Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County No. 14 L 3955 Honorable
Kathy M. Flanagan, Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion. Justices Cunningham and Rochford
concurred in the judgment and opinion.
HOFFMAN PRESIDING, JUSTICE
1 The plaintiff, Princess Dempsey, filed the instant action
against the defendant, Maxine Johnson, individually and in
her official capacity as clerk of the Village of Broadview
(Village), seeking redress for alleged violations of her
state and federal constitutional rights and rights under the
Election Code (10 ILCS 5/1-1 et seq. (West 2012)).
She appeals the circuit court's order dismissing her
two-count third-amended complaint (amended complaint)
pursuant to section 2-615 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615 (West 2012)). For the reasons that
follow, we affirm in part, reverse in part, and remand for
2 The allegations of the plaintiff's complaint may be
summarized as follows. The plaintiff was an independent
candidate who sought to be elected to the office of Village
president in the April 9, 2013, consolidated election. Judy
B. Brown-Marino, whose party-affiliation is not alleged in
the complaint, was a "direct opponent" of the
plaintiff. Johnson, a democrat, served as Village clerk and
was "allied with" Brown-Marino. The amended
complaint alleges that Johnson, as Village clerk, was vested
with certain "statutory powers and duties"
regarding the 2013 consolidated election. For example,
Johnson's "statutorily mandated duties"
included certifying the names of candidates to be included on
the ballot, issuing amended certifications, and publishing
notices about the election. See 10 ILCS 5/7-60.1, 10-15 (West
2012). Johnson was also required to serve as a member of the
Village's Municipal Officers Electoral Board (electoral
board) and "pass upon objections to the nominations of
3 On December 26, 2012, the plaintiff filed her nominating
petitions in the Village clerk's office. Johnson, through
her election-related duties as Village clerk, had actual
knowledge of the plaintiff's political affiliation and
knew that she was running against Brown-Marino. Allegedly,
Johnson "took the extraordinary step" of removing
the plaintiff's nominating petitions from her office in
the Village and took them home to "assist"
Brown-Marino in challenging the sufficiency of the petitions.
Thereafter, Brown-Marino filed an objection to the
plaintiff's nominating petitions seeking to strike the
plaintiff's name from the ballot as a candidate for the
office of Village president.
4 A hearing on the objection was held before the electoral
board. See 10 ILCS 5/10-10 (West 2012). At the hearing, the
plaintiff sought to "disqualify" Johnson as a
member of the electoral board on grounds that she was biased,
but the board voted 2-1 against the plaintiff's request.
The plaintiff also sought, unsuccessfully, to subpoena
Johnson to testify regarding "irregularities" in
the processing of her nominating petitions. On February 14,
2013, following a hearing, the electoral board determined
that the plaintiff's nominating petitions were
insufficient under the Election Code and ordered the
plaintiff's name to be removed from the ballot. The
complaint does not provide the ground or grounds upon which
the electoral board found the plaintiff's nominating
petitions to be "insufficient." The complaint does
allege, however, that Johnson voted in favor of striking the
plaintiff's name from the ballot in an effort to
"destroy" her candidacy.
5 Thereafter, the plaintiff filed a petition for judicial
review in the circuit court of Cook County. See 10 ILCS
5/10-10.1 (West 2012). On March 7, 2013, the circuit court
set aside the electoral board's decision and ordered the
plaintiff's name to be printed on the ballot as an
independent candidate in the April 9, 2013, consolidated
election for the office of Village president.
