Moy v. Cowen

Citation958 F.2d 168
Decision Date14 February 1992
Docket NumberNo. 92-1193,92-1193
PartiesKenneth MOY and Eugene Soule, Plaintiffs-Appellees, v. Richard A. COWEN, et al., Defendants, and Patricia Nied, Intervening Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Burton S. Odelson, Mathias W. Delort, Odelson & Sterk, Evergreen Park, Ill., (argued), for plaintiffs-appellees.

Jan E. Hughes, Asst. Atty. Gen., Office of the Attorney General, Civil Appeals Div. Chicago, Ill., for Cowen, Neal, Murray, Huisman, Johnson, Lanigan, Petrone and Rednour.

Thomas C. Kelleghan, Wheaton, Ill., for Carney, McNamara and Toerpe.

Paul A. Lewis, Alschuler, Putnam, McWethy, Funkey & Lewis, Aurora, Ill. (argued), for Nied.

Before EASTERBROOK and KANNE, Circuit Judges, and SHARP, District Judge. *

PER CURIAM.

Two sections of the Illinois Election Law require candidates for public office to submit their nominating petitions "neatly fastened together in book form ... and the sheets shall then be numbered consecutively." Ill.Rev.Stat. ch. 46 pp 7-10, 10-4. Kenneth Moy submitted petitions for a position on the primary ballot for one of the seats on the DuPage County Board. Patricia Nied, a registered voter in DuPage County, observed that the pages in Moy's package are unnumbered and asked the DuPage County Board of Election Commissioners to deny his request for a place on the ballot. Appellate courts of Illinois disagree about whether a failure to paginate the petition disqualifies a candidate. Compare Jones v. Dodendorf, 190 Ill.App.3d 557, 137 Ill.Dec. 468, 546 N.E.2d 92 (2d Dist.1989) (yes), with Stevenson v. County Officers Electoral Board, 58 Ill.App.3d 24, 15 Ill.Dec. 571, 373 N.E.2d 1043 (3d Dist.1978) (no), with Williams v. Butler, 35 Ill.App.3d 532, 341 N.E.2d 394 (4th Dist.1976) (maybe).

Without waiting for the Board of Election Commissioners to rule on Nied's objection, and without asking the Supreme Court of Illinois to determine what the rule of law in the state is, Moy and a voter in DuPage County filed suit in federal court under 42 U.S.C. § 1983. Relying on Richards v. Lavelle, 620 F.2d 144 (7th Cir.1980), which held that a state may not disqualify a candidate for submitting a nominating petition with too many signatures, Moy argued that it would violate the fourteenth amendment to exclude one who submits an unpaginated petition. He asked the court to issue an injunction directing the Board to place his name on the ballot. The Board responded that as it had yet to act on Nied's objection, it was unprepared to defend the litigation--there may well be no decision adverse to Moy, the Board observed. Cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Greening v. Moran, 953 F.2d 301 (7th Cir.1992); Pincham v. Illinois Judicial Inquiry Board, 872 F.2d 1341 (7th Cir.1989).

The Board's noncommittal stance led Nied to file a petition to intervene. Other parties opposed this, contending that Nied lacks standing. After briefs were exchanged the district judge granted Nied's motion--without mentioning the problem of standing. The court's full explanation is: "To make sure that the objector's position is well-stated, I am going to grant the motion to intervene." After a short argument the district judge issued an injunction, holding that it would violate the Constitution to exclude from the ballot a candidate whose submission is defective because unpaginated. The Board has not appealed. Perhaps it is content to be ordered to do something it would have done anyway.

Construing a state law so as to create a constitutional problem, and then holding the statute unconstitutional in litigation that may well not be adversarial, is highly problematic. If the Board had appealed, we would have been required to decide whether the court should have abstained, whether to certify the question of state law to the Supreme Court of Illinois, whether there is a constitutional flaw if Jones v. Dodendorf has understood the laws aright. Seen as a "sanction" for failure to paginate papers already on file, exclusion from the ballot looks draconian. But viewed ex ante, the requirement imposes no significant burden on candidates and aids election officials in coping with the flux of paper. Moy concedes that a state may require pagination, making it hard to see the objection to enforcing the rule by the usual method: denying the applications of those who have not complied. At oral argument, Moy denied that the Board could exclude him from the ballot even if he were asked to paginate the petition after its submission and replied with a Bronx cheer. Yet no other sanction is available; election officials do not fine applicants, and it would be silly to put Moy's name on the ballot upside down as a compromise. We suppose a court could dismiss a case or enter a default judgment if a litigant refused to number his papers. If petitions submitted one minute after the deadline may be turned down, cf. United States v. Locke, 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985), why not petitions that do not comply with simple and beneficial rules?

But the Board did not appeal. Only Nied appealed. Her effort to upset the judgment presents the question what she is doing here in the first place. The district judge did not identify the rule authorizing her intervention, and her position does not fit neatly within Fed.R.Civ.P. 24. Courts properly hesitate before allowing intervention that may strip public...

To continue reading

Request your trial
9 cases
  • Grove Fresh Distributors, Inc. v. John Labatt Ltd.
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 9, 1995
    ...warranted by existing law. It was, in fact, precluded by it. A person who brings an appeal must have standing to do so. Moy v. Cowen, 958 F.2d 168, 170 (7th Cir.1992). It is a wellsettled rule that "only parties to a lawsuit, or those that properly become parties, may appeal an adverse judg......
  • Kuna v. Illinois State Bd. of Elections
    • United States
    • U.S. District Court — Southern District of Illinois
    • September 26, 2011
    ...that the State Defendants violated his “immunity” by giving Raymond True, a named defendant in this suit, “standing,” see, Moy v. Cowen, 958 F.2d 168 (7th Cir.1992). The plaintiff further claims that these defendants have somehow violated California statutory and common law.2 Plaintiff also......
  • Cable v. Ivy Tech State College
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 28, 1999
    ...of the estate and by its representative. This is not a case of a non-party arriving late in the game. In contrast, Moy v. Cowen, 958 F.2d 168, 170 (7th Cir. 1992), involved an appeal brought by a person who did not have standing at the trial court and therefore could not bring an appeal. As......
  • Mueller v. Reich
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 12, 1995
    ...from a judgment in its favor merely because it would like the unsuccessful plaintiff to prevail against someone else. Moy v. Cowen, 958 F.2d 168 (7th Cir.1992) (per curiam). The cross-appeal is all the more weird because the Department of Labor is empowered to sue to enforce the Fair Labor ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT