Tobin for Governor v. Illinois State Board of Elections , 268 F.3d 517 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3097
TOBIN FOR GOVERNOR, JEAN L. BAKER,
RAYMOND A. DUBIEL, et al.,
Plaintiffs-Appellants,
v.
ILLINOIS STATE BOARD OF ELECTIONS,
and its members, individually and in
their official capacities, HANNELORE
HUISMAN, KENNETH R. BOYLE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2713--Robert W. Gettleman, Judge.
ARGUED MAY 7, 2001--DECIDED October 5, 2001
Before FLAUM, Chief Judge, and RIPPLE and
DIANE P. WOOD, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs in
this case are several Illinois residents
who signed a petition to place a slate of
candidates from the Libertarian Party of
Illinois ("LPI") on Illinois’ general
election ballot in November 1998, and To
bin for Governor, a political committee
formed for the purpose of electing
Libertarian candidate James L. Tobin to
the governorship of Illinois
(collectively "Tobin for Governor").
Tobin for Governor brought this action
under 42 U.S.C. sec. 1983, and it alleged
that the Illinois State Board of
Elections ("ISBE" or "the Board") and its
individual members (collectively "the
defendants") violated the First and
Fourteenth Amendments by refusing to
certify and to place on the ballot the
LPI’s slate of candidates. It sought com
pensatory damages and a declaration that
the ISBE’s decision was null and
void./1 The defendants moved to dismiss
the complaint. The district court
dismissed the ISBE and the individual
members in their official capacities on
the ground of Eleventh Amendment
immunity. It also dismissed the claims
for damages against the board members in
their individual capacities on the ground
that they were entitled to quasi-judicial
absolute immunity. Lastly, the district
court dismissed the claim for declaratory
relief as moot. Tobin for Governor now
appeals. For the reasons set forth in the
following opinion, we affirm the judgment
of the district court.
I
BACKGROUND
A. Facts
Prior to the November 3, 1998, general
election, the LPI submitted a nomination
petition to the ISBE in an attempt to
establish itself as a new, statewide
political party. The nomination petition
sought to certify the LPI’s slate of
candidates for statewide offices and to
have those candidates’ names listed on
Illinois’ general-election ballot. Over
60,600 signatures appeared on the
nomination petition. On or about August
10, 1998, objections to the LPI’s
petition were filed. Hearings on the
objections began on August 24, 1998,
before a duly appointed hearing officer
and continued intermittently throughout
the summer and fall of 1998. On October
6, 1998, the hearing officer issued an
opinion that sustained the objections in
part but also determined that the
petition had 26,610 valid signatures.
Because a new political party only was
required to submit 25,000 valid
signatures in order to appear on the
ballot, see 10 ILCS 5/10-2, the hearing
officer concluded that the LPI’s slate of
candidates ought to be certified.
On October 12, 1998, the general counsel
to the ISBE wrote an opinion letter to
the board members in which he stated that
he had "no reason to oppose any
recommendation" in the hearing officer’s
decision and that the hearing officer had
"correctly applied the applicable law."
R.7 at A35. Nevertheless, on October 13,
1998, the Board struck an additional
4,285 signatures, which left only 22,325
valid signatures on the petition.
Although the Board issued a written
opinion, it did not explain the basis for
its decision to strike these additional
signatures. Once the Board struck the
additional signatures, the number of
valid signatures remaining on the
petition did not meet the statutory
requirement of 25,000 signatures.
Therefore, the Board refused to certify
the LPI’s slate of candidates, and those
candidates were unable to appear on the
general election ballot in November 1998.
B. Earlier Proceedings
1. Related State Court Proceedings
On October 23, 1998, the Libertarian
candidates whose names did not appear on
the ballot as a result of the Board’s
decision filed a petition for judicial
review in the Circuit Court of Cook
County. The court determined that it
lacked jurisdiction for two reasons: (1)
the LPI was a necessary party that had
not been named and (2) the candidates did
not serve the objectors or the LPI with a
copy of the petition for judicial review
within ten days of the Board’s decision,
as required by 10 ILCS 5/10-10.1.
Thecircuit court therefore dismissed the
candidates’ petition. The Appellate Court
of Illinois affirmed the circuit court’s
judgment, and the Supreme Court of
Illinois denied the candidates’ petition
for leave to appeal.
