[LPIL - Board of Directors] LP IL v Cook County Clerk - Ruling pending

[treasurer at lpillinois.org]

>From our attorney, Andrew Finko.  There is a lot to cover here but the cliff
notes version is that Judge Gettlemen is appears to be inclined to rule in
our favor.  Issue is that the Deputy States Attorney asked for more time for
a brief to make some bs up describe how ILCS 7-2 makes us not qualified as
an "Established" party.    That is due on February 25.  Our response is due
on February 28.  Ruling will be handed down on March 4.  

 

In the mean time, he says to expect the Clerk to be very aggressive against
us on petitions when we turn them in.  He recommends having 10x the number
of signatures needed to get on the ballot for countywide races. Her
henchman, Jim Nally, has been messing with SEI forms so please note.
"[They] have been consistent about cutting off the rest of the SEI, and only
submitting to portion of the SEI which contains the foregoing info only, and
not submitting the answers to questions. The answers to questions do NOT
need to be submitted.  The new form has the Receipt separate on the first
page of the packet - and that's the only part Nally would submit, so he's
revised the form.  Suggest that the LPI similarly submit only the Receipt
portion of the (new) SEI form - attached."

 

Russ Clark

 

 

>From Andrew Finko to Russ Clark

 

The hearing lasted a bit over an hour, and I had a couple other matters set
this afternoon, sorry for delay in sending this email. 

 

First topic was Green Party motion to intervene - and (of course) the Clerk
objected, and requested time to file a response. Ruling TBD.  Green Party to
file an amended motion with proposed complaint by 2/25, Clerk file response
by 3/9 and reply by 3/14. 

 

Second topic was our motion for prelim injunction.  Judge Gettlemen started
out by summarizing his understanding/position, which was basically our
position.  He commented that Section 10-2 defined 5% and that the Election
Code generally, and that Sec. 7-2 and 7-4 confirmed that the LPI was
authorized to nomination Commissioners and committeepersons within Cook
County specifically.  He noted that Section 10-1 expressly prohibited an
established party from nominating its candidates under Article 10.  He said
exactly what I intended to say. 

 

Judge Gettleman was totally on board with our arguments - his only criticism
is that the motion was not for declaratory judgment but only prelim
injunction so he expressed concern over the relief that we requested.  He
actually commented about what I wrote - that he was surprised the Clerk did
not at all address the applicability of Article 7 of the Election Code.  I
summarized the constitutional law, that there's strong first and fourteenth
amendment rights, and the Clerk's position was well-defined, she refused to
change her stance. Judge Gettleman during the hour argument, also brought up
Colleen Gleason's email specifically saying that LPI was established for
only county-wide county officer positions, but not established for all other
listed offices on the ballot. 

 

In response, Jessica Scheller said, outright that Article 7 did not apply.
Her logic was totally off base when she argued that Article 7 applied only
to municipal elections, and LPI did not attain established party status or
run candidates at the April 2021 election. She's been an attorney since 2004
so should know better than to make stuff up.  I pointed out that 10 ILCS
5/7-1 defined applicability of Art. 7, including nomination of partisan
candidates for county elections.  Jessica Scheller then embarked upon utter
BS backpeddling, saying that the first sentence in Sec. 7-1(a) that said
"unless otherwise prohibited in this Article . . . " meant that Art 7 did
not apply and that Sec. 10-2 was the only part of Election Code applicable.
I pointed out that Sec. 7-1(b) actually defined the elections that were not
governed by Article 7 (the exception referenced in 7-1(a)).  She then tried
to argue that the word "Article" meant the Election Code . . .  but Judge
Gettleman was quick to note the use of Article as referring to the
section/chapter, rather than the entire Code.  I could not believe my ears -
actually was shocked to hear what a licensed attorney was saying to a
federal court judge - nothing less than total lies and BS.

 

Anyway, Jim Nally was on the line, but did not speak up.  

 

At the end of the hour, State's Attorney asked for a sur-reply to address
the applicability of Article 7 and interplay with Section 10-2.  I objected,
but Judge Gettleman said (more than once during hearing too) that Election
Code was confusing, not easily understood, so allowed the further briefing
(by Friday) and allowed me the last word (by Monday). 

 

Hearing continued to Friday March 4, 2022 at 11:30 AM before Judge
Gettleman. 

 

Separately, I can also order the transcript if you wish, but that's about
$250 or so based on ballpark estimate from court reporter.  It would be
needed for an appeal, and could provide additional detail about the hearing
today. Let me know if you're OK with the additional cost - if we prevail, I
could ask for reimbursement from the Clerk.  In addition, if we prevail, I
would also ask the Clerk for payment of my hourly attorney fees, and
reimburse to the LPI the amounts that were paid to me initially to get
started. 

