A former candidate for the office of village president in
suburban Broadview will have a chance again to press her claims that the
village’s clerk violated the candidate’s rights by actively opposing her
candidacy, allegedly using her office’s resources to help challenge the
candidate’s nominating petitions and using the village’s special emergency notification phone
system to tell village residents any votes for the candidate would not count.
On Nov. 10, a three-justice panel of the Illinois First
District Appellate Court ruled in favor of plaintiff Princess Dempsey,
overturning the decision of Cook County Circuit Judge Kathy M. Flanagan to
dismiss Dempsey’s lawsuit against Broadview Village Clerk Maxine Johnson.
“The Illinois' Election Code … has ‘cloaked" Johnson
with ‘some degree of authority’ over the consolidated election and Johnson's
status as Village clerk enabled her to execute a scheme to destroy the
plaintiff's candidacy in a manner that private citizens never could have,” the
The opinion was authored by Justice Thomas E. Hoffman, with
justices Joy V. Cunningham and Mary K. Rochford concurring.
The case centered on events that occurred in the weeks
leading up to the April 2013 municipal election in the village of Broadview.
According to court documents, Dempsey had filed to run as
one of four candidates seeking the office of village president. Other
candidates whose names ultimately ended up on the ballot included eventual
winner Sherman Jones, as well as Norlander Young and Judy B. Brown-Marino.
All candidates wishing to run in the race were required to
file nominating petitions with the village clerk. At that time, Johnson served
in that capacity.
According to the court documents, Dempsey alleged, after she
filed her nominating petitions, Johnson took the petitions home with her and
then shared them with Brown-Marino, who Johnson was purportedly supporting in
the village president race, to help Brown-Marino challenge Dempsey’s petitions.
Later, Johnson was also among those on the village’s
electoral board who voted to reject Dempsey’s petitions and refused to place
her name on the ballot.
Dempsey challenged that decision in court, and a Cook County
judge ordered her name listed among the other candidates on the ballot.
However, the day before the village election, Johnson
allegedly contacted village residents using the community’s emergency notification phone
system – which allows village officials to contact all village residents in
case of emergency – to tell them Dempsey’s name should not have been on the
ballot and that any vote for her was a “lost vote.”
According to election results listed by the Cook County
Clerk’s office, Dempsey received 191 votes in the election. Jones secured the
victory with 925 votes; Brown-Marino received 350 votes.
Dempsey then filed suit against Johnson, both individually
and in her official capacity as village clerk, asserting Johnson’s interference
ruined her candidacy and trampled her constitutional rights.
Johnson responded with a motion to dismiss for failure to
state a claim, saying the clerk’s actions didn’t actually violate Dempsey’s
rights, as she still received votes. Flanagan agreed and dismissed the case.
However, on appeal, the justices said Dempsey’s allegations
were serious and specific enough to win her another chance to litigate her case
against Johnson, both individually and as a former official agent of the
village of Broadview.
They said Dempsey’s accusations demonstrate a likelihood
Johnson actually did violate Dempsey’s constitutional rights to freedom of
association and equal protection under the law.
The justices noted that Johnson, as village clerk, was in a
position to actually harm Dempsey’s candidacy.
“The disparity in
power between Johnson and the plaintiff is significant,” the justices wrote.
And Dempsey has alleged, specifically, that Johnson “leveraged
her power to ‘destroy’ the plaintiff’s candidacy in retaliation for exercising
her first amendment (sic) right to participate in the election and associate as
an independent candidate.”
“While it is true, as Johnson asserts, that the plaintiff's
name remained on the ballot and that voters were able to cast votes in her
favor, the fact remains that her robo-call had the practical effect of removing
the plaintiff's name from the ballot since it clearly and unambiguously
informed voters that any votes cast in her favor would be a ‘lost vote,’” the
justices wrote. “As a consequence, the plaintiff's name was removed from
voters' consideration and voters who wanted to vote for the plaintiff, likely
cast their votes for other candidates.”
Further, the justices rejected Johnson’s attempt to escape
liability by arguing her actions were conducted as part of her duties as
village clerk, thus triggering protections from negligence claims under the
state’s Tort Immunity Act. That law can provide protection to public officials
against lawsuits brought against them for official actions.
The justices, however, said in this case, Dempsey has specifically
alleged Johnson acted “willfully and wantonly” – meaning the state law would
provide no protection.
“Throughout her complaint, the plaintiff specifically
alleges that Johnson willfully and wantonly provided false information to the
voters with the intent to ‘suppress the vote’ and cause injury to the
plaintiff,” the justices wrote. “Nowhere in the complaint does the plaintiff
allege that Johnson's conduct was negligent or that she negligently
The justices remanded the matter to Cook County Circuit Court
for further proceedings.
According to Cook County court records, Dempsey was
represented in the case by attorney Doug Ibendahl, of Chicago.
Johnson was represented by the firm of Johnson & Bell, of