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A look at Sam McCann’s federal lawsuit

Wednesday, May 2, 2018

[This post has been updated to remove a weird coding error on my part.]

* Natasha

He just announced he’s running as a third party candidate for governor and now state Sen. Sam McCann has filed a lawsuit, with the help of Local 150, against the Illinois Republican Party, Senate Minority Leader Bill Brady and others. The lawsuit charges that he was inappropriately booted from the Republican Senate caucus after he announced his candidacy as a third party candidate for governor. Brady and others have said hey, if McCann is running as a third party candidate then he doesn’t belong in the GOP caucus. And they cut off his resources.

* Let’s have a look-see. The lawsuit quotes the Illinois Constitution

Each house shall determine the rules of its proceedings, judge the elections, returns and qualifications of its members and choose its officers. No member shall be expelled by either house, except by a vote of two-thirds of the members elected to that house.

* And then

Senator John Cullerton of the 6th Senate District of Illinois was first elected as Senate President by a majority of the members of the Senate and began serving in that capacity in 2009. Senator Bill Brady of the 44th Senate District of Illinois was elected Minority Leader to replace his predecessor in 2017. Plaintiff McCann never affirmatively voted for Senate President Cullerton during his time in the Senate.

A Senator, therefore, by the very nature of the Senate Rules, is either a member of the majority caucus, or, if not, a member of the minority caucus. Plaintiff McCann, for purposes of the Senate Rules, is a member of the minority caucus.

Maybe. There’s nothing stopping an independent from refusing to caucus with either party. Former Sen. James Meeks was first elected as an indy, but he chose to caucus with the Dems. He didn’t have to. But that was, again, his choice. McCann alleges he wasn’t offered a choice. He was just given the boot.

* The suit then mentions the continuing appropriation passed in 2014 which guaranteed funding for the operation of the General Assembly, which the suit claims “underscores the vital role the availability of significant taxpayer-funded resources plays in an elected representatives effective representation of his or his constituents.”

It notes that, by statute, the Senate President and the Minority Leader evenly split a pot of money for their caucus operations. They each received $5,295,074 in the new budget for operations. McCann, like all Senators, receives $73,000 to spend on district stuff.

* The suit also points out that McCann was elected as a Republican twice, details his fight with Gov. Rauner over the AFSCME bill and his resulting Rauner-funded primary fight, and then offers this explanation

Due to what Plaintiff McCann saw as a continuous attack on traditional conservative values by Rauner’s Republican Party—including the availability of state-funded abortions, the ability for transgender residents to alter their birth certificates, attacks on working people, and turning Illinois into a “sanctuary state” for illegal immigrants—and facing the prospect of a third consecutive Republican primary opponent, on December 4, 2016, Plaintiff McCann announced that he would not seek the Republican nomination for the 50th Senate District. Rather, Plaintiff McCann decided to explore running for Governor of Illinois.

* Then, on the same day he announced as a third party candidate for governor, McCann alleges this

On April 19, 2018, Defendant Brady, in his capacity as Minority Leader of the Senate’s minority caucus and leader of the Illinois State Senate Republican Caucus, without conducting a hearing or other proceeding, expelled Plaintiff McCann from the Illinois State Senate’ minority caucus and the Illinois Senate Republican Caucus.

On April 19, 2018, Defendant Brady, in his capacity as Minority Leader of the Senate’s minority caucus and leader of the Illinois State Senate Republican Caucus, without conducting a hearing or other proceeding, denied Plaintiff McCann access to material, taxpayer- funded legislative operational resources required for him to fulfill his duties to his constituents as the duly elected Senator of the 50th Senate District.

Brady also announced that he had accepted Sen. McCann’s proffered resignation from the Senate GOP caucus, a claim that McCann flatly denied at the time and still does today.

Interestingly enough, Sen. McCann claims to have “genuine concerns regarding what little taxpayer funds remain accessible to him; specifically, funds designated for use at district offices for payment of rent, utilities, and the like.”

* His conclusion of Count One

Plaintiff McCann’s participation in the minority caucus, and access to the taxpayer- funded legislative resources—which are available to every other member of the Senate—are vital to his ability to represent effectively the constituents of the 50th Senate District.

The First Amendment protects against State prohibition of political speech and, conversely, State punishment or penalty for the exercise of free speech rights, especially where the State’s action infringes upon the political speech of a duly elected legislator in his capacity as such.

