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Michael W. Hawkins v. James Tenuto

October 31, 2012


The opinion of the court was delivered by: Charles P. Kocoras, District Judge;


This matter comes before the Court on Defendants Illinois State Board of Elections ("Board") and Board Hearing Examiner James Tenuto's ("Tenuto") (collectively "Defendants"), motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12 (c). For the reasons set forth below, we grant Defendant's motion.


This case arises out of the alleged infringement of Plaintiff Michael Hawkins's ("Hawkins") constitutional rights, in violation of 42 U.S.C. § 1983 ("§ 1983"). Hawkins ultimately aspires to be placed on the ballot for the November 6, 2012 general election as a candidate for President of the United States. To ensure that his goal came to fruition, Hawkins filed a nominating petition with the Board listing his political affiliation as an independent. Subsequently Hawkins filed an additional petition seeking the admission of a new political party, the "Together Enhancing America" party. Hawkins was notified that Illinois law prohibits a candidate to run both as an independent and as a party candidate. Hawkins withdrew his initial independent petition.

A third party ("Objector") objected to Hawkins nomination petition because Hawkins submitted less than the minimal number of signatures required for a new political party nomination. Hawkins was notified of the objection and informed of his opportunity to contest the objection, in the context of a hearing. Prior to the Board hearing, Hawkins filed a motion to dismiss the objection and the Objector moved for summary judgment. Tenuto was appointed by the Board as Hearing Examiner. The duties of a Hearing Examiner range from gathering and preparing a report of all evidence to making recommendations to the Board concerning hearing decisions. Hawkins appeared at the July 9, 2012 hearing and professed the adequacy of his new party application.

Due to the necessity of resolving ballot objections quickly, the Board Rules pertaining to general elections calls for expedited proceedings based on raised objections. After reviewing Hawkins new party nomination petition, Tenuto issued his recommendation to the Board. Tenuto determined that Hawkins's petition was 24,999 signatures short of the minimum 25,000 signatures required by Illinois law to qualify for access to the ballot as a new party candidate for the President of the United States. After receiving Tenuto's recommendation, on July 23, 2012, the Board found that Hawkins's petition contained fewer signatures than the minimum required by law, and therefore would not certify Hawkins' addition to the 2012 Illinois general election ballot.

On July 26, 2012 Hawkins filed a complaint with the court, alleging that the Defendants violated his rights under the federal Constitution's due process clause and state law.


A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). The allegations in the complaint must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff need not provide detailed factual allegations; it must only provide enough factual support to raise its right to relief above a speculative level is all that is required. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a viable claim must be facially plausible, a requirement that is satisfied "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing a motion to dismiss, the Court accepts all well pled facts as true and draws all permissible inferences in the plaintiff's favor. Agnew v. NCAA, 683 F.3d 328, 334 (7th Cir. 2012). A document filed pro se is to be liberally construed and however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007).


Hawkins's complaint alleges that the Board and Tenuto failed to provide an adequate hearing to resolve the objection to his petition for him to ultimately gain access to the general election ballot. Specifically Hawkins complains that he was not allowed to present mitigating evidence or question witnesses. Giving wide latitude to the pro se nature of Hawkins's complaint the Court gives considerable leeway in addressing his arguments. We construe Hawkins's complaint to allege that Defendants violated his right to procedural due process under the Fourteenth Amendment and related state law claims.

I. The Illinois State Board of Elections

The Board argues that they are immune from suit under the Eleventh Amendment. The Eleventh Amendment provides a state with immunity from suit in federal court unless the state consents to the suit or Congress has abrogated its immunity. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). While the Eleventh Amendment "is not jurisdictional in the sense that courts must address it sua sponte," its nature "suggests that it is a threshold issue." Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n.6. (1982). State agencies are treated as states for Eleventh Amendment purposes. Tucker v. Williams, 682 F.3d 654, 658 (7th Cir. 2012). The Supreme Court has determined that there is no exception to state sovereign immunity for § 1983 claims. Quern v. Jordan, 440 U.S. 332, 342 (1979). Additionally, states and their departments are not "persons" within the meaning of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).

It is well settled that the Board constitutes a state agency and therefore is immune from suit pursuant to the Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781 (1978) (holding that a suit against a State Board of Corrections is barred by the Eleventh Amendment); Stevenson v. State Bd. of Elections, 794 F.2d 1176 (7th Cir. 1986) (the Board of Elections as an entity, is not a proper defendant to a ...

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