6 At approximately 8 p.m. on April 8, 2013, the day before
the consolidated election, Johnson disseminated a
pre-recorded message ("robo-call") to all
registered voters in the Village. In the robo-call, Johnson
identified herself as the Village clerk and "official
electoral officer" and falsely stated that: the
plaintiff was not a legitimate candidate; the plaintiff had
been officially removed from the ballot; and any votes cast
in the plaintiff's favor would be a "lost
vote." The plaintiff states that Johnson used Village
resources and personnel, including its "reverse 911
system" to robo-call residents of the Village and that
she acted willfully and wantonly in communicating false
information to the voters. She asserts that, despite the
circuit court's order, Johnson's robo-call
"communicated an amended certification" and
effectively removed her name from the ballot. The plaintiff
further alleges that Johnson treated her differently than
similarly situated candidates in the consolidated election
and that Johnson's discriminatory conduct was motivated
solely by "political animus"-namely, the
plaintiff's "political association" as an
independent candidate. The plaintiff claims that Johnson
"destroyed" her candidacy, suppressed votes in her
favor, and caused her to lose the election.
7 On July 23, 2015, the plaintiff filed her two-count amended
complaint. Count I of her amended complaint is brought under
section 29-17 of the Election Code (10 ILCS 5/29-17 (West
2012)), which provides a cause of action for the deprivation
of state and federal constitutional rights relating to
elections. She claims that Johnson: (1) deprived her of her
right to freedom of association by retaliating against her
for her political affiliation as an independent candidate
(see U.S. Const. amend. I; Ill. Const. 1970, art. III, §
3); (2) violated her right to equal protection of law by
treating her differently than all other candidates in the
consolidated election (see U.S. Const. amend. XIV; Ill.
Const. 1970, art. I, § 2); and (3) violated section
9-25.1(b) of the Election Code (10 ILCS 5/9-25.1(b) (West
2012)) by using public funds to urge electors to vote against
her. Count II of her amended complaint contains the same
allegations as count I but is brought under section 1983 of
the federal Civil Rights Act (42 U.S.C. § 1983 (2012)).
It alleges that Johnson violated her (1) first amendment
right to freedom of association, and (2) fourteenth amendment
right to equal protection of law.
8 On August 12, 2015, Johnson filed a combined motion to
dismiss the plaintiff's amended complaint. See 735 ILCS
5/2-619.1 (West 2014). She contended that, pursuant to
section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)), the
plaintiff's amended complaint failed to state a claim
because, among other reasons, it did not "identify any
fundamental right of which [the plaintiff] was actually
deprived." Johnson also argued that the allegations
failed to establish that the "robo-call actually
deprived [the] [p]laintiff of any civil rights" since
the plaintiff's name remained on the ballot and voters
had the opportunity to vote in her favor. Second, Johnson
asserted that the amended complaint should be dismissed
pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West
2014)) as the plaintiff's claims are barred by the Local
Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West
9 On October 23, 2015, after the matter was fully briefed,
the circuit court entered a written order granting
Johnson's motion to dismiss the complaint with prejudice
for failure to state a claim. See 735 ILCS 5/2-615 (West
2014). This timely appeal followed.
10 Johnson's combined motion to dismiss was brought
pursuant to section 2-619.1 of the Code which permits a party
to move for dismissal under both sections 2-615 and 2-619 of
the Code. 735 ILCS 5/2-619.1 (West 2014). A section 2-615
motion challenges the legal sufficiency of a complaint based
on defects apparent on its face. K. Miller Construction
Co., Inc. v. McGinnis, 238 Ill.2d 284, 291 (2010). In
ruling on such a motion, the court may consider only those
facts apparent from the face of the pleadings, judicial
admissions in the record, or matters of which the court can
take judicial notice. Id. In addition, we accept all
well-pleaded facts in the complaint as true and draw all
reasonable inferences from those facts which are favorable to
the plaintiff. Patrick Engineering, Inc. v. City of
Naperville, 2012 IL 113148, ¶ 31. We review a
dismissal under section 2-615 de novo.
Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.
¶ 11 We first address the plaintiff's contention
that the circuit court erred in granting Johnson's
section 2-615 motion to dismiss count II of her amended
complaint. Count II was brought pursuant to section 1983 of
the Civil Rights Act (42 U.S.C. § 1983 (2012)) and
alleged that Johnson, while acting under color of state law,
violated the plaintiff's first amendment right to freedom
of association (U.S. Const. amend. I), and fourteenth
amendment right to equal protection of law (U.S. Const.