Therefore, Defendants Brady, et al., in their official capacities, unconstitutionally infringed upon Plaintiff McCann’s right to freedom of speech under the First Amendment to the United States Constitution.

* Count Two basically restates all that with an allegation that the defendants violated his 1st Amendment right to freely associate

Defendants Brady, et al., in their official capacities, unconstitutionally infringed upon Plaintiff McCann’s freedom of association under the First Amendment and punished him for the exercise of his associational rights when it expelled him from the Illinois State Senate’s minority caucus and the Illinois Senate Republican Caucus, and denied him access to material and taxpayer-funded resources required for him to fulfill his duties as the duly elected Senator of the 50th Senate District

* Count Three alleges violations of due process rights under the 14th Amendment

No elected representative of the people may be barred from participation in a forum to which he or she was elected for misconduct, no matter how egregious, without a hearing.

Defendant Brady, et al., in their official capacities, unconstitutionally expelled Plaintiff McCann without a prior hearing in violation of the Due Process Clause of the Fourteenth Amendment.

* Count Four alleges a 14th Amendment “equal protections clause” violation

By depriving Plaintiff McCann of the opportunity to participate in the minority caucus and the Illinois State Senate Republican Caucus where such participation is necessary for Plaintiff McCann to effectively fulfill his duties to represent the voters of the 50th Senate District, Defendants Brady, et al. created two classes of voters: one class consisting those citizens whose duly elected representatives could effectively and fully participate in the legislative process, and another whose Senator is only allowed to participate to a severely limited degree.

By denying Plaintiff McCann the vital taxpayer-funded resources necessary for Plaintiff McCann to effectively fulfill his duties to represent the voters of the 50th Senate District, Defendants Brady, et al., created two classes of voters: one class consisting those citizens whose duly elected representatives could effectively and fully participate in the legislative process, and another whose Senator is only allowed to participate to a severely limited degree. Defendants Brady, et al., in their official capacities, unconstitutionally deprived Plaintiff McCann’s constituents of Equal Protection of the law in violation of the Equal Protection Clause of the Fourteenth Amendment.

* And we’re back to the 1st Amendment for Count Five

The First Amendment protects against State prohibition of political speech and association and, conversely, State punishment or penalty for the exercise of free speech or associational rights, especially where the State’s action infringes upon the political speech or association of a duly elected legislator in his capacity as such.

Defendants, while acting under color of state law, violated Plaintiff McCann’s clearly established right against retaliation in violation of the First Amendment because Defendants’ decision to deprive minority caucus resources and/or deprive access to minority caucus and republican caucus participation was motivated at least in part by Plaintiff’s constitutionally protected speech and associational rights.

* Also of note, if you check the list of attorneys at the bottom, you’ll see they’re all with Local 150 of the Operating Engineers Union. And it’s a very long list. They have a ton of attorneys over there.

And, of course, McCann mentions the incident of being denied use of the Senate Republicans’ photographer.

- Posted by Rich Miller        

17 Comments
  1. - Oswego Willy - Wednesday, May 2, 18 @ 1:27 pm:

    The free messaging and the press drops, if McCann can get in that ballot, was it worth being “Lee A. Daniels” petty?

    1) Let McCann have the option of bill analysis and the functions of what is needed for 50 or so days left of a regular legislative session.

    2) Can’t physically attend closed door (they all are, aren’t they?) GOP Caucus meetings dealing with strategies.

    3) Access to copiers, photographers, printing services, and the option to layout, formatting, and state paid mailings within his own office allotment, as per every member.

    For the love of Pete, why make McCann a martyr? Why make McCann a real option for voters who think Rauner let down pro-life, pro-2A, central and downstate Illinoisans?

    And I’m still not over what McCann did to Radogno and I’m saying these ridiculous options.

    This is helping McCann, no matter the outcome of this lawsuit.


  2. - Mr. K. - Wednesday, May 2, 18 @ 1:29 pm:

    I’ve never seen ‘Let’s Have a look-see’ so many times in a single page.

    That’s amazing.


  3. - Rich Miller - Wednesday, May 2, 18 @ 1:34 pm:

    Thanks, Mr. K. Obvious coding error on my part. lol


  4. - Retired Educator - Wednesday, May 2, 18 @ 1:35 pm:

    It seems like MaCann has a case. The powers that think they are overstepped their boundaries. They pulled the benefits, and I think there will be a quick ruling that McCann has a right to represent his constituents. The case may last a long time but the peoples right to representation should take precedent.


