Kuna v. Illinois State Bd. of Elections

• Decision Date: 26 September 2011
• Docket Number: No. 09–CV–1049–WDS.,09–CV–1049–WDS.
• Citation: 821 F.Supp.2d 1060
• Parties: Thomas “Tom” KUNA, Plaintiff, v. ILLINOIS State BOARD OF ELECTIONS, State of Illinois, Raymond True, Jersey Community Unit School District # 100, Shop N' Save Warehouse Foods, Inc., Wal–Mart Stores, Inc., Sinclair Food South, Inc., Defendants.
• Court: U.S. District Court — Southern District of Illinois

821 F.Supp.2d 1060

Thomas “Tom” KUNA, Plaintiff,

v.ILLINOIS State BOARD OF ELECTIONS, State of Illinois, Raymond True, Jersey Community Unit School District # 100, Shop N' Save Warehouse Foods, Inc., Wal–Mart Stores, Inc., Sinclair Food South, Inc., Defendants.

No. 09–CV–1049–WDS.

United States District Court, S.D. Illinois.

Sept. 26, 2011.

Thomas “Tom” Kuna, Kane, IL, pro se.

Terence Corrigan, Illinois Attorney General's Office, Springfield, IL, Belinda Becker, Robbins, Schwartz et al., Collinsville, IL, Daniel S. Hefter, Fox, Hefter et al., Martin J. Bishop, Rebecca R. Hanson, Foley & Lardner, LLP, Chicago, IL, Andrew K. Carruthers, James S. Sinclair, Stobbs & Sinclair, Alton, IL, for Defendants.

MEMORANDUM AND ORDER

STIEHL, District Judge:

Before the Court are several pending motions, including: Joint motion to dismiss filed by defendants Illinois State Board of Elections and the State of Illinois (Doc. 25), to which plaintiff has filed a response (Doc. 48) and defendants a reply (Doc. 49); a motion to dismiss filed by defendant Jersey Community Unit School District # 100's (“School District”) (Doc. 29), to which plaintiff has filed a response (Doc. 57); a motion to dismiss filed by defendant Shop N' Save Warehouse Foods, Inc's. (“Shop N' Save”) (Doc. 40), to which plaintiff has filed a response (Doc. 60), and defendant a reply (Doc. 64); defendant Sinclair Food South, Inc's. (“Sinclair's”) motion to dismiss (Doc. 46) to which plaintiff has filed a response (Doc. 59) and defendant a reply (Doc. 64); and a motion to dismiss filed by defendant Wal–Mart Stores, Inc's. (“Wal–Mart”) (Doc. 54) to which plaintiff filed a response (Doc. 65) and defendant a reply (Doc. 66).

I. BACKGROUND

Plaintiff filed his complaint pro se, and although not well-framed the Court gives it broad construction. Plaintiff's claims revolve around his unsuccessful attempt to run as a Republican candidate for the February 2, 2010, United States Senate primary in Illinois. Counts I, II and III, IV and VI of the plaintiff's complaint are directed at the State of Illinois and the Illinois State Board of Elections (“State Defendants”).

Plaintiff contends that the State Defendants violated his constitutional rights, specifically, claiming that they violated Article IV, sections 1, 2 and 4, the “full faith and credit,” “privileges and immunities,” and “republican form of government” clauses of the United States Constitution, as they apply to the state of Illinois under the Fourteenth Amendment. U.S. Const. art. IV, §§ 1, 2, 4; U.S. Const. amend. XIV. Plaintiff's raises a Constitutional violation premised on Illinois Election Code's minimum signature requirement. See 10 ILCS 5/7–10(a) (2008).¹ Plaintiff claims that this requirement is too high to be met by “poor rural contenders.” (Doc. 1.)

Plaintiff also claims 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 asserts that 10 ILCS 5/7–10.1 is unconstitutionally vague and does not specify which court, Illinois State Circuit Court or Federal District Court, has jurisdiction to hear his complaint against the Illinois State Board of Elections. Plaintiff requests that this Court grant him permission to file his claims in state court, without explaining how this Court either has jurisdiction to allow or could prevent such filing. Plaintiff seeks monetary damages and attorney fees, although he is proceeding without representation of counsel, from the State defendants.³ Finally, plaintiff asks the Court to require the Illinois State Board of Elections to address any federal or state constitutional issues, presumably, when raised by another, or future contender for political office.

Count V of the complaint is directed to defendants School District, Shop N' Save, Sinclair and Wal–Mart, alleging that these public and private organizations barred plaintiff from circulating his nomination petition and other campaign materials. Plaintiff asserts that these defendants violated his First Amendment “free speech and assembly” rights, and that they violated his Article IV, section 4 right, “guarantee[ing him a] republican form of government.”