2. Proceedings in the District Court
On April 26, 1999, Tobin for Governor
filed this action in federal district
court against the ISBE and its members in
their individual and official capacities.
The complaint alleged that the ISBE’s
refusal to certify the LPI’s slate of
candidates violated Tobin for Governor’s
First Amendment rights to associate and
to vote effectively and also violated the
Equal Protection Clause of the Fourteenth
Amendment. Tobin for Governor asked for
money damages as well as for a
declaratory judgment that the ISBE’s
decision was unconstitutional and void.
The defendants moved to dismiss the
complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The
district court dismissed the ISBE and its
members in their official capacities on
the ground of Eleventh Amendment
immunity./2 The court then dismissed
Tobin for Governor’s claims for monetary
relief against the board members in their
individual capacities because it
determined that the board members were
entitled to quasi-judicial absolute
immunity. The court found that the board
members were acting in an adjudicative
capacity when they evaluated the
nomination petition and that the
necessary safeguard of judicial review
was available, thus making absolute
immunity appropriate.
Lastly, the court held that Tobin for
Governor’s request for a declaration that
the Board’s decision was unconstitutional
and void was moot because the election
already had taken place by the time Tobin
for Governor had filed suit. Following
the district court’s judgment, Tobin for
Governor filed this appeal.
II
DISCUSSION
We review the district court’s grant of
a motion to dismiss de novo. See Crenshaw
v. Baynerd, 180 F.3d 866, 868 (7th Cir.),
cert. denied, 528 U.S. 952 (1999). We
accept all of the well-pleaded factual
allegations in the plaintiff’s complaint
as true and draw all reasonable
inferences in favor of the plaintiff. See
id. We shall affirm the district court’s
dismissal of the complaint only if it
appears beyond doubt that the plaintiff
cannot prove any set of facts that would
entitle it to relief. See Conley v.
Gibson, 355 U.S. 41, 45-46 (1957);
Crenshaw, 180 F.3d at 868.
Tobin for Governor argues that the
district court erred in granting the
board members absolute immunity. It also
contends that its request for a
declaratory judgment was not moot and
that the district court erred in
dismissing it on those grounds. We
examine each of these arguments in turn.
A. Absolute Immunity
1.
We must take a functional approach to
determining whether absolute immunity is
appropriate. See Forrester v. White, 484
U.S. 219, 224 (1988); Cleavinger v.
Saxner, 474 U.S. 193, 201 (1985). Title
or rank alone is an insufficient basis on
which to confer absolute immunity;
instead, whether absolute immunity ought
to be afforded must be determined by the
nature of the responsibilities of the
official in question. See Forrester, 484
U.S. at 224 ("[W]e examine the nature of
the functions with which a particular
official or class of officials has been
lawfully entrusted, and we seek to
evaluate the effect that exposure to
particular forms of liability would
likely have on the appropriate exercise
of those functions."); Cleavinger, 474
U.S. at 201. Absolute immunity is
available to members of quasi-judicial
adjudicatory bodies when they perform
duties that are functionally comparable
to those of a judicial officer. See Butz
v. Economou, 438 U.S. 478, 512-13 (1978);
Crenshaw, 180 F.3d at 868. "[T]he nature
of the adjudicative function requires a
judge frequently to disappoint some of
the most intense and ungovernable desires
that people can have." Forrester, 484
U.S. at 226. Thus, the cloak of immunity
is designed to prevent a situation in
which decision-makers "act with an excess
of caution or otherwise . . . skew their
decisions in ways that result in less
than full fidelity to the objective and
independent criteria that ought to guide
their conduct," id. at 223, out of a fear
of litigation or personal monetary
liability, see Crenshaw, 180 F.3d at 868.
"[T]he official seeking absolute
immunity bears the burden of showing that
such immunity is justified for the
function in question." Burns v. Reed, 500
U.S. 478, 486 (1991). Toward that end,
the board members argue that they are
entitled to absolute immunity because
they were acting in an adjudicative
capacity when they considered and ruled
on the objections to the nomination
petition. We agree.