12 Initially, we note that the plaintiff filed her amended
complaint against Johnson in both her individual and official
capacity as Village clerk. As the Supreme Court explained in
Kentucky v. Graham, 473 U.S. 159, 165 (1985),
"[p]ersonal capacity suits seek to impose personal
liability upon a government official for actions [s]he takes
under color of state law. Official-capacity suits, in
contrast, 'generally represent only another way of
pleading an action against an entity of which [a government
official] is an agent.' " (Quoting Monell v. New
York City Department of Social Services, 436 U.S. 658,
690 (1978)); see also Doe v. Calumet City, 161
Ill.2d 374, 400 (1994) (distinguishing between personal- and
official-capacity suits). This distinction is important
because different requirements exist for establishing
personal and municipal liability in a suit brought under
section 1983. As discussed in more detail below, in order to
establish personal liability, "it is enough to show that
the official, acting under color of state law, caused the
deprivation of a federal right." Doe, 161
Ill.2d at 401 (citing Graham, 473 U.S. at 166).
Municipal liability, on the other hand, requires the
plaintiff to make an additional showing that the underlying
deprivation resulted from a municipal policy or custom."
Doe, 161 Ill.2d at 401 (citing Monell, 436
U.S. at 690). In the case at bar, we will address the
plaintiff's individual- and official-capacity section
1983 claims, in turn.
13 Section 1983 provides a private cause of action with
respect to the violation of federal constitutional rights.
The Act provides, in pertinent part, as follows:
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or any other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress." 42 U.S.C. § 1983 (2012).
14 The aim of section 1983 "is to deter state actors
from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails."
Wyatt v. Cole, 504 U.S. 158, 161 (1992). Section
1983 does not create substantive rights, but instead creates
a cause of action to remedy certain deprivations of rights
elsewhere conferred. Albright v. Oliver, 510 U.S.
266, 271 (1994). To state a claim under section 1983, the
plaintiff must allege that: (1) Johnson's actions
deprived her of a federal constitutional right; and (2)
Johnson was acting under color of state law when engaging in
the conduct complained of by the plaintiff. Fellhauer v.
City of Geneva, 142 Ill.2d 495, 514 (1991) (citing
Gomez v. Toledo, 446 U.S. 635, 640 (1980)). In this
case, we begin our analysis by examining whether count II of
the amended complaint alleges sufficient facts demonstrating
that the plaintiff was deprived of her federal constitutional
right to freedom of association (U.S. Const. amend. I) and
equal protection of law (U.S. Const. amend. XIV).
15 With respect to the first amendment claim, the plaintiff
alleges that Johnson violated her right to freedom of
association by retaliating against her based upon her
political affiliation as an independent candidate and
decision to run for the office of Village president. In
support of this claim, the plaintiff alleges that Johnson, a
democrat, sought to destroy her candidacy by robo-calling
Village residents and falsely informing them that the
plaintiff was not a legitimate candidate and that any votes
cast in her favor would be considered a "lost
vote." According to the amended complaint, Johnson's
conduct effectively removed the plaintiff's name from the
ballot, and caused the plaintiff to lose the election.
16 "The First Amendment affords the broadest protection
to *** political expression in order 'to assure
unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.'
" Buckley v. Valeo, 424 U.S. 1, 14 (1976)
(quoting Roth v. United States, 354 U.S. 476, 484
(1957)). The United States Supreme Court has "repeatedly
held that freedom of association is protected by the First
Amendment" (Williams v. Rhodes, 393 U.S. 23, 30
(1968)) and that restrictions on access to a place on the
ballot burden the right to free association. Illinois
State Board of Elections v. Socialist Workers Party, 440
U.S. 173, 184 (1979); see also Welch v. Johnson, 147
Ill.2d 40, 56 (1992) ("access to a place on the ballot
is a substantial right not lightly to be ...