2020 IL App (1st) 201182 No. 1-20-1182 Fourth Division November 10, 2020 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) THOMAS J. SOMER, in His Official Capacity as Bloom ) Appeal from the Circuit Court Township Supervisor; CARLA MATTHEWS, in Her ) of Cook County. Official Capacity as Bloom Township Trustee; MIKE L. ) NOONAN, in His Official Capacity as Bloom Township ) No. 2020 COMS 000032 Trustee; JOSEPH PATRICK STANFA, in His Official ) Capacity as Bloom Township Highway Commissioner; ) The Honorable DERRICK BURGESS, in His Official Capacity as Mayor ) Patrick T. Stanton, of the Village of Sauk Village; ANNIE R. COULTER, in ) Judge Presiding. Her Official Capacity as Mayor of the Village of Ford ) Heights; DAVID A. GONZALEZ, in His Official ) Capacity as Mayor of the City of Chicago Heights; ) RICHARD HOFELD, in His Official Capacity as Mayor ) of the Village of Homewood; TERRY L. MATTHEWS, ) in His Official Capacity as Mayor of the Village of South ) Chicago Heights; KENNETH PETERSON, in His Official ) Capacity as Mayor of the Village of Steger; ) CHRISTOPHER BAIKAUSKAS, in His Capacity as ) Alderman of the City of Chicago Heights; and KIM M. ) ABEL, RICHARD J. AMADIO, LUPITA ARELLANO, ) KATHERINE AURELIO, LORI L. AURELIO-WHITE, ) MICHELE R. BAIKAUSKAS, SYLVIA BALTAZAR, ) JOYCE BLACK, LOUISE BOSTA, CHARLES ) CIAPHRS, DEBORAH K. CLADIS, HENRY DIAL, ) ALLIYAH DRAKE, CURTIS DRAKE, SHIRLEY ) DRAKE, JANET M. FIORENZO, TERENCE J. ) FIORENZO, MONIQUE GREEN, BETTY HARR, ) VICTORIA HAYSLETT, PAIGE HOGEVEEN, EDDIE ) JONES, SHARRONNE JONES, EDWARD J. ) KAMINSKI, BILL KELLY, BRIAN KERASEK, ) BERNARD LEWIS, FRANK LEWIS, FRANKIE W. ) LEWIS, INEISHA C. LEWIS, LAKEYSHA LEWIS, ) KEITH L. LOH, DAVID L. LONG, ARACELI ) MARRUFO, RONALD R. MASCITTI, STEVEN W. ) No. 1-20-1182
MATTHEWS, CHRISTINE PANICI, LUCIANO ) PANICI, JR., PAUL PAPPALARDO, KEITH PARISE, ) JOSEPH POPE, NORMA SANCHEZ, JOYCE ) SEALEY-HUFF, TIMOTHY M. SEESE, JUDI SOMER, ) JOHN N. STANFA, ERIC STANTON, LISA ) STANTON, CURTIS STRACZEK, TRACY ) SYLVESTAR, TRAVIS TAYLOR, PETROS ) VISVARDIS, and DANNY L. WHITE, JR., as ) Citizens of Bloom Township, ) ) Plaintiffs-Appellants, ) ) v. ) ) THE BLOOM TOWNSHIP DEMOCRATIC ) ORGANIZATION; THE BLOOM TOWNSHIP ) DEMOCRATIC CENTRAL COMMITTEE; LORI J. ) WILCOX, in Her Official Capacity as Committeeperson ) for the Bloom Township Democratic Organization Central ) Committee; THE CLERK OF BLOOM TOWNSHIP, in ) Her Official Capacity; and KAREN A. YARBOROUGH, ) in Her Official Capacity as Clerk of Cook County, ) ) Defendants ) ) (The Bloom Township Democratic Organization; The ) Bloom Township Democratic Central Committee; and ) Lori J. Wilcox, in Her Official Capacity as Committee- ) person for the Bloom Township Democratic Organization ) Central Committee, ) Defendants-Appellees). ) ) ______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Ellis concurred in the judgment and opinion.