Although the ISBE is charged with many
diverse responsibilities with respect to
the administration of elections, the
Election Code of Illinois specifically
gives it the statutory duty to "hear and
pass upon objections to the nominations
of candidates for State offices." 10 ILCS
5/10-9(1)./3 The statutory provision
that governs the means by which the ISBE
may evaluate petitions gives the ISBE
many of the same powers as a court:
The electoral board shall have the power
to administer oaths and to subpoena and
examine witnesses and at the request of
either party the chairman may issue
subpoenas requiring the attendance of
witnesses and subpoenas duces tecum
requiring the production of such books,
papers, records and documents as may be
evidence of any matter under inquiry
before the electoral board, in the same
manner as witnesses are subpoenaed in the
Circuit Court.
10 ILCS 5/10-10. In this case, the method
by which the petition and the objections
to it were evaluated was remarkably like
a trial. First, written objections to the
petition were filed. A hearing on the
objections was scheduled, and the parties
were given notice of the hearing date.
Both the objectors and the candidates
were represented by attorneys at the
hearing and were given the opportunity to
present evidence in support of their
cases. The hearing officer, who
functioned much like a magistrate judge,
evaluated the evidence and the arguments,
considered their merits in light of the
relevant law, and issued a
recommendation. The Board then considered
the hearing officer’s recommendation and
decided whether to accept it, just as a
district court would do. In light of the
nature of these proceedings, we believe
it is an inescapable conclusion that the
board members were acting in the
functional capacity of judges when they
ruled on the objections to the nomination
petition.
Moreover, the conditions under which the
board members must operate also support
an award of absolute immunity. The
Board’s task of determining the validity
of nomination petitions is likely to be
controversial and to come under intense
political scrutiny. To protect the integ
rity of the electoral process, it is
necessary to protect the board members
from harassment and intimidation so that
they can exercise their independent
judgment. See Cleavinger, 474 U.S. at 202
(listing "the need to assure that the
individual can perform his functions
without harassment or intimidation" as a
factor to be considered in the absolute
immunity analysis); see also Burns, 500
U.S. at 494 ("Absolute immunity is
designed to free the judicial process
from the harassment and intimidation
associated with litigation." (emphasis in
original)).
2.
Our conclusion that the board members
are entitled to absolute immunity is
supported by a line of cases in which we
have awarded absolute immunity to members
of state agencies operating in other
contexts. For instance, we have granted
the members of the Indiana Civil Rights
Commission absolute immunity for their
decision not to investigate a charge of
discrimination; we determined that they
were acting in an adjudicatory capacity
when they concluded that they lacked
jurisdiction to review and to consider
the charge. See Crenshaw, 180 F.3d at
868. We have held that a local liquor
control commissioner acted in a judicial
capacity when he revoked a liquor
license, which entitled him to absolute
immunity. See Reed v. Village of
Shorewood, 704 F.2d 943, 951-52 (7th Cir.
1983)./4 We also have granted absolute
immunity to members of a prison review
board who revoked a plaintiff’s
supervised release after they held
ahearing to evaluate whether revocation
was proper. See Wilson v. Kelkhoff, 86
F.3d 1438, 1443-45 (7th Cir. 1996). We
held that the review board members were
absolutely protected from suit for their
failure (1) to provide the plaintiff
sufficient notice of the hearing and (2)
to allow the plaintiff to present
evidence and witnesses. See id. at 1445.
Similarly, we have granted absolute
immunity to state parole officials with
respect to their decisions to grant,
deny, or revoke parole, see, e.g.,
Trotter v. Klincar, 748 F.2d 1177, 1181-
83 (7th Cir. 1984), and for their
decision as to when to schedule a parole-
revocation hearing, see Thompson v. Duke,
882 F.2d 1180, 1184 (7th Cir. 1989)./5
Our decision in Trotter was based in part
on the fact that the parole officials’
functions were "analogous to judicial
action relating to the conduct of trial
proceedings and to rulings on motions of
counsel." Trotter, 748 F.2d at 1182. In
addition, we have granted the Indiana
attorney general absolute immunity when
he acted in an adjudicatory function by
determining whether to approve a contract
under a statutory provision that required
him to ensure the contract’s legality.
See Mother Goose Nursery Schs., Inc. v.
Sendak, 770 F.2d 668, 670-75 (7th Cir.
1985)./6 With respect to the case
before us, we believe that the ISBE’s
conduct in evaluating the LPI’s
nomination petition falls within the
heartland of what these cases have
established as quasi-judicial
adjudicatory functions.
