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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?

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