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Fiske v. Wollin

August 21, 2006


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiffs Judy Fiske ("Fiske") and Jeanne Kamps Lindwall ("Lindwall") have sued Cheryl Wollin ("Wollin"), Northwestern University ("Northwestern," "the University"), and certain officials of the City and Township of Evanston ("the nominal defendants") in connection with an April 5, 2005 aldermanic election in Evanston, Illinois. The plaintiffs allege that Northwestern and Wollin were engaged in a "vote-buying" scheme designed to help Wollin win the election. Three separate motions to dismiss have been filed by the various defendants. For the following reasons, the defendants' motions to dismiss are granted.


On April 5, 2005, the City of Evanston held a consolidated election. Fiske and Wollin were candidates (and the only candidates) in the race for First Ward Alderman. Ten days later, on April 15, the Canvassing Board announced the results: Wollin had been elected over Fiske by 81 votes.

On May 19, 2005, the plaintiffs filed a complaint in the Circuit Court of Cook County. The suit alleged that Wollin and Northwestern, through the latter's agents and employees, had conspired to encourage voters to vote for Wollin and to discourage voters from voting for Fiske. The alleged conspiracy involved various forms of wrongful conduct on Wollin's and Northwestern's part. For example, the plaintiffs claimed that Northwestern students were given a number of benefits in exchange for registering and voting in the election, including advantages in obtaining student housing assignments, and free admission to a party featuring live entertainment and free food and drink. The complaint also alleged that Northwestern urged students living in university housing to vote in the Evanston election, telling students that doing so would not affect their state citizenship and thus would not impair their ability to receive financial aid in their home states. The plaintiffs further claimed that Wollin and Northwestern employees circulated, and encouraged the University's student organizations to circulate, derogatory emails about Fiske, asking students to vote for Wollin. Northwestern also allegedly allowed Wollin to "campaign to" students residing in university housing while refusing Fiske access to the same students. Finally, the suit claimed that Northwestern encouraged students to vote in Evanston "from an address from which they had moved more than 30 days prior thereto," allegedly telling students that if their right to vote were challenged at the polling place, the students could show their university identification cards, which do not disclose their residences.

The complaint asserted several causes of action based on these allegations, including violations of the Illinois Election Code, the Illinois Constitution, as well as the First and Fourteenth Amendments of the U.S. Constitution. In addition, the suit asserted an "election contest" claim, which sought to reverse the results of the April 5 election. The plaintiffs also filed an "election contest" pleading before the Evanston City Council. The Cook County Circuit Court subsequently found that it lacked jurisdiction over the election contest claim, apparently on the ground that under Illinois law, the Evanston City Council was required to adjudicate the claim.*fn1 In addition, the court transferred the plaintiffs' remaining civil rights claims to a different division of the Cook County Circuit Court.

The defendants later removed the case to this court. The plaintiffs then filed an amended complaint and, some months later, were granted leave to file a second amended complaint. The second amended complaint, which is currently before the court, consists of two counts: Count I alleges that Northwestern violated 42 U.S.C. § 1983 ("section 1983") and 42 U.S.C. § 1985 ("section 1985") by engaging in a fraudulent scheme to elect Wollin. Count II, which is brought pursuant to the court's supplemental jurisdiction, asks the court to exclude the alleged illegal and fraudulent votes, to order a recount, and to declare Fiske the victorious candidate. Separate motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) have been filed by Northwestern, Wollin, and by the electoral officials named as "nominal defendants" in the complaint. Northwestern's and Wollin's motions to dismiss are largely based on the same grounds and therefore are considered together in what follows.*fn2 The nominal defendants' motion, which raises very different issues, is considered separately below.



When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept the factual allegations in the plaintiff's complaint as true. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). The court then considers whether any set of facts consistent with the allegations could support the plaintiff's claim for relief. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A complaint need only contain enough facts to put the defendant on notice of the claim so that an answer can be framed. Flannery v. Recording Indus. Assoc. of America, 354 F.3d 632, 639 (7th Cir. 2004). Dismissal should be granted only if it is "beyond doubt" that the plaintiff cannot prove any set of facts to support a claim entitling him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).


Count I of the complaint alleges that Northwestern and Wollin violated section 1983 by violating the plaintiffs' rights under the First and Fourteenth Amendments. Additionally, Count I alleges that Northwestern and Wollin violated section 1985 by conspiring to deprive the plaintiffs of their First and Fourteenth Amendment rights. The court discusses each in turn.

A. Section 1983

In order to establish a violation of section 1983, a plaintiff must show (1) state action and (2) the deprivation of a right secured by the Constitution or laws of the United States. Holcomb v. De Larkins, 85 C 1138, 1985 WL 1715, at *1 (N.D. Ill. June 6, 1985) (citing Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 n.1 (7th Cir. 1985)). Since ...

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