Plotkin, Robert v. Ryan, George H. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1225
ROBERT PLOTKIN and BETTER GOVERNMENT
ASSOCIATION,
Plaintiffs-Appellants,
v.
GEORGE H. RYAN, CITIZENS FOR GEORGE RYAN
CAMPAIGN COMMITTEE, JESSE WHITE, in his official
capacity as Illinois Secretary of State, et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-C-53--James B. Zagel, Judge.
Argued November 28, 2000--Decided February 6, 2001
Before HARLINGTON WOOD, JR., DIANE P. WOOD, and EVANS,
Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. This civil
case arises in the midst of an ongoing federal
criminal investigation, commonly referred to as
"Operation Safe Road." Being investigated are
alleged fraudulent activities during the 1990s in
the Illinois Commercial Drivers’ License Program
as administered by the Illinois Secretary of
State’s Office while George H. Ryan was Secretary
of State. Ryan is now Governor of Illinois and
has not been charged in the investigation. Press
reports indicate that so far at least thirty-five
people have been convicted in connection with the
three-year-old investigation. See, e.g., Matt
O’Connor, Bauer Takes Plea Deal; Ryan pal admits
to ending probes, agrees to 6-month prison
sentence, Chi. Trib., Jan. 18, 2001, at 1. Eighteen
of these individuals were former state employees.
Id. The former head of corruption investigations
in the Secretary of State’s Office at the time in
question recently pleaded guilty to obstructing
a federal investigation. Id./1
The present case was filed in 1999 by the
Better Government Association ("BGA") and Robert
Plotkin, an Illinois citizen. It is alleged that
Secretary of State employees had been taking
bribes to issue commercial drivers’ licenses to
unqualified applicants in order to meet campaign
fundraising requirements imposed on them by some
employees of the Secretary of State’s Office in
connection with Ryan’s gubernatorial campaign.
The complaint further asserts that Secretary of
State employees were forced to engage in work for
Ryan’s campaign, often during regular work hours.
Plaintiffs argue that those patronage practices
violated their First and Fourteenth Amendment
rights as protected by 42 U.S.C. sec. 1983 and
further were in violation of the Shakman
decree./2 The relief sought varies from
injunctive and declaratory relief, to fines, the
issuance of a rule to show cause, damages, and
other appropriate relief. As to the Citizens for
George Ryan Campaign Committee, plaintiffs seek
the return of all money not shown to have been
lawfully raised./3
Defendants filed motions to dismiss principally
asserting a lack of standing on the part of
plaintiffs. Standing was claimed by plaintiffs on
the basis of Plotkin’s status as an Illinois
voter or, alternatively, as a user of Illinois
highways. The BGA claimed standing on the basis
of its members’ status as Illinois voters/4 and
also based on the fact that the organization
itself expended time and money monitoring and
investigating the alleged campaign fraud in the
Secretary of State’s Office. All the standing
claims advanced by plaintiffs were rejected by
the district court, which labeled plaintiffs as
no more than "concerned bystanders." The district
court considered other grounds it found to
support dismissal, but we need only consider
standing, not any alternative basis.
DISCUSSION
Article III standing is reviewed de novo, but
we accept any factual findings made by the
district court in resolving the standing question
unless clearly erroneous. Perry v. Village of
Arlington Heights, 186 F.3d 826, 828 (7th Cir.
1999).
The plaintiffs look to Shakman v. Democratic
Organization of Cook County, 435 F.2d 267 (7th
Cir. 1970) ("Shakman I"), for standing support;
however, since our decision in Shakman I, the
Supreme Court has reexamined justiciability and
its limitations under the case-and-controversy
provision of Article III. See Shakman v. Dunne,
829 F.2d 1387, 1393 (7th Cir. 1987) ("Shakman
II"). We therefore must analyze plaintiffs’
claims of standing under the latest criteria set
out by the Supreme Court. Given the thorough
examination of standing by this court in Shakman
II, we began with it. The court in Shakman II
found the most comprehensive summary of the
applicable standing criteria to be set forth in
Allen v. Wright, 468 U.S. 737, 751 (1984), as
follows: "A plaintiff must allege personal injury
fairly traceable to the defendant’s allegedly
unlawful conduct and likely to be redressed by
the requested relief."/5 The Court expanded on
this concept in Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). Under Lujan, a party
invoking federal jurisdiction must show (1)
"injury in fact;" (2) a causal connection between
the injury and the challenged conduct, i.e.,
"traceability;" and (3) that it is "’likely,’ as
opposed to merely ’speculative,’ that the injury
will be ’redressed by a favorable decision.’" Id.
