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June 29, 2001


The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge


Plaintiffs, The Terra Foundation for the Arts, Paul Hayes Tucker, Alan K. Simpson, and Judith Terra, the latter three all directors of the Terra Foundation, have sued Floyd D. Perkins, an Assistant Attorney General for the State of Illinois who is charged with enforcing the State's charitable institution laws, alleging that Mr. Perkins violated their federal constitutional rights to due process and freedom of speech by intimidating two other Terra Foundation directors who, as a result of the intimidation,*fn1 are about to vote to substantially change the by-laws of the Terra Foundation and take other acts that will force the Terra Foundation to keep its valuable art collection in Illinois for many years. Plaintiffs seek a temporary restraining order that would prevent either the vote that is expected to take place tomorrow, June 29, 2001, from taking place, or would prevent the two allegedly intimidated directors from taking part in that vote. Plaintiffs have not sued the two directors.*fn2 Plaintiffs nevertheless say that an injunction against the Attorney General will prevent either any vote from taking place or the two directors' participation in that vote on the ground that because of the intimidation the two directors have become de facto agents of the Attorney General. They argue therefore that an injunction against the defendant will be binding on the directors.

There are at least two problems with plaintiffs' attempted resolution of their conflict in this court. First, there is an ongoing lawsuit (two actually) presently pending in the Circuit Court of Cook County in which the present plaintiffs are defendants and involving the same subject matter raised in their federal court complaint. It is actually a proposed resolution of those lawsuits through a settlement which is expected to be voted on tomorrow that plaintiffs seek to stop. Plaintiffs say that neither the Rooker-Feldman doctrine, see Rocker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), nor the Anti-Injunction Act, 28 U.S.C. § 2283, prohibit this court from acting so long as it acts before the anticipated consent decree is entered in state court, but assuming that is so, principles of comity and federalism call for abstention where the issues raised can be litigated in the ongoing state action and where action by the federal court would interfere in the state proceeding.

The State of Illinois, representing Mr. Perkins, invokes Younger v. Harris, 401 U.S. 37 (1971), in support of abstention. Younger holds that federal courts cannot enjoin ongoing state criminal proceedings unless extraordinary circumstances are present. In a companion case, Samuels v. Mackell, 401 U.S. 66 (1971), the Court applied a similar result to actions for declaratory judgment because they would also interfere with state prosecutions. Younger has been extended widely, including to civil contexts. For example, the State of Illinois likens this case to Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (Younger abstention appropriate when the relief sought by the federal plaintiff was an injunction against the party that had prevailed in state court to prevent it from executing its judgment prior to an appeal to a state appellate court). That case is not precisely on point because there, judgment had been entered, whereas in the case before me the goal is to prevent judgment from being entered. However, judgment need not have been entered for Younger abstention to be appropriate.

The Seventh Circuit states that abstention is appropriate "if the impacted state proceedings satisfy the following requirements: (1) the judicial or judicial-in-nature state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges." AFSCME v. Tristano, 898 F.2d 1302, 1305 (7th Cir. 1990). These requirements are satisfied here. The state court proceedings are obviously judicial. The State of Illinois has set forth what it believes to be, and what I agree are, important state interests in its ability to regulate charitable institutions. It is not necessary that I endorse the policy adopted by the state to recognize that the interests it invokes are important. Finally, there was — and as far as I know still is — ample opportunity to raise any constitutional challenges in the state court proceedings.

The plaintiffs respond that section 1983 provides an exception to the usual application of Younger because federal protection is needed in such cases to vindicate plaintiffs' rights against state abuses. This is not in general true. For example, in Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir. 1995), the court affirmed the use of Younger abstention in a § 1983 case seeking civil relief for constitutional violations of a man convicted of a crime; accord State of Indiana v. Haws, 131 F.3d 1205, 1210 (7th Cir. 1997) (quoting from Barichello v. McDonald, 98 F.3d 948, 954 (7th Cir. 1996): "Younger has `come to mean that absent unusual circumstances, a federal court must refrain from entertaining injunctive relief which might interfere with the . . . judicial process of state courts. . . .'"). Section 1983 is not a magic key into federal court, especially when, as here, there is ample opportunity to litigate the constitutional issues in state court. Moreover, there is no reason to think that the plaintiffs require the special protections of federal court even though the state is a party to the state court action. The only basis that the plaintiffs give for thinking there may be a problem with the state court is that the very able state court judge is elected. That is not a reason to think that she cannot fairly resolve charges of misconduct made against the state and its officers, such as Mr. Perkins.