 

I requested to order the transcript and will pay for this from ballot access
funds.  We will see what reimbursement we get from Cook County Clerk.  

 

I asked Andrew:



Too bad we didn't go for declaratory judgement.  It sounds like we would get
it.  Is there a possibility we could ask for it?  Our countywide slate
petitioning is going well so we should pass the signature requirements.  Two
of the three plaintiffs also have enough signatures to clear our calculated
47 valid signatures.  Our candidates are doing the work so this would just
be icing on the cake for them.  If we got a declaratory judgement, would we
be able to slate for Cook County Board seats without petitioning?.

 

We did request a declaratory judgment - it's Count I of the Complaint.
However, at this juncture, the judge isn't ruling upon that request, since
it's only a preliminary injunction request. However, we needed to address
that argument, as likelihood of success on the merits is one element we need
to establish to obtain a preliminary injunction (along with a direct
conflict between the parties, monetary damages could not adequately
compensate, urgent need for relief, etc.). 

 

Also, there's procedural rules that preclude the judge from deciding the
complaint right now.  Defendant/Clerk has time to file a motion to dismiss
the complaint or an answer (until 2/24). Thereafter, we can file a FRCP Rule
56 "motion for summary judgment," or possibly, a FRCP Rule 12 "motion for
judgment on the pleadings" depending upon how the Clerk responds.  That's
next. I made sure that the summons was personally served, rather than
sending a waiver of service request, that would then have allowed +60 days
to respond to the complaint.  When personally served, the time to respond is
+20 days from service on 2/4/2022.  Of course, the Clerk could ask for
additional time, but that's up to the Judge to decide. 

 

At present, the preliminary injunction asks for ballot placement of only the
three commissioner candidates directly on the ballot, due to denial of
recognition/signature requirements from Clerk.  Rest of slate for countywide
offices will need to file its nomination papers, since that wasn't included
in the requested relief.  And, I'm not sure Judge Gettleman has the
confidence of Judge Pallmeyer to directly place candidates upon the ballot,
that's a big request.  

 

For signatures, I would suggest obtaining at least 10 times the minimum -
and you should expect to get multiple challenges nonetheless.  For purposes
of filing, ALL LPI candidates should (strongly recommended) file on the last
day to file, March 14, 2022 rather than March 7, 2022.  Extra week to gather
signatures, plus, there is NO advantage to filing on March 7, 2022 - with
only one or two candidates for each office, there's no lottery for first
position, and really, first or second doesn't matter if there's only two
candidates.  The reason to file last day is to prevent the machine from
having an extra week to review signatures and then create objections - and
you can bet Jim Nally will be orchestrating those objections.

 

As for the MWRD, it was created within Cook County, and the boundaries of
the MWRD have not changed or been remapped, so that's not a problem from my
point of view - it's the same (internal) boundaries within Cook County. And
its commissioners are elected countywide, not by district. So again, no
change based on redistricting. LPI should similarly be authorized to run
candidates for MWRD based upon Nov. 2020 electoral success. 

 

If we prevail upon the preliminary injunction, then it's smooth sailing
going forward - a judgment on the complaint, and possibly, the Clerk might
even agree to entry of a consent judgment to save money on attorney fees.
That's not likely right now, but if Judge Gettleman grants motion for
preliminary injunction then maybe (to minimize exposure to attorney fees).

 

If the LPI is recognized as established by the court for all offices, then
the LPI would need to have candidates ready for township committeepersons -
and suggest that you solicit names now, and prepare to file nomination
papers.  Township Committeepersons (and Ward Committeepersons in Chicago)
would then vote to fill vacancies from the primary election and file
nomination papers later - and remember that's also a signature gathering
endeavor, have to gather as many signatures as would've been required for
primary election, but during the summer (after primary election results are
certified). 

 

Do you have statements of candidacy and statements of economic interests for
all candidates?  The SEI form must be the Cook County Clerk's template/form,
and filed with the Clerk's office.  The Receipt is the portion with the
name, address, office sought typed in, and the round stamp or seal of the
Clerk in the box. Jim Nally (and Jaconetty) have been consistent about
cutting off the rest of the SEI, and only submitting to portion of the SEI
which contains the foregoing info only, and not submitting the answers to
questions. The answers to questions do NOT need to be submitted.  The new
form has the Receipt separate on the first page of the packet - and that's
the only part Nally would submit, so he's revised the form.  Suggest that
the LPI similarly submit only the Receipt portion of the (new) SEI form -
attached. 

 

Also, must be bound with two hole (or three ring) punched hole/binding
system, or wire/string.  Pages numbered at the bottom consecutively.  

 

 

 



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