Shakman v. Democratic Organization of Cook County

• Decision Date: 06 November 1969
• Docket Number: No. 69 C 2145.,69 C 2145.
• Citation: 310 F. Supp. 1398
• Parties: Michael L. SHAKMAN and Paul M. Lurie, on behalf of themselves and all others similarly situated, Plaintiffs, v. The DEMOCRATIC ORGANIZATION OF COOK COUNTY, a corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

310 F. Supp. 1398

Michael L. SHAKMAN and Paul M. Lurie, on behalf of themselves and all others similarly situated, Plaintiffs, v. The DEMOCRATIC ORGANIZATION OF COOK COUNTY, a corporation, et al., Defendants.

No. 69 C 2145.

United States District Court, N. D. Illinois, E. D.

November 6, 1969.

Robert Plotkin, C. Richard Johnson, and Roger R. Fross, Chicago, Ill., for plaintiffs.

Raymond F. Simon, Corp. Counsel, Marvin E. Aspen, Asst. Corp. Counsel, Edward V. Hanrahan, State's Atty., and George J. Schaller, Chicago, Ill., for defendants.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Plaintiffs' Preliminary Motions

Defendants' Motion to Dismiss

This is a class action which alleges deprivations of freedoms of speech and association as well as due process and equal protection of the law in violation of the First, Fifth and Fourteenth Amendments to the United States Constitution and of certain civil rights statutes, 42 U.S.C. §§ 1983, 1985, 1986, 1988, arising from an alleged political patronage system. Plaintiff Shakman is an independent (not endorsed by any political party) candidate for Delegate to the Illinois Constitutional Convention. Plaintiff Lurie is one of his supporters. Defendants are Democratic party organizations and various officials of those organizations, the City of Chicago, and various officials of the City and of Cook County, Illinois.

In this six count complaint, Counts I and IV are brought by Shakman as a candidate for public office, Counts II and V are brought by both plaintiffs as voters, and Counts III and VI are brought by both plaintiffs as taxpayers. Counts IV, V, and VI differ from Counts I, II, and III respectively in alleging conspiracy to commit the acts complained of in the lower numbered counts. The various counts are also brought on behalf of all others similarly situated. Plaintiffs seek declaratory and injunctive relief plus compensatory and exemplary damages.

All defendants have filed multifaceted motions to dismiss this complaint. Some of the reasons set forth by defendants are without merit. Plaintiffs have not inexcusably delayed instituting this action and are not barred by laches. Loverich v. Warner Co., 118 F.2d 690, 693 (3d Cir. 1941). Similarly, the complaint cannot be dismissed because the motion for preliminary injunction was not accompanied by a bond. Under the federal rules, security is not required unless and until the equitable relief is to be granted. Rule 65(c), F.R. Civ.P.; 7 Moore's Federal Practice Ch. 65, ¶ 65.09, at 1656 (1968).

A considerably more serious issue is raised by defendants when they suggest that the subject matter of this action involves a political question which, therefore, renders the lawsuit non-justiciable. The non-justiciability of political questions is a doctrine which extends back to Marbury v. Madison, 1 Cranch (5 U.S.) 137, 164-166 (1803). Further, there can be no doubt that this complaint involves political matters. Plaintiffs have alleged that defendants control and exert coercion over patronage employees, who are defined as those persons employed by Chicago and Cook County governmental entities, hired on the basis of political support and not protected by civil service or otherwise against arbitrary discharge from employment. The complaint further alleges that these employees are required to take time off from their jobs in order to perform political work, for which they are paid with public funds. As a result of this alleged misuse of public funds and personnel, the rights of the Democratic patronage employees are allegedly infringed in that they may not associate with plaintiff candidate, speak on his behalf, vote freely, or refuse to support defendant political organizations. Further alleged unlawful results of the patronage system are that plaintiff candidate is deprived of the right to associate with these employees, that plaintiff cannot express himself through patronage employees, that plaintiff's supporters cannot have their votes cast effectively, that the votes of plaintiff and his supporters are debased, that the election in which plaintiff is running will not be determined by votes freely cast, that plaintiff is forced to support political organizations, policies, programs, and candidates to which he is opposed, and that the electoral process is not rudimentarily fair or free of substantial political interference. Complaint, ¶ 38.

That these allegations are obviously politically oriented does not automatically resolve the motion to dismiss for if the political question doctrine is of long duration, it is also of increasingly limited scope. In recent years, the doctrine has been considerably narrowed. Thus the judiciary has considered politically tainted issues of reapportionment, e. g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962), petitioning for a place on a ballot, e. g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1969), ballot position, e. g., Weisberg v. Powell, 417 F.2d 388 (7th Cir. 1969), and discrimination in party primaries, e. g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). At the same time, courts have maintained a reluctance to interfere with the strictly internal operations of a political party. Irish v. Democratic-Farmer-Labor Party of Minnesota, 399 F.2d 119, 120 (8th Cir. 1968); Lynch v. Torquato, 343 F.2d 370 (3d Cir. 1965).

A determination as to the justiciability of the political issues in this case in the light of the standards set forth in Baker v. Carr, 369 U.S. 186, 209, 217, 226, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), need not be made, however, because plaintiffs lack the requisite standing to litigate this controversy. Assuming for the moment that plaintiff's complaint is well pleaded, which assumption is questionable in view of the vague conclusory allegations, and further accepting for the purposes of this motion similar allegations that thousands of patronage employees are being coerced into making involuntary contributions of time and money and that they are being deprived of their right to associate with, work for, contribute money to and vote for plaintiff candidate, (Complaint, ¶ 39) the proper parties to assert that those deprivations amount to unlawful violations of their civil rights are the patronage employees, not plaintiff. Cf. Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 87 L.Ed. 603 (1943). Plaintiff has asserted that "these employees are not free to assert themselves since they believe that to do so will lead to the loss of their patronage jobs or other punishment in said jobs." Complaint, ¶ 39. Nevertheless, the issues presented are of such a serious nature and have a potential impact across the country in local, state, and national affairs, that we cannot allow self-appointed representatives of other persons federal rights, no matter how decent their intentions, to attempt to remedy the alleged wrongdoing. If the patronage system does concern upwards of 30,000 persons (Complaint, ¶ 27), has existed for "many years," (Id.) and is as coercive and obnoxious as is claimed, there should be some patronage employees willing and able to assert their rights for themselves and their class. Any other rule would risk improper representation and prosecution of the claims of these employees to say nothing of creating raising questions concerning the binding nature of a decision affecting persons not before the court. The rule prohibiting reliance on another's constitutional rights is admittedly a rule of self-restraint which may be disregarded in unique situations where, for instance, the action of a state court might result in a denial of constitutional rights to the absent party, Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). In the instant case, we know of no similar impediment to the attempted enforcement of an aggrieved party's civil rights.

Of course, unlike the Tileston case, plaintiffs have alleged deprivations of their own rights. Compare, Tileston v. Ullman...