Capitol - Your Illinois News Radar » Judge reverses course, allows part of lawsuit to continue against Madigan
SUBSCRIBE to Capitol Fax      Advertise Here      Mobile Version     Exclusive Subscriber Content     Updated Posts    Contact
To subscribe to Capitol Fax, click here.
Judge reverses course, allows part of lawsuit to continue against Madigan

Wednesday, Sep 13, 2017

* Press release…


Judge Grants Right to Amend Fillings (decision attached)

Mr. Gonzales ran against incumbent Speaker Michael Madigan in the 2016 Democratic primary for the District 22 seat of the Illinois House of Representatives. The Lawsuit argues that Mr. Madigan defeated Mr. Gonzales by engaging in illegal acts both by himself and through his vast network of operatives.

In 2016, Mr. Gonzales filed a 39-count lawsuit in the Northern District of Illinois United States District Court against Mr. Madigan and several of his co-conspirators.

Hearings on the lawsuit will be held on Wednesday.

The judge had twice kicked this lawsuit to the curb, but then agreed to partially reinstate it. Some background is here.

* From the ruling

In its ruling dated June 20, 2017, the Court held that Gonzales failed to allege that Madigan acted under color of state law because he “failed to allege that he used any power uniquely granted to him due to his positions as Speaker of the Illinois House and House Representative. This determination was based on the principle that not every action by a state official or employee is deemed to occur under color of state law. See, e.g., Sims, 506 F.3d at 515.

After consideration of Gonzales’s motion, the Court concludes that it read his amended complaint too narrowly and that Gonzales has in fact adequately alleged that Madigan’s conduct in this case involved power and authority he had by virtue of his official positions. Gonzales alleges that Madigan used funds he controls by virtue of his governmental offices—including the accounts of Friends, the Democratic Majority Fund, the 13th Ward Organization, and the Democratic Party of Illinois—to inform voters that Gonzales is a convicted felon.

Perhaps more importantly, he also alleges that Madigan used resources available to him due to his position as a state representative and Speaker of the Illinois House—including political favors, control of campaign funds, and precinct captains—to discredit Gonzales. Gonzales further alleges that Madigan’s official positions give him influence “over doling out jobs, favors and services.” Significantly, he alleges that Madigan used this influence to get Rodriguez a job in the office of the Illinois Attorney General in exchange for her service as a sham candidate—an allegation the Court overlooked in dismissing the amended complaint. Gonzales also alleges that both Barbosa and Rodriguez have volunteered for Madigan’s campaigns and/or used organizations associated with Madigan to obtain employment. In sum, Gonzales has adequately alleged that Madigan used resources available to him by virtue of his official positions and therefore that he acted under color of state law.

Gonzales also points to precedent from the Seventh Circuit that supports this conclusion. In Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), the court considered a suit in which Ronald Smith, the losing candidate in the Democratic primary for State Senator of Illinois District 12, alleged that Robert Cherry, his opponent, was a sham candidate. Id. at 1099–1100. After Smith lost the primary to Cherry, Cherry withdrew his candidacy, and the 12th Senatorial Committee (made up of five Democratic Ward Committeemen) appointed as the Democratic nominee Ben Palmer, who had been unable to run in the primary because he was no longer a resident of District 12. Smith filed suit against Cherry, Palmer, and the Committeemen under 42 U.S.C. § 1983, alleging that they had conspired to use Cherry as a sham candidate, knowing that he never intended to run in the general election, in order to make Palmer the nominee. The Seventh Circuit concluded that Smith had adequately alleged a claim under section 1983.Although the court did not expressly consider whether Smith had alleged that defendants acted under color of state law, it repeatedly referred to defendants’ conduct as “official treatment.” Thus Cherry reflects that a state representative’s use of his leverage to manipulate an election can constitute actionable conduct under color of state law.

In sum, the Court grants Gonzales’s motion to vacate the dismissal of the federal claims against Madigan. These claims are still potentially subject to dismissal based on the remaining arguments in defendants’ motion to dismiss the original complaint that the Court did not initially consider.

* More

The Seventh Circuit has, however, recognized the deprivation of a constitutional right where the defendant commits election fraud or engages in willful conduct that undermines the organic processes by which candidates are elected, including by placing sham candidates on the ballot. See Hennings, 523 F.2d at 864 (citing Cherry, 489 F.2d 1098). Therefore Gonzales has alleged that he was deprived of his right to equal protection based on defendants’ registration of the two sham candidates.