at 560-61 (citations omitted). Plaintiffs and
defendants disagree as to whether the present
case satisfies those easily-stated criteria,
which can generate different views in their
application. In resolving this dispute, we are
also guided by the teaching of Simon v. Eastern
Kentucky Welfare Rights Organization, 426 U.S.
26, 44 (1976), which states that "unadorned
speculation will not suffice to invoke the
federal judicial power." These principles are not
confined to the facts of any particular case, but
are broadly relevant to standing in any Article
III controversy.
It is obvious to us as we review the claims
alleged by plaintiffs that, in spite of
plaintiffs’ good intentions, the federal standing
requirements cannot be met. First, plaintiffs’
claims of standing based on their status as
voters fail based on a lack of redressability.
The alleged injury-in-fact for these claims is
that defendants’ illegal conduct skewed the
election results in favor of George Ryan and, in
the process, diluted the impact of their votes.
Plaintiffs concede that they cannot have the
results of the 1998 gubernatorial election set
aside by this suit, but ask for injunctive
relief, findings of contempt, and the imposition
of fines. In their reply brief, plaintiffs argue
that they have voter standing based on the
Supreme Court’s recent decision in Friends of the
Earth, Inc. v. Laidlaw Environmental Services,
Inc., 120 S. Ct. 693 (2000)./6 However, while
the Court in Laidlaw, 120 S. Ct. at 707,
recognized that the deterrent effect of civil
penalties "afford[s] redress to citizen
plaintiffs who are injured or threatened with
injury as a consequence of ongoing unlawful
conduct," it expressly acknowledged the continued
validity of Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1998), which
"established that citizen suitors lack standing
to seek civil penalties for violations that have
abated by the time of suit." Laidlaw, 120 S. Ct.
at 707 (citing Steel Co., 523 U.S. at 106-07)./7
At the time this suit was filed, on January 7,
1999, the election had concluded, and Ryan, a
Republican, was the Governor-elect. Jesse White,
the Democratic candidate, had been elected
Secretary of State. Plaintiffs make no
allegations that the bribes-for-commercial-
drivers’-licenses scheme is continuing under
Secretary White’s administration, contending only
that "[t]here exists in the Secretary of State’s
office a deep-seated culture and policy or custom
of intertwining and requiring coerced partisan
political work together with the official duties
of the office," and as a result, "[t]here is a
substantial likelihood that without remedial
steps being taken that such or similar unlawful
conduct will continue." These allegations are
purely speculative.
Furthermore, plaintiffs ask that Ryan’s campaign
committee be forced to return any funds not shown
to be lawfully raised. Upon questioning at oral
argument, counsel for plaintiffs suggested that
the money be returned to either the employees or
the individuals who gave the bribes in order to
send a message to Ryan and the committee that
they cannot profit from their alleged wrongdoing.
It is unclear how such action would redress the
alleged injury-in-fact. That a plaintiff may
derive satisfaction from the fact that a
wrongdoer gets his just desserts does not
constitute an acceptable Article III remedy.
Steel Co., 523 U.S. at 107. No case has gone so
far as we are asked to go by plaintiffs in this
case, and we are not free to do so. Plaintiffs
bear the burden of establishing standing, and
each element, including redressability, must be
supported by more than unadorned speculation.
Because none of the relief sought would likely
remedy the alleged injury-in-fact, plaintiffs
fail to demonstrate redressability, a necessary
element for Article III standing. Therefore, we
need not address the other two required factors.
Plaintiffs’ claims based on voter standing fail.
