Dempsey v. Johnson

• Decision Date: 10 November 2016
• Docket Number: No. 1–15–3377.,1–15–3377.
• Citation: 69 N.E.3d 236,2016 IL App (1st) 153377
• Parties: Princess DEMPSEY, Plaintiff–Appellant, v. Maxine JOHNSON, individually and in her official capacity as Clerk of the Village of Broadview, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 153377

69 N.E.3d 236

Princess DEMPSEY, Plaintiff–Appellant,

v.Maxine JOHNSON, individually and in her official capacity as Clerk of the Village of Broadview, Defendant–Appellee.

No. 1–15–3377.

Appellate Court of Illinois, First District, Sixth Division.

Nov. 10, 2016.

Doug E. Ibendahl, of Chicago, for appellant.

Brian P. Gainer, Garrett L. Boehm, Jr., and Joel Brenord, of Johnson & Bell, Ltd., of Chicago, for appellee.

OPINION

Presiding Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Princess Dempsey, filed the instant action against the defendant, Maxine Johnson, individually and in her official capacity as clerk of the Village of Broadview (Village), seeking redress for alleged violations of her state and federal constitutional rights and rights under the Election Code (10 ILCS 5/1–1 et seq. (West 2012)). She appeals the circuit court's order dismissing her two-count third-amended complaint (amended complaint) pursuant to section 2–615 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615 (West 2012) ). For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

¶ 2 The allegations of the plaintiff's complaint may be summarized as follows. The plaintiff was an independent candidate who sought to be elected to the office of Village president in the April 9, 2013, consolidated election. Judy B. Brown–Marino, whose party-affiliation is not alleged in the complaint, was a "direct opponent" of the plaintiff. Johnson, a democrat, served as Village clerk and was "allied with" Brown–Marino. The amended complaint alleges that Johnson, as Village clerk, was vested with certain "statutory powers and duties" regarding the 2013 consolidated election. For example, Johnson's "statutorily mandated duties" included certifying the names of candidates to be included on the ballot, issuing amended certifications, and publishing notices about the election. See 10 ILCS 5/7–60.1, 10–15 (West 2012). Johnson was also required to serve as a member of the Village's Municipal Officers Electoral Board (electoral board) and "pass upon objections to the nominations of candidates."

¶ 3 On December 26, 2012, the plaintiff filed her nominating petitions in the Village clerk's office. Johnson, through her election-related duties as Village clerk, had actual knowledge of the plaintiff's political affiliation and knew that she was running against Brown–Marino. Allegedly, Johnson "took the extraordinary step" of removing the plaintiff's nominating petitions from her office in the Village and took them home to "assist" Brown–Marino in challenging the sufficiency of the petitions. Thereafter, Brown–Marino filed an objection to the plaintiff's nominating petitions seeking to strike the plaintiff's name from the ballot as a candidate for the office of Village president.

¶ 4 A hearing on the objection was held before the electoral board. See 10 ILCS 5/10–10 (West 2012). At the hearing, the plaintiff sought to "disqualify" Johnson as a member of the electoral board on grounds that she was biased, but the board voted 2–1 against the plaintiff's request. The plaintiff also sought, unsuccessfully, to subpoena Johnson to testify regarding "irregularities" in the processing of her nominating petitions. On February 14, 2013, following a hearing, the electoral board determined that the plaintiff's nominating petitions were insufficient under the Election Code and ordered the plaintiff's name to be removed from the ballot. The complaint does not provide the ground or grounds upon which the electoral board found the plaintiff's nominating petitions to be "insufficient." The complaint does allege, however, that Johnson voted in favor of striking the plaintiff's name from the ballot in an effort to "destroy" her candidacy.

¶ 5 Thereafter, the plaintiff filed a petition for judicial review in the circuit court of Cook County. See 10 ILCS 5/10–10.1 (West 2012). On March 7, 2013, the circuit court set aside the electoral board's decision and ordered the plaintiff's name to be printed on the ballot as an independent candidate in the April 9, 2013, consolidated election for the office of Village president.

