; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits." Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir. 1982). Accord Hartke v. Chicago Board of Election Commissioners, 651 F. Supp. 86, 88 (N.D. Ill. 1986). Res judicata bars not only those issues that were actually litigated and decided, but any issues which could have been raised. Lee, 685 F.2d at 198.
Plaintiffs argue that res judicata does not apply because the state court suits were brought by Towns as a candidate, while the present suit is brought by Towns as a voter and Swanson who was not a party to the state actions. Even assuming Towns stood in different shoes in the state actions than in the present federal action, both Towns and Swanson are likely to be found to be in privity with Towns the candidate. Hartke, 651 F. Supp. at 90-91 (persons who circulate petitions are in privity with others who sign the petitions and both represent the same legal interests).
Defendants argue that the impartiality issue that was raised and the other federal claims that could have been raised should be barred. Plaintiffs argue that the federal claims, could not be raised in the state court suits. This requires consideration of the state court procedures employed by Towns.
Under Illinois law, a candidate or objector may obtain judicial review of the determination of an electoral board pursuant to Ill. Rev. Stat. ch. 46, para. 10-10.1. The Illinois Supreme Court has also held that mandamus is an appropriate remedy where the procedures under the Election Code are inadequate. See Dooley v. McGillicudy, 63 Ill. 2d 54, 345 N.E.2d 102, 104 (1976).
Mandamus may be an appropriate remedy in situations which are of great import even though the normal criteria for an award of such relief are not evident. We have recognized the existence of exceptions to the doctrine of exhaustion of remedies in analogous circumstances where strict application of the doctrine would lead to unjust or very harsh results. This court has further said that "In cases involving the election process, where the time factor alone would usually render an appeal futile, this court has seen fit to grant original writs of mandamus."
Id. at 104 (citations omitted).
The Circuit Court dismissed Towns's petition for certiorari on the ground that Towns should instead be proceeding under the Election Code. Since that was not a decision on the merits, it can have no res judicata effect on the merits of any of plaintiffs' claims.
The mandamus petition is a more difficult question. That case apparently involved a ruling on the merits of the claims made in the case.
The question remains as to whether the federal constitutional claims could have been raised in that case.
Defendants point to precedent that federal constitutional issues can be raised in proceedings under the Election Code. Towns, however, was pursuing a mandamus proceeding, not judicial review under para. 10-10.1. There is, however, also precedent that constitutional issues can be raised in mandamus proceedings involving elections. See People v. Kerner, 32 Ill. 2d 539, 208 N.E.2d 561 (1965). Since Towns could have raised the federal constitutional issues in the mandamus proceeding and since the court ruled on the merits in that proceeding, the federal claims are likely to be found to be barred by res judicata. Therefore, plaintiffs are unlikely to reach the merits of their claims, and a temporary restraining order will be denied.
Defendants also raise the issue of abstention. There is precedent supporting abstention. See Ament v. Kusper, 370 F. Supp. 65 (N.D. Ill. 1974). There is also precedent that a court should not abstain where the timing and urgency of an upcoming election requires an immediate decision. See Black v. Cook County Officers Electoral Board, 750 F. Supp. 901, 902 (N.D. Ill. 1990). Since the motion for temporary restraining order is denied, it is unnecessary to resolve this issue. The issue of abstention is left to be decided by the assigned judge.
barred. The question is whether a due process rationality argument could be made. To the extent federal claims could be raised in the mandamus proceeding, the candidate could have raised that issue just as readily, if not more readily, than the voters.
IT IS THEREFORE ORDERED that plaintiffs' motion for a temporary restraining order is denied. Electoral Board defendants' motion to dismiss is entered and continued.
William T. Hart
UNITED STATES DISTRICT JUDGE
Dated: FEBRUARY 4, 1992