3.
Nevertheless, Tobin for Governor
maintains that an award of absolute
immunity would not be appropriate in this
case because (1) there is no common-law
or historical basis for it; (2) this case
is not an instance of vexatious
litigation; (3) there is no effective
check on the board members’ potential
abuse of authority; and (4) as political
appointees of the major political
parties, the board members are not
sufficiently insulated from political
pressures. We are unpersuaded by these
arguments. We can dispose easily of the
first two because they misapprehend the
fundamental nature of quasi-judicial
absolute immunity. Although Tobin for
Governor correctly asserts that the ISBE
is a statutory creation with no common-
law history of immunity for its members,
this assertion overlooks the fact that
the board members function in a capacity
equivalent to that of judges, and judges
have an extensive common-law history of
enjoying absolute immunity for their
judicial acts. See, e.g., Cleavinger, 474
U.S. at 199-200 (discussing the common-
law history of judicial immunity and
stating that "’[f]ew doctrines were more
solidly established at common law than
the immunity of judges from liability for
damages for acts committed within their
judicial jurisdiction’" (quoting Pierson
v. Ray, 386 U.S. 547, 553-54
(1967))).Indeed, the Supreme Court itself
has granted absolute immunity to
administrative law judges, whose
positions also are statutory creations.
See Butz, 438 U.S. at 514.
Tobin for Governor’s second contention--
that its case is not an instance of
vexatious litigation--does not properly
take account of the scope of an award of
absolute immunity. As we already have
indicated, absolute immunity is available
to quasi-judicial officers because the
threat of being subjected to any
litigation impedes the officers’ ability
to engage in independent and fearless
decision-making. The possibility of a
case-by-case exception that would permit
non-vexatious suits to proceed would
destroy the protection that absolute
immunity provides to the judicial
process. Even if Tobin for Governor’s
suit is meritorious-- and therefore not
vexatious--it cannot pierce the shield of
absolute immunity because judicial
officers are entitled to that immunity
even when they act in error, maliciously,
or in excess of their authority. See,
e.g., Stump v. Sparkman, 435 U.S. 349,
356 & 359 (1978) ("A judge is absolutely
immune from liability for his judicial
acts even if his exercise of authority is
flawed by the commission of grave
procedural errors.").
In light of the structure of the
Illinois election code, we also are
unable to accept Tobin for Governor’s
assertion that there are no effective
checks on the board members’ potential
abuse of authority. Quite to the
contrary, Illinois’ election code
specifically provides for judicial review
of the Board’s decision in the state
circuit courts. See 10 ILCS 5/10-
10.1;/7 see also Cleavinger, 474 U.S.
at 202 (listing "the correctability of
error on appeal" as one factor that
favors a grant of absolute immunity).
Tobin for Governor suggests that the
board members have an incentive to delay
their decision until it will be virtually
impossible to obtain review before the
election, and it points to the
Libertarian candidates’ attempt to obtain
judicial review following the Board’s
decision in this case as support for its
contention. However, the LPI candidates
were unsuccessful in obtaining review
because they did not follow the
procedural requirements of the election
code, not because the Board unduly and
purposefully delayed its decision. Not
only did the Libertarian candidates fail
to comply with the time requirements of
the election code, but they failed to
name the LPI as a necessary party and
thereby deprived the circuit court of
jurisdiction. Had the candidates complied
with the statute’s terms, they would have
obtained review.
Moreover, the election code contains
provisions that help guard against the
kind of stonewalling that Tobin for
Governor anticipates. Nomination
petitions must be filed approximately
three months prior to the election. See
10 ILCS 5/10-6. Any objections to the
nomination petitions must be made in
writing within five business days after
the last day for filing the nomination
petition. See 10 ILCS 5/10-8. Within
twenty-four hours of receiving the
objections, the chairman of ISBE must
notify the candidates whose petitions
were objected to that the ISBE is
required to meet and pass upon the
validity of the petitions, and he must
give them notice of the date and time of
the hearing. See 10 ILCS 5/10-10. The
ISBE must hold its hearing not less than
three nor more than five days from the
time it received the objections. See id.
Within ten days of the Board’s
certification decision, the candidate
must file a petition for judicial review
in the circuit court. See 10 ILCS 5/10-
10.1. Once a candidate has filed a
petition for judicial review, the court
must hold a hearing on the petition
within thirty days of the filing, and the
court is directed by statute to reach a
decision "promptly after such hearing."
