Bacon v. Holzman, No. 67 C 177.

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: William R. Ming, Jr., Stanley Kusper, Chicago, Ill., for defendants
• Citation: 264 F. Supp. 120
• Parties: Warren BACON et al., Plaintiffs, v. Sidney T. HOLZMAN et al., Defendants.
• Decision Date: 17 February 1967
• Docket Number: No. 67 C 177.

264 F. Supp. 120

Warren BACON et al., Plaintiffs,
v.
Sidney T. HOLZMAN et al., Defendants.

No. 67 C 177.

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

February 17, 1967.

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Harry Golter, David Long, Chicago, Ill., for plaintiffs

William R. Ming, Jr., Stanley Kusper, Chicago, Ill., for defendants.

MEMORANDUM OPINION

MAROVITZ, District Judge.

This is a class action brought to restrain the enforcement, operation and execution of the Illinois statutes relating to the election of aldermanic candidates for the City of Chicago.

The plaintiffs are in two classes. One class consists of candidates who were denied places on the ballot for the ensuing February 28, 1967 election by the defendants, members of the Chicago Board of Election Commissioners. Assertedly, they all have submitted timely nomination petitions and other forms and affidavits requisite to being placed on the ballot as candidates for alderman in the aforesaid election. The other class consists of certain allegedly qualified voters in Chicago who have signed nominating petitions for certain aldermanic candidates in their respective wards, and who would vote for said candidates, had the latter not been ruled off the ballot by the defendants herein.

Charging that they have been denied the protections of the due process and equal protection clauses of the Fourteenth Amendment, plaintiffs challenge the allegedly arbitrary, capricious, and discriminatory manner in which the names of the aforesaid candidates were stricken from the ballot. Under the Fourteenth Amendment, Title 28 U.S.C. § 1343, Title 42 U.S.C. § 1983, and Title 28 U.S.C. §§ 2201 and 2202, they seek a preliminary injunction enjoining defendants from printing ballots lacking the names of the plaintiff candidates and certain other candidates, from distributing absentee ballots without said names, and from carrying out the election on February 28, 1967, pending a determination of the questions raised herein. They also seek a mandatory injunction to place the names of the plaintiff candidates, and certain other candidates on the aldermanic ballot. In

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Count II, under 28 U.S.C. § 1343, and 42 U.S.C. §§ 1983 and 1985(3) each plaintiff further seeks a judgment of $100,000 against the defendants for the actions heretofore charged

In a memorandum opinion rendered on February 7, 1967, this Court denied plaintiffs' request to convene a statutory three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, to hear these proceedings. The Seventh Circuit sustained that ruling on February 15, 1967, by denying plaintiffs' motion for a writ of mandamus. Our decision on that motion determined that by their petition, plaintiffs raised no substantial challenge to the constitutionality of the disputed Election Code provisions, Ill.Rev.Stat. c. 46, Secs. 10-4, 10-10. However, we reserved plaintiffs' right to pursue their allegations based upon the alleged arbitrary, capricious, and discriminatory enforcement of the said statutes.

Hence, the major substantive issue framed by the pleadings is this: Did the defendants deny the plaintiff candidates a place on the ballot for the forthcoming aldermanic election by means of a hearing procedure so arbitrary, capricious, and discriminatory as to be lacking in the requisite protections assured by the due process clause of the Fourteenth Amendment.

Although plaintiffs allege that defendants' actions violated the equal protection clause of the Fourteenth Amendment, they adduced no evidence during the course of the three day hearing before this Court to warrant further consideration of that issue here.

The landmark case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that it was no longer necessary in prosecuting an action under Sec. 1983, to allege a specific intent to deprive a person of a federal right.¹ But even so, we have seen no evidence, nor have plaintiffs argued persuasively that the equal protection clause has any application here. In his closing statement, plaintiffs' counsel dealt almost exclusively with the due process arguments. Accordingly, the remainder of this decision will deal exclusively with the due process arguments.