Defendants argue that Gonzales’s claim under this theory fails because he characterizes his claim as vote dilution, and vote dilution claims can only arise in the redistricting context. Regardless of whether this statement is true, Gonzales’s claim is not so limited. Although he refers to claims under this theory in shorthand as “vote dilution,” it is clear that he is alleging that defendants perpetrated a fraud by registering two sham candidates in the democratic primary. The fact that Gonzales argues the effect of this fraud was to dilute the Hispanic vote— the two alleged sham candidates have Hispanic surnames—does not negate the fact that the registration of sham candidates can, on its own, constitute a deprivation of a constitutional right.

The widely used practice of putting sham candidates on the ballot may disappear this cycle unless the judge rules against Gonzales before petition season concludes in late November.

- Posted by Rich Miller        

  1. - TopHatMonocle - Wednesday, Sep 13, 17 @ 12:48 pm:

    Who decides which candidates are sham candidates, and which are not. The courts? Is this done after the votes are counted, or would a court remove a candidate from the ballot because they deem them a sham candidate? The Cherry case makes it pretty clear since the sham candidate immediately withdrew after they won, but that only happened after the election took place. At the end of the day the voters decide who wins, sham candidates or no sham candidates. Welcome to democracy. Does there really need to be another layer of bureaucracy to determine which candidates are “real” candidates and which are not? Ballot access is already a problem and this would make it worse. One could probably make the case that Gonzales himself was a sham candidate on behalf of Blair Hull. Should Madigan have objected to his candidacy and make him prove that no one had put him up to running?

  2. - Oswego Willy - Wednesday, Sep 13, 17 @ 12:50 pm:

    ===Who decides which candidates are sham candidates, and which are not.===

    If you, personally, don’t know there is a difference, how to spot them, and why they exist, this might be the deep end of the pool for you…

  3. - IllinoisBoi - Wednesday, Sep 13, 17 @ 12:52 pm:

    Madigan’s Minions? You mean those cute little yellow guys that kids love? Cool!

  4. - TopHatMonocle - Wednesday, Sep 13, 17 @ 12:53 pm:

    Willy, I get it, but it’s a slippery slope and it seems to open up a new front in the game of trying to knock candidates off the ballot.

  5. - Ron Burgundy - Wednesday, Sep 13, 17 @ 12:53 pm:

    “Who decides which candidates are sham candidates, and which are not. The courts?”

    That’s what discovery, depositions, trial testimony and court arguments are for.

  6. - Oswego Willy - Wednesday, Sep 13, 17 @ 12:59 pm:

    ===Who decides which candidates are sham candidates, and which are not.===

    “Who are you calling a sham?” - Patrick John Ryan, Republican nominee, 22nd Representative District, 2010

    “Yeah, what Mr. Ryan said” - Terrence F Goggin, “usual” Republican nominee, 22nd Representative District.


  7. - Sue - Wednesday, Sep 13, 17 @ 1:01 pm:

    Perhaps Rahm can put this in the marketing package hd is going to send to Amazon. Sure this is what Bezos is looking for in terms of effective government for Amazon HQ II

  8. - Rich Miller - Wednesday, Sep 13, 17 @ 1:02 pm:

    === it seems to open up a new front in the game of trying to knock candidates off the ballot. ===

    Which just proves that, in the end, Kasper always wins. lol

  9. - Oswego Willy - Wednesday, Sep 13, 17 @ 1:02 pm:

    ===… it’s a slippery slope… ===

    Nah. It’s only “slippery” for candidates that go on vacation from April until December, lol.

    My take has been, they get on the ballot, they get to run, “shill” or not, “real” or phony.

    It’s part of the game.

    This order changes things, at least for the near term?

  10. - Michelle Flaherty - Wednesday, Sep 13, 17 @ 1:07 pm:

    – The widely used practice of putting sham candidates on the ballot may disappear –

    So now who’s gonna be Rauner’s running mate?

  11. - walker - Wednesday, Sep 13, 17 @ 1:11 pm:

    Very tricky minefield for a judge to traverse and find who isn’t really a legitimate candidate, after they have met all normal legal qualifications, filings, petitions, etc.

  12. - 'Goose - Wednesday, Sep 13, 17 @ 1:13 pm:

    Sham candidates? psssh. It’s called “ballot management” and is an interesting part of campaign mechanics.

  13. - Boone's is Back - Wednesday, Sep 13, 17 @ 1:22 pm:

    ===Gonzales argued Madigan and his allies deployed “resources available to them” to smear his name, including “supporters, precinct captains, campaign war chests, and political favors.” But the judge said said Gonzales failed to provide “any specific instances of how he contends any of these defendants employed these resources or otherwise misused power possessed by virtue of state law.”===

    None of those things are state resources. Just because the guy is the Speaker of the House doesn’t mean that he breathes under the color of state law. As the soup nazi would say… “Next!”

