Cook County Record

Monday, December 9, 2019

Judge: No evidence Madigan, allies improperly used expunged records to smear 2016 primary foe

By Jonathan Bilyk | Mar 15, 2017

Springfield capitol dome

A man who launched an ill-fated primary election challenge of Michael J. Madigan, arguably the most powerful politician in Illinois, has again lost to the Speaker of the State House of Representatives, after a federal judge tossed out his lawsuit alleging Madigan and his political allies violated his constitutional rights by conspiring to smear his name and undercut his campaign.

On March 14, U.S. District Judge Matthew F. Kennelly sided with Madigan and other defendants accused in the lawsuit, saying plaintiff Jason Gonzales presented no evidence that Madigan and his allies used the power of the state or their positions to violate any of Gonzales’ rights.

“Gonzales argues … that, due to Madigan's lengthy service in the Illinois House of Representatives, his ‘authority as a private person and the authority he derives from his position are indistinguishable,’” Kennelly wrote. “Gonzales cites no case law to support this proposition. The Seventh Circuit has repeatedly stated that ‘[t]he mere assertion that one is a state officer does not necessarily mean that one acts under color of state law.’

Illinois State House Speaker Michael J. Madigan (D-Chicago)

“Gonzales must allege facts permitting a plausible inference that Madigan engaged in conduct made possible by his official authority under state law that contributed to the alleged constitutional violations. Gonzales has not done so in his complaint in its current form.”

Kennelly dismissed the complaint without prejudice, for now, giving Gonzales until March 29 to refile a lawsuit “that contains at least one viable claim.”

Gonzales, a Chicago Democrat, filed suit last August against Madigan, who has served in the Illinois General Assembly since 1971, and has served as House Speaker for all but two years since 1983, making him the longest-serving leader of any state legislative body in the country.

Gonzales had challenged Madigan in the Democratic Party primary election in the spring of 2016.

Gonzales ultimately garnered a little over the quarter of the vote.

However, Gonzales in his lawsuit alleged Madigan didn’t play fair, enlisting allies and connections to improperly obtain information about Gonzales’ background from the Illinois Prison Review Board and then distribute it to voters. According to court documents, Gonzales was convicted of unlawful use of credit cards as a teenager, and served a sentence that included jail time, probation and fines. Following his sentence, Gonzales returned to high school, became an Illinois State Scholar, enrolled at Michigan State University and graduated from Duke University with degrees in history and economics. He later earned a Master of Business Administration degree from Massachusetts Institute of Technology and Master of Public Administration from Harvard University.

Court documents indicated former Gov. Pat Quinn pardoned and cleared Gonzales’ record in 2015. Gonzales’ criminal records had either been expunged or sealed by October 2015. He then filed nominating petitions as a Democrat in Madigan’s 22nd House District in November 2015.

Gonzales accused Madigan’s allies of then using his supposedly expunged and sealed records to defame him by publishing statements about his expunged conviction on various platforms and instructing voters to not vote for Gonzales because he was a “convicted felon.”

Gonzales accused the speaker of “tainting the pool of voters with messages that Gonzales was a convicted felon in television commercials, internet commercials, mailers, yard signs, in-person encounters with potential voters as Madigan and his employees and/or agents went door to door throughout District 22, and the like, after Gonzales had received a full gubernatorial pardon.”

Gonzales’ lawsuit also named the Prisoner Review Board as a defendant in the lawsuit, accusing the agency of improperly disclosing his records to, among others, a reporter at The Daily Herald.

Gonzales further accused Madigan and his allies of depriving him of his constitutional rights by placing two alleged stalking horse candidates on the ballot with the intent of diluting Gonzales’ share of the Hispanic vote in the district.

Other defendants named in the action included Madigan’s campaign organization, the 13th Ward Democratic Organization and individuals Shaw Decremer, Silvana Tabares, Ray Hanania, Joe Barbosa and Grasiela Rodriguez.

For the allegations to stick, however, Judge Kennelly said Gonzales would need to demonstrate Madigan and his allies used official positions to act “under color of state law.”

Gonzales argued Madigan and his allies deployed “resources available to them” to smear his name, including “supporters, precinct captains, campaign war chests, and political favors.” But the judge said said Gonzales failed to provide “any specific instances of how he contends any of these defendants employed these resources or otherwise misused power possessed by virtue of state law.”

The judge also dismissed charges against the other individuals named in the complaint, saying “there is no basis for an allegation that the private actors had a meeting of the minds with any state actor.”

And the judge dismissed the charges against the Prisoner Review Board, agreeing with the PRB’s assertion that, as a state agency, it cannot be sued under Section 1983, and rejecting Gonzales’ request to be allowed to amend his complaint to name individuals at the PRB who could be sued under the law, because, the judge said, the PRB did not violate Gonzales’ rights by releasing information about his criminal records to a newspaper.

Gonzales was represented in the action by attorney Anthony J. Peraica, of Chicago.

Madigan was defended by attorneys Joel D. Bertocchi, J. William Roberts, Robert T. Shannon, Gretchen H. Sperry and Adam R. Vaught, of the firm of Hinshaw & Culbertson, of Chicago.  Other defendants were represented by attorneys K. Austin Zimmer, Joseph A. Giambrone and Michael T. Del Galdo, with the Del Galdo Law Group, of Berwyn; Michael T. Layden and Richard J. Prendergast, of Richard J. Prendergast Ltd., of Chicago; Michael J. Kasper, of the firm of Fletcher Topol & O’Brien, of Chicago; and attorneys Scott B. Erdman, of Chicago; Michael Kreloff, of Glenview; and James P. Nally, of Chicago.


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Organizations in this Story

Hinshaw & Culbertson LLPRichard J. Prendergast, Ltd.Illinois General AssemblyIllinois House of RepresentativesIllinois House Speaker Michael J. MadiganDel Galdo Law Group LLCAnthony J. Peraica & Associates. Ltd.