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 justices wrote.
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 misrepresented facts.”
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 Chicago.