* Press release…

2016 MADIGAN PRIMARY OPPONENT’S LAWSUIT TO CONTINUE AGAINST MADIGAN AND HIS MINIONS

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.