¶ 6 At approximately 8 p.m. on April 8, 2013, the day before the consolidated election, Johnson disseminated a pre-recorded message ("robo-call") to all registered voters in the Village. In the robo-call, Johnson identified herself as the Village clerk and "official electoral officer" and falsely stated that: the plaintiff was not a legitimate candidate; the plaintiff had been officially removed from the ballot; and any votes cast in the plaintiff's favor would be a "lost vote." The plaintiff states that Johnson used Village resources and personnel, including its "reverse 911 system" to robo-call residents of the Village and that she acted willfully and wantonly in communicating false information to the voters. She asserts that, despite the circuit court's order, Johnson's robo-call "communicated an amended certification" and effectively removed her name from the ballot. The plaintiff further alleges that Johnson treated her differently than similarly situated candidates in the consolidated election and that Johnson's discriminatory conduct was motivated solely by "political animus"—namely, the plaintiff's "political association" as an independent candidate. The plaintiff claims that Johnson "destroyed" her candidacy, suppressed votes in her favor, and caused her to lose the election.

¶ 7 On July 23, 2015, the plaintiff filed her two-count amended complaint. Count I of her amended complaint is brought under section 29–17 of the Election Code (10 ILCS 5/29–17 (West 2012) ), which provides a cause of action for the deprivation of state and federal constitutional rights relating to elections. She claims that Johnson: (1) deprived her of her right to freedom of association by retaliating against her for her political affiliation as an independent candidate (see U.S. Const. amend. I ; Ill. Const. 1970, art. III, § 3 ); (2) violated her right to equal protection of law by treating her differently than all other candidates in the consolidated election (see U.S. Const. amend. XIV ; Ill. Const.1970, art. I, § 2 ); and (3) violated section 9–25.1(b) of the Election Code (10 ILCS 5/9–25.1(b) (West 2012)) by using public funds to urge electors to vote against her. Count II of her amended complaint contains the same allegations as count I but is brought under section 1983 of the federal Civil Rights Act (42 U.S.C. § 1983 (2012) ). It alleges that Johnson violated her (1) first amendment right to freedom of association, and (2) fourteenth amendment right to equal protection of law.

¶ 8 On August 12, 2015, Johnson filed a combined motion to dismiss the plaintiff's amended complaint. See 735 ILCS 5/2–619.1 (West 2014). She contended that, pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2014) ), the plaintiff's amended complaint failed to state a claim because, among other reasons, it did not "identify any fundamental right of which [the plaintiff] was actually deprived." Johnson also argued that the allegations failed to establish that the "robo-call actually deprived [the] [p]laintiff of any civil rights" since the plaintiff's name remained on the ballot and voters had the opportunity to vote in her favor. Second, Johnson asserted that the amended complaint should be dismissed pursuant to section 2–619 of the Code (735 ILCS 5/2–619 (West 2014) ) as the plaintiff's claims are barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1–101 et seq. (West 2012)).

¶ 9 On October 23, 2015, after the matter was fully briefed, the circuit court entered a written order granting Johnson's motion to dismiss the complaint with prejudice for failure to state a claim. See 735 ILCS 5/2–615 (West 2014). This timely appeal followed.

¶ 10 Johnson's combined motion to dismiss was brought pursuant to section 2–619.1 of the Code which permits a party to move for dismissal under both sections 2–615 and 2–619 of the Code. 735 ILCS 5/2–619.1 (West 2014). A section 2–615 motion challenges the legal sufficiency of a complaint based on defects apparent on its face. K. Miller Construction Co., Inc. v. McGinnis, 238 Ill.2d 284, 291, 345 Ill.Dec. 32, 938 N.E.2d 471 (2010). In ruling on such a motion, the court may consider only those facts apparent from the face of the pleadings, judicial admissions in the record, or matters of which the court can take judicial notice. Id. In addition, we accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts which are favorable to the plaintiff. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148,¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318. We review a dismissal under section 2–615de novo. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29, 390 Ill.Dec. 74, 28 N.E.3d 727.

¶ 11 We first address the plaintiff's contention that the circuit court erred in granting Johnson's section 2–615 motion to dismiss count II of her amended complaint. Count II was brought pursuant to section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (2012) ) and alleged that Johnson, while acting under color of state law, violated the plaintiff's first amendment right to freedom of association (U.S. Const. amend. I ), and fourteenth amendment right to equal protection of law (U.S. Const. amend. XIV ).

¶ 12 Initially, we note that the plaintiff filed her amended complaint against Johnson in both her individual and official capacity as Village clerk. As the Supreme Court explained in Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), "[p]ersonal capacity suits seek to impose personal liability upon a government official for actions [s]he takes under color of state law. Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an...