OPINION
¶1 Bloom Township (Township) has several local elected offices which will be voted on in
their next general election, which will be held on April 6, 2021. Normally, the nominees for
each political party for their elected positions are selected through a caucus process, which
would occur on December 1, 2020. However, this is anything but a normal year, and the
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presence of a global health pandemic has changed the landscape of many otherwise “normal”
activities. Accordingly, plaintiffs, various elected officials and citizens of the Township, have
filed a lawsuit seeking an order requiring the Democratic nominees to be selected through a
primary instead of through the Township caucus process. Plaintiffs also filed a motion for a
preliminary injunction and temporary restraining order, seeking the same relief. After a
hearing, the trial court denied plaintiffs’ request for a preliminary injunction, finding that
plaintiffs had failed to establish a likelihood of success on the merits. Plaintiffs appeal and, for
the reasons that follow, we affirm, with instructions.
¶2 BACKGROUND 1
¶3 Bloom Township is an Illinois township, as defined by the Township Code (60 ILCS 1/1-
1 et seq. (West 2018)), with an estimated population of 89,214 residents, 56,182 of whom were
registered voters in the 2018 election. Under the Township Code, certain township offices are
elected “at the time of the regular township election provided in the general election law” and
hold office for four years. 60 ILCS 1/50-10(a) (West 2018). For 2021, the date of that election
is April 6, 2021. See 10 ILCS 5/2A-1.1 (West 2018) (setting forth election schedule).
¶4 Under the Township Code, on the first Tuesday in December preceding the date of the
regular township election—here, December 1, 2020—“a caucus shall be held by the voters of
each established political party in a township to nominate its candidates for the various offices
to be filled at the election.” 60 ILCS 1/45-10(a) (West 2018). The party’s township central
committee is responsible for promulgating rules of procedure for the caucus (60 ILCS 1/45-15
(West 2018)), which must be approved, and may be amended, by the participants attending the
1 All facts are taken from plaintiffs’ complaint and its exhibits, as well as from the briefing on the motion for a preliminary injunction. 3 No. 1-20-1182
caucus (60 ILCS 1/45-50(a) (West 2018)). However, a political party’s township central
committee “may, with respect to any regular township election, determine that its candidates
for township offices shall be nominated by [a] primary [election] in accordance with the
general election law,” rather than through a caucus process. 60 ILCS 1/45-55 (West 2018).
Under the Township Code, “[i]f the township central committee makes that determination, it
must file a statement of the determination with the county clerk no later than November 15
preceding the township election.” 60 ILCS 1/45-55 (West 2018).
¶5 In the case at bar, the Township’s Democratic central committee allegedly intends to select
its candidates through a caucus process, to be held on December 1, 2020. While this would
normally be uncontroversial, the global pandemic caused by the novel coronavirus (COVID-
19) has altered the landscape in which the caucus is to occur. On March 9, 2020, Governor
Pritzker declared all counties in the state of Illinois as a disaster area and, on March 13, 2020,
issued an executive order imposing restrictions as a result of the pandemic. The governor
subsequently issued a number of disaster declarations throughout the spring, summer, and fall
and periodically issued executive orders modifying the restrictions, depending on the state’s
level of success in battling the pandemic. At their maximum, the restrictions included, inter
alia, a “stay at home” order, the temporary closing of all nonessential businesses, the temporary
closing of schools, the mandatory wearing of face coverings, and the limitation of public or
private gatherings to no more than 10 people. At the time that the complaint at issue in the
instant appeal was filed, gatherings were limited to no more than 50 people or 50% of room
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capacity, whichever is less, and at the time of the filing of this opinion, the pandemic has
increased at an alarming rate. 2
¶6 On October 9, 2020, plaintiffs filed a complaint in the circuit court of Cook County, seeking
an order prohibiting the Township’s Democratic candidates from being selected through a
caucus and requiring the selection of candidates through a primary election. Plaintiffs allege
that the COVID-19 pandemic makes a caucus unsafe and would require the Township’s
citizens to choose between risking their health and forfeiting their right to vote. Plaintiffs
further allege that the number of participants at caucuses has historically been approximately
200 electors, and estimated that the December 1, 2020, caucus was expected to have as many
as 300 to 400 electors. Plaintiffs allege that holding such a caucus would “almost certainly”
violate the governor’s executive orders limiting the size of gatherings and mandating social
distancing. Plaintiffs’ complaint sets forth five counts: (1) declaratory judgment, (2) injunctive
relief, (3) violations of the Election Code, (4) mandamus, and (5) a writ of prohibition.