  14. - Concerned Dem - Wednesday, Sep 13, 17 @ 1:23 pm:

    So a candidate’s ability to stay on the ballot will eventually be based on how much money they can spend on legal representation during a challenge to their legitimacy. Great… this will definitely help improve the quality and quantity of candidates for elected office here in Illinois.

  15. - Anonymous - Wednesday, Sep 13, 17 @ 1:32 pm:

    Good MM needs a little distraction from his legal work and heavy load in SPF.

  16. - cdog - Wednesday, Sep 13, 17 @ 1:58 pm:

    Madigan engaging “in willful conduct that undermines the organic processes?” Couldn’t be.

    Rauner needs to run his inorganic actions through that test also.

    I find it interesting there is a potential to redefine “vote dilution.” It’s a dirty tactic in they way it was used by Madigan.

    It’s also a dirty tactic that is not available to the average Joe/Joellen.

    Onward Gonzales.

  17. - Balls and strikes - Wednesday, Sep 13, 17 @ 2:03 pm:

    “widely used” Not hardly. Only one person does this and hes’ head of the Democratic party. Always thought it kind of pathetic in a district that is a lock for him he uses “shill” candidates. Poor John Patrick Ryan had to leave town for a month after the state GOP had a fundraiser for him. Too cute by half though Somebody will get in trouble for this someday.

  18. - Whatever - Wednesday, Sep 13, 17 @ 2:10 pm:

    The judge is probably right, that Gonzales has alleged that there is a connection between the Speaker’s official position and some activities that deprived him of his constitutional rights, but actually making that connection won’t be easy. “Color of state law” means he was acting under the (apparent) legal authority of his office. I don’t think you can show that Madigan’s position as a legislator or as speaker gives him any control under state law over “the accounts of Friends, the Democratic Majority Fund, the 13th Ward Organization, and the Democratic Party of Illinois.” You can allege anything, but that doesn’t mean that the allegations are right.

  19. - Oswego Willy - Wednesday, Sep 13, 17 @ 2:15 pm:

    ===It’s a dirty tactic in they way it was used by Madigan.===

    - cdog -,

    I know you’re not ignoring Republicans that used tactics as described, right?

  20. - balls and strikes - Wednesday, Sep 13, 17 @ 2:26 pm:

    Yeah Willy—when you have that much power of the levers of government it is an easy jump to under color of law. Does he really want to have his people defending that which most people don’t know about and probably this is at best scummy and at worst a felony. Why not just play it straight up. And i’m looking for that list of shill Republicans. Or any time they filed fake candidates with hispanic names. This stinks and he got caught.

  21. - cdog - Wednesday, Sep 13, 17 @ 2:28 pm:

    I’m a bleacher-sitter and am not always aware of historical events that you know.

    I would definitely be principled in my analysis, regardless of party, and hope that lawsuits are/were filed to slow-down and discourage this stuff.

    Sham candidates from either side should be labeled and condemned.

  22. - Oswego Willy - Wednesday, Sep 13, 17 @ 2:30 pm:

    - cdog -

    I know, as much as I can, you’re a good soul. That’s why I asked, exactly as I asked.

    No worries.

  23. - walker - Wednesday, Sep 13, 17 @ 2:34 pm:

    ‘”’willful conduct that undermines the organic processes by which candidates are elected”"

    Heckuva broad legal standard. I’m beginning to like it.

    Can we apply it to the many sham “institutes”, sham “news bureaus”, and sham “charitable organizations” who are impacting our elections?

  24. - iggy - Wednesday, Sep 13, 17 @ 3:09 pm:

    MJM borrowed this tactic from the Kennedy clan. It’s a powerful political tool that has been used by one person in this state, to much success.

  25. - ughh... - Wednesday, Sep 13, 17 @ 3:31 pm:

    ===Who decides which candidates are sham candidates, and which are not.===

    if it looks like a duck…

  26. - Anonymous - Wednesday, Sep 13, 17 @ 4:02 pm:

    This is exactly what Jack Franks’ people did to Steve Reick last year in his primary election.

  27. - Michael Westen - Wednesday, Sep 13, 17 @ 5:10 pm:

    I believe a person has a constitutional right to run for any office for any reason they want to run. If I’m a Hispanic and live in the Speaker’s decision and want the Speaker to win and continue to represent me, who is this judge to say I can’t run (for any reason) to help make that happen?

TrackBack URI

Post your comment... And please take a half second to come up with a nickname. It makes following the posts easier for everyone... Thanks

In other words, do your best to be civilized and smart.