  5. - Jimmy87 - Wednesday, May 2, 18 @ 2:06 pm:

    Article IV, Section 12 of the Illinois Constitution (legislative immunity) is pretty clear: “A member shall not be held to answer before any other tribunal for any speech or debate, written or oral, in either house.”

    The case could be made that Brady’s actions were tantamount to speech; in fact, they’re the same First Amendment claims made by McCann - association and speech.


  6. - Norseman - Wednesday, May 2, 18 @ 2:08 pm:

    This will get Sam some publicity and nothing else. It’s the wrong venue and his arguments are rather strained. The fed court is not going to rule on this state issue. I can’t help but think that any court that would even discuss the issue would note that Sam has an office allowance to provide for staff help.


  7. - m - Wednesday, May 2, 18 @ 2:25 pm:

    The level of insanity in this suit is astounding. He was not “expelled by either house”, he is still a Senator.

    What exactly constitutes “material, taxpayer- funded legislative operational resources” to “effectively fulfill his duties to represent the voters”? Because he still has the ability to vote, the ability to read bills, the ability to file bills, a district office budget, a full time staffer, access to LRU, LPU, LRB, etc. etc.

    I don’t know how good it makes him look to say that he can’t represent his constituents because he doesn’t have a photographer, someone to read bills for him, someone to tell him how to write bills, and someone to write his quotes for him.

    I doubt any constituents would say those are necessary for true representation. In fact most would probably be upset that their money is being spent on those things for anyone.

    The 1st amendment stuff is equally looney. No on stopped him from speaking, or acting in protected ways (which in this case both amount to running for gov).

    Not to forget that he’s the only one saying that he was expelled.


  8. - Cool Papa Bell - Wednesday, May 2, 18 @ 2:26 pm:

    If Sam can get on the ballot the first ad writes itself.

    So silly to cut him off like this so he can turn around to a large block of disaffected voters and say “I told you so”. R’s are just backing up what McCann will be selling to a couple hundred thousand voters in downstate.


  9. - Reality - Wednesday, May 2, 18 @ 2:44 pm:

    Once again, local 150 doing all the work for organized labor. These guys are everywhere.


  10. - Sue - Wednesday, May 2, 18 @ 2:58 pm:

    Sure Local 150 really wants McCann to be our next Governor. Madigan ‘s fingerprints appear to be all over this sleazy action. But that’s my opinion


  11. - cdog - Wednesday, May 2, 18 @ 3:03 pm:

    Good for McCann. The two-party power-paradigm is obviously abusing the $10m taxpayers have graciously allowed them for administering their duties.

    So, McCann is my Senator. Am I supposed to call Brady to discuss my constituent-based issue?

    We’ll see how that goes. Maybe I need to join the lawsuit. (ha/not ha)


  12. - VanillaMan - Wednesday, May 2, 18 @ 3:07 pm:

    ILGOP just keeps giving McCann free publicity as a victim of Rauner. ILGOP isn’t being very smart.


  13. - anon - Wednesday, May 2, 18 @ 3:23 pm:

    McCann says that removal from the caucus violated McCann’s right to associate with the caucus? Don’t the other members have a right not to associate with McCann?


  14. - JoanP - Wednesday, May 2, 18 @ 3:55 pm:

    They don’t need lawyers. They need a proofreader.

    “Violation of Freedom of the Due Process Clause the First Amendment to the Unites States Constitution” - let’s play “How many mistakes can you find?”

    They seem to have invented a new country, the “Unites States” (used several times in the complaint). Not to mention that the due process clause is in the Fourteenth Amendment, not the First.


  15. - NorthsideNoMore - Wednesday, May 2, 18 @ 5:01 pm:

    Wondering Question to all you legal beagles 14th due process question? Does he have a right to DP in the club environment that is a caucus?


  16. - wordslinger - Wednesday, May 2, 18 @ 6:53 pm:

    Swell of Brady to give McCann a hook for media coverage during his petition drive. Not very smart though.


  17. - SaulGoodman - Wednesday, May 2, 18 @ 6:57 pm:

    The biggest question here - at least to me - is what someone who isn’t a Dem or Repub caucus member supposed to do? The Caucuses get state dollars to staff the caucus. Does someone have to join one of the caucuses to get similar resources?


Sorry, comments for this post are now closed.


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