Rudisill v. Flynn

• Decision Date: 31 May 1979
• Docket Number: No. 78 C 1764.,78 C 1764.
• Citation: 470 F. Supp. 1269
• Parties: Stephen G. RUDISILL and Gail P. Rudisill, Plaintiffs, v. Ruth S. FLYNN, Frank Angelotti, Jackqueline Angelotti and Ralph Huszagh, Defendants.
• Court: U.S. District Court — Northern District of Illinois

470 F. Supp. 1269

Stephen G. RUDISILL and Gail P. Rudisill, Plaintiffs, v. Ruth S. FLYNN, Frank Angelotti, Jackqueline Angelotti and Ralph Huszagh, Defendants.

No. 78 C 1764.

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

May 31, 1979.

Stephen G. Rudisill, Chicago, Ill., for plaintiffs.

Thomas H. Neuckranz, Jacobs, Williams & Montgomery, Chicago, Ill., for defendants.

MEMORANDUM OPINION

FLAUM, District Judge:

This litigation concerns the validity of a bond referendum held by the Lake County Village of Kildeer.¹ The central question presented on defendants' motion to dismiss is whether the equal protection and due process rights of voters and taxpayers are violated when local government officials intentionally misrepresent and withhold facts bearing on the merits of a public works project in order to win referendum approval for its financing. For the reasons discussed below, the court answers the question in the negative and grants defendants' motion to dismiss for failure to state a claim on which relief can be granted.

The background of this suit is as follows, factual allegations in the amended complaint being taken as true for the purpose of this ruling. Plaintiffs Stephen G. Rudisill and Gail P. Rudisill reside, pay taxes and own property in Kildeer. Both voted in the bond referendum. Defendant Ruth S. Flynn is president and former clerk of the village. Defendants Frank Angelotti and Ralph Huszagh are village trustees. Angelotti owns a business, Applied Engineering, which sells engineering services including the design of sanitary sewer systems. Huszagh holds a beneficial interest in a large tract of undeveloped land owned by his mother and located in Kildeer. Defendant Jackqueline Angelotti is a former village trustee and the wife of Frank Angelotti.

Acting as village trustees between 1973 and 1976, the Angelottis and Huszagh are said to have falsely described Kildeer's need and its residents' desire for a sanitary sewer system to the village board of trustees, the Northeastern Illinois Planning Commission, the Illinois Environmental Protection Agency, and the Lake County Department of Public Works. These misrepresentations were allegedly motivated by the Angelottis' desire to have Applied Engineering obtain the engineering contract for the proposed system, and by Huszagh's desire to create opportunities for residential development of his mother's land. Based upon these misrepresentations, the Lake County Department of Public Works applied for and the Illinois Environmental Protection Agency offered state funding totalling more than $1,750,000, which amounted to seventy-five percent of costs associated with the design and construction of a sewer system for Kildeer.

In late 1976 and early 1977, the four defendants "induced" the village board of trustees² to order a public referendum on the question of whether the village should be authorized to issue bonds in the amount of $750,000 to pay the remaining twenty-five percent of the cost of designing and constructing a sewer system. Before and after the board set the referendum, the defendants allegedly conspired to deceive the villagers as to the merits of the project they were being asked to approve.³ As part of their campaign efforts, defendants disseminated leaflets containing misrepresentations and omitting material facts to all residents under color of the board of trustees' authority at a time calculated to be so near the referendum date that voters would not have an opportunity to learn of the deception. These alleged schemes "to panic and mislead voters" are said to have been responsible for the referendum's passage by twelve votes on May 14, 1977. Although no work has begun on the sewer system, defendants Flynn, Frank Angelotti, and Huszagh are said to be continuing to work toward its authorization, design and financing pursuant to the authority conferred by the referendum.

Counts I and II of the complaint assert that defendants' alleged misconduct gives rise to a cause of action under 42 U.S.C. §§ 1983 and 1985(3). Count III pleads a deprivation of the federal constitutional rights of equal protection and due process. As to these counts, jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343. Count IV is a pendent claim under Article I, §§ 2, 17 and 18 of the Illinois Constitution. Plaintiffs seek declaratory and injunctive relief including invalidation of the bond referendum, punitive damages, costs and attorney's fees. As deprivation of a constitutionally protected right is a necessary ingredient in causes of action under sections 1983 and 1985,⁴ and there is no independent ground for jurisdiction over the state claim,⁵ the viability of the suit in this forum turns on the merits of plaintiffs' contention that their fourteenth amendment rights have been violated.