* Raoul takes "full responsibility" for "bad" Erika Harold comment, Maze Jackson apologizes to listeners
* *** UPDATED x1 *** Durkin says he doesn't think Illinois "needs to give away the store" to snag Amazon
* Biss tries to explain the Ramirez-Rosa matter
* *** UPDATED x1 *** SUBSCRIBERS ONLY - Legislative candidate announcements
* An argument against assisting the St. Louis Amazon bid
* Why did Lisa Madigan retire?
* Currency exchanges say they want higher fees to boost lagging profits
* DGA tour coverage roundup
* *** UPDATED x1 *** Illinois economy "stuck in neutral"
* The great exodus
* Rauner signs civil asset forfeiture reform bill
* Harold unveils long list of legislator endorsements
* SUBSCRIBERS ONLY - Today's edition of Capitol Fax (use all CAPS in password)
* Yesterday's stories

Visit our advertisers...





* Rauner administration set to increase child car.....
* AG candidate Raoul apologizes for ‘bad characte.....
* Many in Peoria offer to hold door open for outg.....
* Durkin says he doesn't think Illinois “needs to.....
* Rauner's support of St. Louis for Amazon bid 'a.....
* Rauner signs law tightening civil forfeiture ru.....
* Why did Lisa Madigan retire? - The Capitol Fax .....

* Life term reduced for Illinois woman in 4-year-old's death
* University of Illinois at Chicago to create $100M facility
* Authorities: Deadly Bloomington fire was intentionally set
* Seymour woman gets 4 years in boyfriend's stabbing death
* EXCHANGE: Hundreds visit Exelon's nuclear plant in Byron
* Quad City airport using $3.3M from US to replace lighting
* Bloomington zoo's Malayan sun bear euthanized at age 33
* UIS to conduct first responder training with state agency
* Palestinian activist deported to Jordan from Chicago
* Fugitive Chicago police sergeant arrested after 15 years

* AG candidate Raoul apologizes for 'bad characterization' of opponent
* Report: Payments for treatment of addictions, mental illness often denied
* Republican McClure will run against McCann in 50th Senate district
* Republican McClure will run against McCann in the 50th Senate district
* Rep. Drury leaves governor's race to run for attorney general
* Rauner signs revamp of EDGE business tax-credit
* Rauner to lawmakers: Help me balance the budget
* Bernard Schoenburg: Running mates help balance governor tickets
* Statehouse Insider: AFSCME contract suit may not be heard until next year
* Chris Kennedy and running mate bring anti-violence campaign to central Illinois

* The best events in town this week—and beyond
* Illinois Medical District to get largest ambulance garage in Cook County
* United's turnaround wobbles after airline fare war jolts investors
* United's turnaround wobbles after fare war jolts investors
* Centegra turns to layoffs, outsourcing jobs to stop financial bleeding

* LETTERS: Get voter registration going in high school civics classes
* Study: Most states would take a hit from GOP health bill
* Man reported missing from Near West Side
* CTA worker injured after making contact with third rail on North Side
* Ask the Doctors: Child seeks evidence to convince parents to get a dog
* Authorities investigating death of 2-month-old South Side boy
* Woman found dead in bathroom stall 2 days after going to health club
* ROBERT REICH: One way the rich could get richer under Trump
* Pedestrian fatally struck by Metra train in Lisle
* Ben Roethlisberger on Bears QB Mitch Trubisky: ‘Tremendous athlete’

* Police officer fatally shoots deaf man holding pipe in Oklahoma City
* Hurricane Maria makes landfall on Puerto Rico after slamming Dominica
* Hillary Clinton and Stephen Colbert talk Trump, Russia, Putin and chardonnay
* Pedestrian dies after being struck by Metra train Tuesday night in Lisle
* Cops: Woman found dead at suburban health club - two days after entering
* Ben Roethlisberger impressed by Mitch Trubisky after pre-draft workouts
* 25 bodies pulled from collapsed school as rescuers search for survivors of Mexico earthquake
* Bulls projected to be the NBA's worst team this season
* Judge delays decision on whether to lock up convicted Chicago cop

» Palestinian Activist To Be Deported To Jordan From Chicago
» Looking For Analog: Old Button-Mashing Arcades Come Back For A New Generation
» County In Illinois To Use Grant To Aid Endangered Bumblebee
» Canada Could Stop Dealing With Boeing Over Dispute
» Currency Exchanges Pushing Fee Increase
» 3 Big Takeaways On Attorney General Lisa Madigan’s Decision To Not Run For Reelection
» Judge: Sessions Can't Deny Grant Money For Sanctuary Cities
» State Week: Blagojevich Speaks; (Lisa) Madigan & Currie Leaving
» Illinois Attorney General Won't Seek Re-election In 2018
» House Majority Leader Barbara Flynn Currie Won't Run Again