¶7 On the same day, plaintiffs filed an emergency motion for a temporary restraining order
and for a preliminary injunction. Plaintiffs requested an order that the Township be prohibited
from holding a caucus meeting on December 1, 2020, and that all Township candidates should
be elected via a consolidated primary election in February 2021.
¶8 In response to the motion for a preliminary injunction, defendants claimed that the motion
should be denied because the caucus meeting could be held in compliance with public health
guidelines and would not unduly burden any rights of plaintiffs. Defendants further claimed
that Democratic committeeperson Lori Wilcox had not made any public announcement as to
2 At the time of this appeal, gatherings are limited to 25 people or 25% of overall room capacity, whichever is less. 5 No. 1-20-1182
whether there would be a caucus meeting or a primary election, and was not required to make
such a decision until November 11, 2020, when she was required to notify the county clerk
under the Township Code.
¶9 The parties came before the trial court for a hearing on plaintiffs’ injunction motion on
October 21, 2020. At the hearing, the parties focused on whether plaintiffs had a likelihood of
success on the merits, as well as the balance of the equities. As in their response to the
injunction motion, defendants claimed that they had no intention of violating any of the public
health guidelines in place at the time of any caucus meeting, and counsel suggested various
ways in which the caucus could be held in compliance with the guidelines, such as permitting
remote attendance via Zoom or similar technology. The trial court questioned counsel about
what would happen if restrictions further tightened so as to make it impossible to hold a caucus
meeting, and counsel responded that if there was no caucus meeting, and the time period had
passed for selecting a primary, then any candidates would need to run as independent
candidates and not as candidates of the Democratic party. Counsel further explained that it was
fairly common for candidates to run as independent candidates or as candidates of new political
parties in township and other local governmental races in Cook County. In response, plaintiffs’
counsel claimed that there was no practical way to permit remote participation or to comply
with the public health guidelines, and that it would be much simpler to switch to a primary
election.
¶ 10 On October 27, 2020, the parties came before the trial court for a ruling on plaintiffs’
motion. Before the court issued its ruling, it noted that the governor had imposed additional
restrictions since the time of the hearing, lowering the number of attendees at any in-person
gathering to 25, and asked if defendants continued to assert that they would comply with the
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public health guidelines if a caucus was held. Defendants’ counsel responded that they would,
“absolutely.” Counsel further stated that “[w]e are trying to figure a way to do this
predominantly remotely, if not entirely remotely.”
¶ 11 The court then turned to plaintiffs’ motion, noting that it had asked the parties to attempt
to resolve the issue themselves, but that such efforts had proven fruitless. The court found that,
under the Township Code, caucuses were the preferred method for political parties to choose
their nominees for the general election, unless the committee instead decided to proceed
through a primary election. The court further found that the Township contained several
municipalities that would not have primary elections at all unless the committee chose to select
its candidates in that way, meaning that no poll workers, election judges, or voters would be
required to go to polling places within those municipalities. The court also found that the
parties agreed that if the committee did not provide the requisite notice, then the Democratic
party would have no nominees in the general election, meaning that the candidates would be
required to run in the general election as independent candidates or as nominees of new
political parties. The parties further agreed that the committee could affirmatively choose “to
make this a nonelection,” meaning that the committee could decide that the Democratic party
would sponsor no candidates. Finally, the court found that defendants had provided evidence
that there had been many contested elections in the Township in which candidates ran as an
independent, or sponsored by the Green party or other local political party.
¶ 12 The court noted that the parties did not dispute that plaintiffs had established that they had
protectable rights, including the right of assembly, and that they would suffer irreparable harm
if those rights were violated. Instead, the focus was on whether plaintiffs had shown that there
was a likelihood of success on the merits, with defendants claiming that plaintiffs had failed to
7 No. 1-20-1182
establish that a caucus meeting could not be held without violating the governor’s health and
safety guidelines. The court found:
“At this point, the court finds that plaintiffs have not met their burden. Specifically,
other than generally stating that the caucuses have been traditionally held indoors in
person with more than 50 people, now more than 25, plaintiffs have not established a
fair question that Wilcox and the committee cannot propose and enact rules that would
allow for conduct of the caucus that complies with the Governor’s Covid-19
limitations. Wilcox now has two weeks to decide whether or not to have a caucus that
complies with the governor’s rules. Thereafter, if she decides that no caucus can be
held, she can decide whether or not to have a primary. In making decisions, she will
need to weigh the risk that she will not be able to hold a caucus. In other words, if she
chooses to have a caucus, sends notice, but determines she can’t do one safely, or
whether it is in the best interests of the party to have a primary, I don’t believe this
court, through an injunction, can or should make that decision for her.”
¶ 13 The court specifically emphasized:
“In making this determination, the court accepts Wilcox’s assertion that she will
not hold a caucus that violates Covid-19 attendance restrictions. The court also
considers plaintiff’s statement that their electoral rights will be sufficiently protected if
no primary or caucus is held and that there is an open general election. The court is also
mindful that these facts are quickly changing and that the governor may, in fact, enact
rules applicable to the safe conduct of caucuses, as he did with the presidential election.
For now, the court will leave it to state and local elected policymakers to best
determine how and if caucuses can proceed.”
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¶ 14 Ultimately, the court found:
“This is a difficult decision; but ultimately, I think it’s premature in many respects for
me to say that a caucus can’t be held safely. And if she elects to try to have a caucus
and fails, the result will be an open election, which I think all parties agree, that
sufficiently protects the rights of the voters. And given the discretion she has to choose
between a primary, a caucus or not having any nominees, I don’t see how I can order
her to exercise that discretion to hold a primary.”
Accordingly, the trial court denied plaintiffs’ request for a preliminary injunction.
¶ 15 ANALYSIS
¶ 16 On appeal, plaintiffs contend that the trial court should have granted their motion for a
preliminary injunction in order to prevent the caucus meeting. Plaintiffs, as the parties seeking
the preliminary injunction, were required to demonstrate (1) a clearly ascertained right in need
of protection, (2) irreparable injury in the absence of an injunction, (3) no adequate remedy at
law, and (4) a likelihood of success on the merits of the case. Mohanty v. St. John Heart Clinic,
S.C., 225 Ill. 2d 52, 62 (2006). A decision to grant or deny a preliminary injunction is generally
reviewed for an abuse of discretion. Mohanty, 225 Ill. 2d at 62-63. An abuse of discretion
occurs only when the ruling “ ‘is arbitrary, fanciful, or unreasonable, or when no reasonable
person would adopt the court’s view.’ ” World Painting Co., LLC v. Costigan, 2012 IL App
(4th) 110869, ¶ 12 (quoting Clinton Landfill, Inc. v. Mahomet Valley Water Authority, 406 Ill.
App. 3d 374, 378 (2010)). However, where the determination rests on a question of law, it is
reviewed de novo. Mohanty, 225 Ill. 2d at 63. De novo consideration means we perform the
same analysis that a trial judge would perform. XL Specialty Insurance Co. v. Performance
Aircraft Leasing, Inc., 2019 IL App (1st) 181031, ¶ 62.
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¶ 17 In the case at bar, plaintiffs argue that a de novo standard of review should apply, because
they claim that the trial court’s decision was based on its interpretation of the Township Code.
However, the trial court’s ruling makes it clear that it was also heavily persuaded by
defendants’ representations that they would be able to safely conduct a caucus meeting.
Accordingly, where the trial court’s determinations of law are at issue, we review them de
novo, but otherwise, review the court’s denial of the preliminary injunction for an abuse of
discretion.
¶ 18 In the case at bar, only the final element—a likelihood of success on the merits—is in
dispute, and we cannot find that the trial court erred in finding that plaintiffs had failed to
establish a likelihood of success on the merits. First, plaintiffs have not provided any authority
suggesting that they have the ability to dictate the method by which a township’s political party
selects its nominees. Under the Illinois Constitution, townships are a limited form of
government that “shall have only powers granted by law.” Ill. Const. 1970, art. 7, § 8.
Additionally, under the Constitution, “[t]he General Assembly shall provide by law for the
selection of officers of the foregoing units [of local government].” Ill. Const. 1970, art. 7, § 8.
Here, the General Assembly has done so through the provisions of the Township Code.
¶ 19 As set forth above, the legislature has made the determination that “a caucus shall be held
by the voters of each established political party in a township to nominate its candidates for
the various offices to be filled at the election.” 60 ILCS 1/45-10(a) (West 2018). However,
“the township central committee of a political party composed of the elected township
committeeman and his or her appointed precinct committeemen *** may, with respect to any
regular township election, determine that its candidates for township offices shall be nominated
by primary in accordance with the general election law,” rather than through a caucus. 60 ILCS
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1/45-55 (West 2018). Under the Township Code, “[i]f the township central committee makes
that determination, it must file a statement of the determination with the county clerk no later
than November 15 preceding the township election.” 60 ILCS 1/45-55 (West 2018). The
express language of the Township Code places this decision in the hands of the township
central committee, not in anyone else. Plaintiffs cannot change this allocation of responsibility.
See, e.g., Baldacchino v. Thompson, 289 Ill. App. 3d 104, 113 (1997) (where the electors are
given a power under the Township Code, it is the electors, not the township’s board of trustees,
who must exercise that power); 2000 Ill. Atty. Gen. Op. No. 00-009 (Apr. 24, 2000) (where
the legislature has provided for the manner of selection of township officers, a township cannot
change the manner of selection by providing for the nomination and selection of township
officers on a nonpartisan basis).
¶ 20 Additionally, even if plaintiffs had the power to dictate the committee’s decision, we agree
with the trial court that plaintiffs have not demonstrated that holding a caucus meeting will
violate plaintiffs’ rights. To show a likelihood of success on the merits, a party does not have
to meet the same burden of proof that is required at the final hearing. Ford Motor Credit Co.
v. Cornfield, 395 Ill. App. 3d 896, 903 (2009). Instead, “a plaintiff need only raise a fair
question as to the existence of the right which [it] claims and lead the court to believe that [it]
will probably be entitled to the relief requested if the proof sustains [its] allegations.” (Internal
quotation marks omitted.) Ford Motor Credit Co., 395 Ill. App. 3d at 903. However, a
preliminary injunction “is an extraordinary remedy, and the complaint must show clearly that
the relief sought is warranted. Allegations supporting the claim must be positive, certain, and
precise. Mere opinion, conclusion, or belief will not suffice.” McErlean v. Harvey Area
Community Organization, 9 Ill. App. 3d 527, 529 (1972).
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¶ 21 In the case at bar, plaintiffs’ complaint is based on opinion and speculation, both as to the
state of the pandemic at the time of the caucus and as to defendants’ response to it. Defendants
have clearly expressed multiple times that they have no intention of holding a caucus meeting
that does not comply with the public health guidelines in effect at the time, whatever they may
be. However, plaintiffs nevertheless insist that there is no way that the caucus meeting can be
held safely. Plaintiffs, however, have provided no support for this blanket statement. Instead,
plaintiffs continually characterize the caucus meeting as “forcing hundreds of people to
congregate” in defiance of the governor’s orders, despite the fact that this is clearly not an
option that defendants contemplate. We are cognizant of the fact that the ultimate rules of
procedure to be followed at the caucus meeting are voted on by the participants in the caucus
meeting itself, and cannot be definitely known in advance. See 60 ILCS 1/45-50(a) (West
2018). However, the rules are initially proposed by the committee, which has represented that
it intends to comply with all public safety guidelines. Consequently, we cannot find that the
trial court abused its discretion in finding that plaintiffs’ general protestations are insufficient
to show a likelihood of success on the merits.
¶ 22 We recognize, however, that plaintiffs’ rights, including their right to assemble, are
implicated by defendants’ decision as to how to proceed. The first amendment to the United
States Constitution provides that Congress “shall make no law *** abridging the freedom of
speech, or of the press; or the right of people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. Const. amend. I. The fourteenth amendment
makes that prohibition applicable to the states. Meyer v. Grant, 486 U.S. 414, 420 (1988); U.S.
Const. amend. XIV. The United States Supreme Court “[has] held that the First Amendment,
among other things, protects the right of citizens ‘to band together in promoting among the
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electorate candidates who espouse their political views.’ ” Clingman v. Beaver, 544 U.S. 581,
586 (2005) (quoting California Democratic Party v. Jones, 530 U.S. 567, 574 (2000)).
Regulations burdening those rights must be carefully drafted, depending on the severity of the
burden. See Clingman, 544 U.S. at 586-87 (“Regulations that impose severe burdens on
associational rights must be narrowly tailored to serve a compelling state interest. [Citation.]
However, when regulations impose lesser burdens, a State’s important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory restrictions. [Citation.]” (Internal
quotation marks omitted.)).
¶ 23 In the case at bar, while defendants represent that they will comply with all public health
guidelines, should they ultimately choose not to, plaintiffs would be in a position where they
would be required to choose between their rights and their safety. While we do not anticipate
that defendants will flout the restrictions, we certainly understand plaintiffs’ fears and
reluctance to rely on such representations, without more. Consequently, while we affirm the
trial court’s denial of plaintiffs’ motion for a preliminary injunction, if defendants choose to
proceed with a caucus meeting, we order the trial court to ensure the safety of the participants
by imposing appropriate restrictions, based on the public health guidelines in effect at the time.
Specifically, the trial court’s order should include a requirement that defendants provide for a
method of remote participation in the caucus meeting for those people who do not desire to be
in attendance at a live caucus meeting. Those people who do desire to meet at an open meeting
will have the opportunity to do so, subject to the public health guidelines in effect at the time.
By providing both an open meeting and one through remote participation, the right to assemble
will be satisfied. The remote participation can occur through Zoom or through similar
technology. The court’s order must also require that defendants also ensure that any person
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who would otherwise be entitled to participate in the caucus meeting has the ability to
participate remotely, meaning that defendants must provide for a way for those without home
computers or sufficient internet connections to nonetheless be able to participate and have their
vote counted.
¶ 24 CONCLUSION
¶ 25 For the reasons set forth above, we affirm the trial court’s denial of plaintiffs’ motion for a
preliminary injunction, as plaintiffs have failed to establish a likelihood of success on the
merits. However, we order the trial court to ensure the safety of the participants by imposing
appropriate restrictions, including requiring defendants to provide for a method of remote
participation for those who do not desire to be at a live caucus meeting, should they choose to
proceed with a caucus meeting, as set forth in more detail above.
¶ 26 Affirmed with instructions.