We need not reach the broader question whether
there is some kind of remedy, under state or
federal law, available to Illinois voters to
address the problem of the misuse of state worker
time when those workers are conscripted by their
supervisors into an alleged captive army of
campaign workers. Additionally, this case is
distinguishable from the Supreme Court’s decision
in Rutan v. Republican Party of Illinois, 497
U.S. 62 (1990), because in the present case no
member of the so-called "captive army" is a
plaintiff.
Plotkin’s claim of standing based on the use of
Illinois highways must also fail. As the Supreme
Court noted in Lujan, in order to satisfy the
injury requirement, a plaintiff must show that he
has suffered an invasion of a legally-protected
interest that is both "(a) concrete and
particularized and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at
560 (internal quotations and citations omitted).
Plotkin argues that he has suffered injury in the
form of an increased risk of accidents because
unqualified drivers have illegally obtained
commercial drivers’ licenses; however, this risk
is too speculative and generalized to constitute
an injury-in-fact for standing purposes. If
Plotkin allegedly suffers injury from an
increased risk of accident, then so do all people
using Illinois highways, including the judges of
this court as was mentioned at oral argument.
There are necessarily many outside unknown
influences affecting all aspects of these
standing concepts advanced by plaintiffs.
Finally, the BGA claims that it has standing as
an organization, apart from its members, simply
by reason of its expenditure of time and money in
pursuing the alleged fraud. However, ordinary
expenditures as part of an organization’s purpose
do not constitute the necessary injury-in-fact
required for standing. The BGA in the past has
been instrumental in advancing government reforms
in Illinois by using investigators and attorneys
along with journalistic techniques and litigation
to expose corruption./8 This decision does not
curtail those regular techniques of the BGA. It
only means good intentions are not enough for
federal standing.
The district court characterized it well when
it said that "plaintiffs are simply no more than
concerned bystanders and do not have standing to
challenge these actions in this court." Were the
requirements of standing to be compromised as
suggested in this suit, it would no longer be a
useful jurisdictional concept.
The parties shall bear their own costs.
AFFIRMED.
/1 None of the cases involved have so far reached
this court.
/2 See Shakman v. Democratic Org. of Cook County,
481 F. Supp. 1315 (N.D. Ill. 1979).
/3 The State of Illinois in the past has seen some
alleged corruption in high places. See, e.g.,
United States v. Ladd, 218 F.3d 701 (7th Cir.
2000); United States v. Martin, 195 F.3d 961 (7th
Cir. 1999); United States v. Isaacs, 493 F.2d
1124 (7th Cir. 1974); United States v. Downey,
195 F. Supp. 581 (S.D. Ill. 1961); Robert
Hartley, Still a Mystery Man; The death of Paul
Powell in 1970 had a big impact on public
affairs, State J. Reg. Springfield, Illinois, Oct. 8,
2000, at 17.
/4 As the Supreme Court noted in Friends of the
Earth, Inc. v. Laidlaw Environmental Services,
Inc., 120 S. Ct. 693 (2000),
[a]n association has standing to bring suit on
behalf of its members when its members would
otherwise have standing to sue in their own
right, the interests at stake are germane to the
organization’s purpose, and neither the claim
asserted nor the relief requested requires the
participation of individual members in the
lawsuit.
Id. at 704 (citing Hunt v. Washington State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)).
/5 Later cases have referred to this test as the
"irreducible constitutional minimum of standing."
See, e.g., Bennett v. Spear, 520 U.S. 154, 162
(1997) (internal quotations and citations
omitted). The Shakman decree cannot create
standing in cases in which the requirements of
Article III are not satisfied.
/6 Plaintiffs address Laidlaw in their initial brief
in connection with Plotkin’s claim of standing
based on his use of Illinois highways.
/7 Plaintiffs argue that this position gives
politicians "carte blanche unless a suit can be
filed and brought to judgment while the election
is going on." However, the Court in Laidlaw
highlighted the difference between standing,
which must exist at the time of the commencement
of the litigation, and mootness. See Laidlaw, 120
S. Ct. at 708-10.
/8 For further information, see the BGA web site,
http://www.bettergov.org.