Equal Protection

Plaintiffs' equal protection arguments focus on certain acts of the defendants which are said to have tainted the outcome of the May 14, 1977 bond referendum. Plaintiffs do not allege that they were physically "hindered in their right to cast ballots" while other residents voted unhampered, Ury v. Santee, 303 F.Supp. 119 (N.D.Ill. 1969), or that their votes were not counted while others were. Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978). The accuracy of the tabulation is not challenged.⁶ Rather, plaintiffs rely on precedents holding that discriminatory denial of equal protection of the law results when deception deprives certain groups of voters of "an equal opportunity to win votes," Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968) or unequally burdens their right to "cast their votes effectively", id. at 30, 89 S.Ct. 5, or subjects them to a "discriminatory design favoring a particular group against others," Smith v. Cherry, 489 F.2d 1098, 1103 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974).

Beyond doubt, the equal protection clause secures from invidious official discrimination the voter's interest in government of equal effectiveness with other voters. Reynolds v. Sims, 377 U.S. 533, 565, 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). Voting in local elections and referenda qualifies for constitutional protection. Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1969); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). However, the authorities cited by plaintiffs do not support a holding that the facts alleged describe an instance of discrimination within the meaning of the fourteenth amendment.

"The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state's action." Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970). The classification alleged here does not relate to race, ethnic background, geographical location, poverty, political beliefs or party affiliation, see cases cited at id., but instead is said to resemble a classification deemed unlawful in Smith v. Cherry. In that case, plaintiffs pleaded that Cherry was a bogus candidate who opposed Smith in the Democratic primary for state senate without intending to run in the general election but rather to withdraw after capturing the nomination so as to allow the Democratic Senatorial Committee to appoint another candidate, Palmer. Thus the nominee was selected not by voters in the primary but by the party committeemen. The Seventh Circuit found a colorable claim that the defendant public officials had conspired to discriminate among three groups of voters: (1) "Organization Voters" or "INS" who would have voted for either Cherry or the substituted Palmer, (2) "Swing Voters" who would have voted for Cherry but not for Palmer, and (3) "Smith Voters" or "OUTS" who would have voted for Smith as against either Cherry or Palmer. 489 F.2d at 1102. The court described the nature of the discrimination as follows:

Organization Voters and Swing Voters were both "tricked" into voting for Palmer when they thought they were voting for Cherry. But the impact of this deception fell unequally on the two groups of voters, because the Organization Voters would have voted for Palmer anyway, whereas the Swing Voters would have voted against him.

By deceiving the Swing Voters, the conspiracy allegedly enabled Palmer to win an election he could not have won had he openly been on the ballot. The conspiracy defeated Smith, who allegedly would have won an honest election against Palmer. Thus the conspiracy worked "in favor of the ins and against the outs." Shakman v. Democratic Organization, 435 F.2d 267, 270 (7th Cir. 1970). Swing Voters and Smith Voters were "denied an opportunity to win votes" (Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5 , 21 L.Ed.2d 24) and suffered an unequal burden on their right "to cast their votes effectively." Id. at 30, 89 S.Ct. 11. The Smith Voters were denied an equal opportunity "to associate for the advancement of political beliefs" with the Swing Voters. Id. at 30, 89 S.Ct. at 10. These claims of deliberate discrimination against Swing Voters and Smith Voters stated a cause of action for violation of rights protected by the equal protection clause.

Id. (emphasis added).

By plaintiffs' analogy, defendants herein deliberately discriminated among (1) Prosewer Voters who "would vote for sewer regardless of what facts were disclosed to them by Village officials", (2) Swing Voters who "would vote for or against sewer depending on what facts were disclosed to them", and (3) Anti-sewer Voters who "would vote against sewer regardless of what facts were disclosed to them". Continuing to invoke Smith v. Cherry, they assert that "Swing Voters . . . were `tricked' into voting for the sewer, but the impact of this deception fell on the Antisewer Voters as well as the Swing Voters. The vast majority of the electorate might...