* AG candidate Raoul apologizes for 'bad characterization' of opponent
* Report: Payments for treatment of addictions, mental illness often denied
* E.J. Dionne: The priority is still to save Obamacare
* Over DACA, an acute case of Trump panic syndrome
* Ralph Martire: Illinois needs to make higher education a priority
* Catherine Rampell: A chilling study shows college students hostile toward free speech
* Michael Gerson: The dangerous triumph of tribalism in America
* Republican McClure will run against McCann in 50th Senate district
* Rep. Drury leaves governor's race to run for attorney general
* Marc A. Thiessen: Hillary Clinton still doesn't get 'what happened' in the 2016 election

* At least one shot at Mattoon high school shooting
* Retired educator who taught at Belleville West for three decades dies
* Suspect in custody after shooting at Mattoon High School
* Shooting reported at Mattoon High School
* One person shot at Mattoon High School
* Noon update: Near-record highs, Jersey Mike's opens, and new I-74 bridge work
* It’s almost time for the world to end. Or not, depending on whom you believe.
* Rep. Dave Severin announces bid for re-election
* Lady Bulldogs spike Panthers to extend streak
* Marion man sentenced to 30 years for cocaine offense

* Geneva High School steps up security after rumors of possible shooting threat
* Beekeeping could be come to Elgin next year
* Boxer LaMotta, immortalized in 'Raging Bull,' dies at 95
* Northwest suburban police blotter
* Busse Triangle apartment plan sails through preliminary phase in Mount Prospect

* Indivisible billboard targets Hultgren, Ro...
* Hultgren pleads for continued funding of f...
* 14th District Democratic candidates square...
* Montgomery mayor hosts health care forum a...
* Rep. Hultgren advocates for CHIP reauthori...
* Looking at Fintech through the Legislative...
* Hultgren calls on FEMA to help assess Nort...
* Rep. Randy Hultgren announces 2017 Congres...
* Congressman Randy Hultgren Visits Raue Cen...
* Hultgren pushes for CHIP funding ahead of ...

* All of us should reject the religious test......
* The Return of Criminal Justice Reform - Re......
* Democratic Senators Oppose Rescinding of 2......

* US Sen. Tammy Duckworth pushes for airport......
* Quad City Airport Using $3.3M To Replace L......

* Retired and elderly with the health care in the U.S. we have.
* Lumpen Radio. Chicago’s best low-power FM radio.
* Hitting Left. Last week and Friday’s show.
* Medicare for all? Medicare and more.
* CPS enrollment drop and budget
* Tiny houses for the homeless
* 100-Year-Old Petrified Uniformities Of The Modern Art World vs. The Moral Grandeur Of Majestic Impressionism
* Supreme Court decision one of 6 case studies in latest DR Legal News
* Morning Minute: Consumer Financial Protection Bureau offers guidance on credit following Equifax data breach
* TrackNotes: The Immortal Penny Chenery

* Illinois Awarded Funds to Offer Advanced Training on Detecting Impaired Driving
* Illinois EPA Announces Upcoming Household Hazardous Waste Collection Events
* IEMA Highlights Emergency Preparedness for People with Access and Functional Needs in May - Ready Illinois website offers preparedness tips for people, caregivers
* First Lady Launches Illinois Family Connects
* Governor and Lt. Governor Unveil 2016 Journal of Local Government Shared Service Best Practices

* Project Fi adopting Android One version of Moto X4
* Apple Releases Safari Technology Preview 40 With Bug Fixes and Feature Improvements
* Nest Announces New Alarm System, Smart Doorbell, and Outdoor Cam IQ
* If Face ID ‘fails to impress’, Apple may need to make under-display Touch ID work for 2018 iPhones
* Google brings the $399 Android One Moto X4 to Project Fi (and the U.S.)
* Snapchat’s new partners attach instant apps and games to ads
* PSA: Snapchat Still Notifies You When Someone Screen Records Privately Messaged Snaps on iOS 11

* Nicky Delmonico falling as fast as he rose
* Quiet bats waste Giolito's solid effort
* Shields knows not to take Astros lightly
* Sox Century: Sept. 19, 1917
* Giolito holds his own against Astros
* Quiet bats waste Giolito's solid effort
* Shields knows not to take Astros lightly

Main Menu
Pundit rankings
Subscriber Content
Blagojevich Trial
Updated Posts

September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005


RSS Feed 2.0
Comments RSS 2.0

Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller