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

[executivedirector at lpillinois.org]

For us in 2020, it was a gambit and it paid off. In 2022, it's a 
different story. Though we are stronger now than we were in 2020, we 
still will need help. Having no experience with defending petitions 
against challenges, is there a resource that walks us through the 
process? Are there resources, if needed, that we can utilize to defend 
petitions?

On 2022-02-23 20:01, treasurer--- via Lpil-bod wrote:
> 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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