Initially we must consider whether this Court is a proper forum for this action.

Section 1983 of Title 42, provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

In order to sustain the burden of establishing a proper jurisdictional foundation under Section 1983, or Section 1343, plaintiffs must show that the deprivation of the right to become a candidate for alderman in the city of Chicago is a right or privilege secured by the constitution and laws of the United States.

However, it has been held that the right to become a candidate for state office is a right or privilege of state citizenship, and not a federally guaranteed right. Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 88 L.Ed. 497 (1943). Snowden further affirmed the view that "an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause." 321 U.S. at 7, 64 S.Ct. at 400; Taylor & Marshall v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187.

The Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), overturned the historical

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notion that the federal courts could not inquire into apportionment systems for state legislatures. It held that a claim asserted under the Equal Protection Clause challenging the constitutionality of state apportionment of legislative seats on the ground that it debased and diluted the value of an individual vote, presented a justiciable issue cognizable before the federal courts. Since the present case under our ruling above, involves only the due process clause, as distinguished from the equal protection clause, the Baker case and its progeny² technically have no application to the issue at bar. However, Baker pointed out that in Taylor & Marshall v. Beckham, 178 U.S. 548, 20 S.Ct. 890, the Supreme Court held on the merits that defeated candidates in the Kentucky gubernatorial race, had suffered no deprivation of property without due process of law. And in a footnote the Court observed

"No holding to the contrary is to be found in * * * Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497."

It appears to this Court that Snowden did not discuss the merits of the due process issue, but concluded as a matter of law that the right to hold state office is not a federal right, but only a concomitant of state citizenship. The plain language of Snowden has not been overruled. The apportionment cases do not do so even implicitly. It is clear that Snowden did not go into the merits of the due process allegation, even though the Supreme Court noted in Baker that the holding in Snowden merely reaffirmed Taylor & Marshall v. Beckham, which did go into the substance of that issue.

Therefore in our judgment, the last clear statement of the law on this issue is in Snowden.

Plaintiffs suggest that the recent case of Bond v. Floyd, 87 S.Ct. 339 (1966), furthers the argument that the right to hold state office is a federal right. In that case, a duly elected representative to the Georgia House of Representatives was excluded from membership in that body because of his statements, and statements to which he subscribed, criticizing the Federal Government's policy in Viet Nam, and the operation of the Selective Service laws. The Supreme Court held that Bond's disqualification because of his statements, violated the free speech provisions of the First Amendment as applied to the states through the Fourteenth Amendment, and thereby deprived him of his federally guaranteed right to free speech. In so holding, the Supreme Court was not holding that Bond was deprived of his federally guaranteed right to hold state office, but that his state right to hold state office was being denied because of an unconstitutional restraint upon his federal right of free speech, perpetuated under color of state law. We submit that the Bond case does nothing, as an explicit statement of the law, to undercut the vitality of Snowden.

All that might be said is that the drift of recent Supreme Court decisions seemingly could lead one to infer that sometime in the future, the Snowden position on the status of holding state office may be revised. As a lower court in the federal system, we would be presumptuous to hold in opposition to the express language of the Snowden case. Thus it is our opinion that plaintiffs cannot state a claim under Sec. 1983 since they assert a deprivation of a right, which under Snowden, is derived only from their state citizenship.

Nevertheless, because we heard considerable evidence bearing on the due process issue, we will proceed to elaborate our views upon the merits of the instant

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controversy. Although our procedure may be unorthodox and our further remarks only dictum, the manner in which the Board of Election Commissioners functions is of great importance to the public and to the structure of our democratic system. Since we heard voluminous evidence in this case, and since the issues are important, we wish our views to be known

Plaintiffs have challenged the administrative procedure by which the Board makes its determinations as violative of the very essence of due process. It should be stated at the outset, however, that the Illinois...