Even if I were not to abstain, however, I could not grant the temporary restraining order sought by the plaintiffs. In the first place, plaintiffs do not appear to have standing. In order for a party to bring suit in federal court, three constitutional requirements under Article III must be met: "(1) the party must have personally suffered an actual or threatened injury caused by the defendant's illegal conduct; (2) the injury must be fairly traceable to the challenged conduct; and (3) the injury must be one that is likely to be redressed by a favorable decision." United Transp. v. Surface Transp. Board, 183 F.3d 606, 611. n. 2 (7th Cir. 1999). In this case, the last requirement is missing.

The only defendant named is Mr. Perkins. It would do no good to enjoin him from interfering in Board business or intimidating the directors with respect to the meeting at question. The State of Illinois says that he is in Canada, and does not even know that he has been sued. As the State says, with respect to his involvement, tomorrow is the best time to hold the meeting.

The plaintiffs really want me to enjoin Drs. Marshall and Stebbins from voting or coming to the meeting, but they are not defendants. If they were named, however, they could not be sued under section 1983, the basis for my jurisdiction. The plaintiffs suggest that they can be enjoined as persons acting "in consort" with the defendant, or as his agents. But they offer no authority that persons who have been intimidated or influenced by a state actor are acting in consort with them or as agents of those who intimidate them, or indeed that they could be named as section 1983 defendants at all. That section requires state action. And that is hard to show.

The Supreme Court has articulated several tests for when private action is state action: the "public function" test, the "state compulsion" test, the "nexus" test, and the "joint action" test. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982). of these, only the "joint action" and "state compulsion" tests are worth considering. The tests are fact-specific. "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961); Dunham v. Frank's Nursery & Crafts, Inc., 919 F.2d 1281, 1284 (7th Cir. 1990)

The "joint action" theory, articulated in cases like Dennis v. Sparks, 449 U.S. 24, 27 (1980), says that a private defendant acts under color of state law when he is "a willful participant in joint action with the State or its agents." A charge of joint action amounts to alleging "some agreement between private and public actors to violate plaintiff's constitutional rights." Cunningham v. Southlake Center for Mental Health, Inc., 924 F.2d 106, 107 (7th Cir. 1991) (citing Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) ("To prove a conspiracy between private parties and the government under § 1983, an agreement or `meeting of the minds' to violate constitutional rights must be shown.")). "A requirement of the joint action charge therefore is that both public and private actors share a common, unconstitutional goal." Id. If the directors in question are unwillingly intimidated, however, they are not willful joint actors who share Mr. Perkin's hypothetically unconstitutional goals. See Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir. 1985).

I suppose one could be an unwilling co-conspirator, but what is alleged here is not that Drs. Marshall and Stebbins share any unconstitutional goals or have conspired, however unwillingly, to deprive the plaintiffs of their rights, but that they were somehow coerced into changing their votes on the settlement, basically to get Mr. Perkins off their backs, which change will have the effect of furthering Mr. Perkin's unconstitutional goals. That is not what is required.

But the situation for the plaintiffs is worse than this analysis suggests. "To state a § 1983 claim against a private actor, plaintiffs must show that the defendant invoked state authority in such a way that the defendant should be considered a state actor." Davis v. Union National Bank, 46 F.3d 24, 25 (7th Cir. 1994). For example in Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344 (7th Cir. 1986), the court held that a private person became a state actor for purposes of the state action requirement when he repossessed collateral on the strength of an ex parte order issued by a court. The ex parte order instructed the sheriff to assist the private person if need be to carry out the order. In that case it was not necessary to call the sheriff. The court held that "[t]he fact that the sheriff remained in the background and hence could not be joined as a defendant does not deprive Carpenter Cook's action in enforcing a judicial order of its character as state action." Id. at 1346. Here, it would not be possible to say that Drs. Marshall and Stebbins invoked the power of the Illinois Attorney General's office, which remains in the background: they are not argued to invoke any power; they have no court or administrative order to carry out, and they could not call in Mr. Perkins to back them up if they wanted to, which, the plaintiffs argue, they do not.

The plaintiffs' best shot is the "state compulsion" test, under which a § 1983 claim may be stated "when the state has so implicated itself in the defendant's action that the state has in effect compelled the action." Starnes v. Capital Cities Media, Inc, 39 F.3d 1394, 1396 (7th Cir. 1994). This test originated in Adickes v. S. H. Kress & Co., 398 U.S. 144, 170 (1970). There the Court held that a "state is responsible for the [unconstitutional] act of a private party when the state, by its law, has compelled the act." `When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby `to a significant extent' has `become involved' in it.'" Id. ...

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