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Eliot Paul Gould v. Byron A. Schneider

February 28, 2011

ELIOT PAUL GOULD, PLAINTIFF,
v.
BYRON A. SCHNEIDER, IN HIS CAPACITY AS CHAIRMAN OF THE ILLINOIS STATE BOARD OF ELECTIONS. DEFENDANT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

E-FILED

Monday, 28 February, 2011 05:26:48 PM

Clerk, U.S. District Court, ILCD

ORDER

On January 19, 2011, a Report & Recommendation [#19] was filed by Magistrate Judge Byron G. Cudmore in the above-captioned case, recommending that Defendant's Motion to Dismiss [#12] be allowed. Both parties have filed Objections [#21, 22] to the Magistrate Judge's recommendation. Defendant has filed a Response [#24] to Plaintiff's Objection. This Order follows.

STANDARD OF REVIEW

A district court reviews de novo any portion of a Magistrate Judge's Report and Recommendation to which written objections have been made. See FED. R. CIV. P. 72(b). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

BACKGROUND

On October 14, 2010, Plaintiff Eliot Paul Gould ("Gould"), filed a pro se Complaint against Defendant Byron A. Schneider ("Schneider"), in his capacity as Chairman of the Illinois State Board of Elections. In his Complaint, Gould takes issue with the nomination process provided in Illinois statutes regarding the selection of candidates for the United States Senate. He specifically alleges that "The section of Illinois statutes that provide for 'citizen challenges' are as confederate as an oath by Jim Crow." Complaint at 2. He further alleges that Illinois' Election Code violates the federal Constitution's Seventeenth and Twenty-Fourth Amendments, the State Board arbitrarily picks which statutes it must observe, and the State employs practices and procedures which allow abuse inconsistent with proper federal elections. In a separately filed "Statement as to Special Notifications," Gould alleges that a provision of the Voting Rights Act, 42 U.S.C. § 1973aa, has been violated by Illinois election law. Gould did not name Justice Thomas L. Kilbride ("Justice Kilbride"), Chief Justice of the Illinois Supreme Court, nor Michael Scodro ("Scodro"), Solicitor General of the Office of the Attorney General of the State of Illinois, as defendants, but he caused summons to be issued on them.*fn1 Kilbride and Scodro filed a Motion to Quash the return of service of summons upon them, arguing that Gould's method of service was not authorized by the Federal Rules of Civil Procedure or state law.

In the Report & Recommendation filed by the Magistrate Judge, he recommends that Defendant Schneider's Motion to Dismiss be allowed and Gould's Complaint dismissed with prejudice. Magistrate Judge Cudmore further recommends that the pending Motion to Quash by Justice Kilbride and Scodro be denied as moot.

ANALYSIS

I. Defendant Schneider's Objection

Defendant Schneider objects to the portion of the Magistrate Judge's recommendation that Gould should be found to have standing to bring his Complaint. Schneider takes issue with that recommendation on the bases that Gould has not sufficiently alleged facts to show he has standing as a taxpayer nor as a citizen. Schneider further contends that while a pro se party's complaint must be read liberally, there is no authority that supports the proposition that standing to sue is broader for pro se plaintiffs than it is for other litigants.

Schneider's Objection to the finding of standing highlights how Gould's Complaint apparently lacks enough allegations to confer standing on him as a taxpayer and citizen. The level of pleading that Schneider believes Gould has failed to reach verges on that required of a litigant represented by counsel. However, Schneider does correctly argue that, even construing the Complaint liberally, Gould has failed to allege facts that would confer standing upon him as a taxpayer. Gould's brief and sole allegation related to state spending is that "more than an 'iota' of state expense is made upon the candidates subject to removal." Complaint at 4. He otherwise complains of how Illinois' election laws allegedly work to exclude certain candidates from the ballot in violation of the federal Constitution. Gould's status as an Illinois and United States taxpayer and his claim that Illinois' allowance of citizen challenges is unconstitutional lack the "logical nexus" necessary to find he has standing as a taxpayer to bring that claim. Flast v. Cohen, 392 U.S. 83, 102 ...


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