Plaintiff requests seeks damages from the School District, Shop N' Save, Sinclair and Wal–Mart and a finding that these defendants' rules prohibiting the circulation of political petitions are unconstitutional.⁴

II. ANALYSISA. Summary of Pending Motions to Dismiss.

1. State Defendants (Doc. 26)

The State defendants seek dismissal of all counts of the complaint pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Specifically, the State defendants claim that sovereign immunity protects the state from suit. Plaintiff's response contains a new claim that the State's election laws raise such high barriers for candidates so as to amount to employment discrimination. Plaintiff also claims that his attempt to run for ⁵ for United States Senate was effectively an “employment application,” and thus, the statute's signature requirement amounts to employment discrimination. Additionally, plaintiff claims that he filed an “identical action” in state court and that the State court took no action or even responded to his complaint. Additionally, in his response to the State defendants' motion, plaintiff moves the Court for leave to amend his complaint and name the following individual defendants, presumably in their official capacities: Illinois State Attorney General Lisa Madigan, Illinois Governor Pat Quinn and Chairman of the Illinois State Board of Elections Albert Porter.

2. The School District (Doc. 29)

The School District seeks dismissal of all counts on the grounds that the claims are moot, and pursuant to Fed. R. Civ. Pro. 12(b)(6), for failure to state a claim upon which relief can be granted. The School District asserts that because the conduct surrounding plaintiff's complaint is concerned with the primary election which was held on February 2, 2010, there is no live controversy for this Court to resolve and the issue is moot. Second, the School District asserts that it was precluded from allowing plaintiff to circulate his nominating petition by the Election Interference Law, 10 ILCS 5/9–25.1. This statute prohibits the use of public funds, “to urge any elector to vote for or against any candidate or position.” 10 ILCS 5/9–25.1(b) (2008). Finally, the School District asserts that the plaintiff has not raised a viable claim as to how the First Amendment guarantees him a right to circulate campaign materials on a private school property owned by a public entity. That is, plaintiff failed to show how the School District constitutes any type of a forum let alone a public forum, and, therefore, it should not be held liable for any infringement on plaintiff's Constitutional rights. Finally, the School District asserts that since plaintiff's complaint is related to the February, 2010 election, Illinois Election Code governs the complained of conduct. Thus, under 10 ILCS 5/9–20 (2008), plaintiff should have first filed a complaint with the Illinois Election Board. And if unsuccessful, he could have then filed for review with the state appellate court for the district in which the cause of action arose. See 10 ILCS 5/9–22 (2008).

In his response, plaintiff essentially argues that the issue is not moot because it is, “capable of repetition yet evading review.” Additionally, plaintiff challenges the School District's interpretation of 10 ILCS 5/9–25.1(b), as being too broad. Plaintiff argues that since public funds are expended for creation and upkeep of public streets, sidewalks and parks, under the School District's reading of the statute, campaigning activity would be illegal there as well.

Plaintiff, also attempts to amend his complaint to include factual information. Essentially, plaintiff claims that he telephoned the Superintendent of the School District and asked for his permission to stand near the exits of the football field in order to solicit nomination petition signatures from the public entering and exiting a football game. Plaintiff argues that because he attempted to solicit signatures during a public event—a football game—the School District became a public forum. Therefore, he was entitled to Constitutional protections traditionally associated with public venue. Plaintiff adds information regarding his attempts to obtain administrative relief from the Illinois State Board of Elections. As will be noted bellow, such attempts were not necessary and their factual recitation is irrelevant.

3. Remaining Defendants (Docs. 41, 47, & 55)

Defendants Sinclair, Shop N' Save and Wal–Mart seek dismissal of plaintiff's complaint pursuant to Fed. R. Civ. Pro. 12(b)(6), for failure to state a claim upon which relief can be granted. Sinclair and Wal–Mart initially argue that since the election is over, the complaint is moot. Additionally, these defendants, joined by Shop N' Save, argue that as private entities, they could not have violated defendant's constitutional rights.

Plaintiff argues that his complaint is not moot because it presents an issue of substantial public interest and thus constitutes a well recognized exception to the rule. With respect to the remaining arguments of Sinclair, Shop N' Save and Wal–Mart remaining arguments, plaintiff claims that he called the store managers of the three defendants around late August, and asked for permission to stand on a sidewalk in front of the stores to solicit signatures. All store managers denied permission. Plaintiff then argues that Sinclair, Shop N' Save, and Wal–Mart are each public fora and thus should not have interfered with plaintiff's political speech—and that each had public bulletin boards which, in addition to...