Id. These statutory provisions should
allow candidates to obtain judicial
review prior to the election. If,
however, the Board does not issue its
decision in sufficient time for the
candidate to pursue the normal avenues of
judicial review prior to the election,
the candidate may seek a writ of mandamus
in the Supreme Court of Illinois. See
Dooley v. McGillicudy, 345 N.E.2d 102,
104 (Ill. 1976) ("’In cases involving the
election process, where the time factor
alone would usually render an appeal
futile, this court has seen fit to grant
original writs of mandamus.’" (emphasis
in original) (quoting People ex rel.
Meyer v. Kerner, 219 N.E.2d 617, 619
(1966))). In light of these various
methods of ensuring judicial review prior
to the election, we do not believe that
the candidates’ inability to obtain
review of the Board’s decision here--an
inability that resulted from their own
procedural mistakes--is a proper basis on
which to deny the board members absolute
immunity.
Lastly, we are unwilling to accept Tobin
for Governor’s unsupported allegation
that the board members will not treat
minority-party and independent candidates
fairly because the members have too great
a stake in advancing the interests of the
major political parties to which they
belong./8 Although the board members
are appointed to the ISBE by the
governor, whose decision may include
political considerations, "political or
electoral pressure alone cannot deprive
government officials of absolute
immunity." Brown v. Griesenauer, 970 F.2d
431, 439 (8th Cir. 1992). As the Eighth
Circuit has pointed out, if the rule were
otherwise, state judges who are elected
would not be entitled to absolute
immunity. See id. Instead, "for purposes
of immunity analysis, the insulation-
from-political-influence factor does not
refer to the independence of the
government official from the political or
electoral process, but . . . to the
independence of the government official
as a decision-maker." Id.
There are several provisions in the
Illinois election code that insulate the
board members from political influences
and that protect their independence as
decision-makers. Although the board
members are appointed by the governor,
they serve for a term of years, not at
the pleasure of the governor. See 10 ILCS
5/1A-3.1. Perhaps more importantly, the
board members may not "engage in any
partisan political activity whatsoever;"
may not contribute to political parties,
candidates, or organizations financially
or through services; and may not "become
a candidate for nomination for, or
election to, or accept appointment to any
public office" so long as they hold their
position on the ISBE. 10 ILCS 5/1A-13.
These provisions help insulate the board
members’ decision-making process from
political influences, which weighs in
favor of granting absolute immunity. See
Cleavinger, 474 U.S. at 202 (listing
"insulation from political influence" as
a factor that can support an award of
absolute immunity). We simply are
unwilling to assume that the board
members cannot be impartial because they
retain their own party affiliation.
In conclusion, the board members act in
the functional capacity of judges when
they rule on the validity of nomination
petitions, which entitles them to quasi-
judicial absolute immunity. Tobin for
Governor’s arguments do not persuade us
that the result should be otherwise./9
Consequently, the district court
correctly dismissed the claims for
monetary relief against the board members
in their individual capacities.
B. Justiciability
Tobin for Governor maintains that the
district court erred in dismissing as
moot its request for a declaratory
judgment that the Board’s decision to
deny the LPI access to the ballot was
unconstitutional and void. In Tobin for
Governor’s view, the Board’s written
decision did not comply with the election
code because it did not state which
objections to the nomination petition it
sustained, and this problem is capable of
repetition and yet will evade review. The
defendants respond that Tobin for
Governor does not have standing to bring
this claim because (1) its injury is
derivative of the LPI’s and the
candidates’ inability to obtain ballot
access and (2) it is speculative to
assume that Tobin for Governor will be
injured the same way in the future.
"It goes without saying that those who
seek to invoke the jurisdiction of the
federal courts must satisfy the threshold
requirement imposed by Art. III of the
Constitution by alleging an actual case
or controversy." City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983).
"Justiciability concerns not only the
standing of litigants to assert
particular claims, but also the
appropriate timing of judicial
intervention." Renne v. Geary, 501 U.S.
312, 320 (1991). Tobin for Governor’s
claim for declaratory relief is
nonjusticiable on two grounds: Tobin for
Governor lacks standing to bring this
claim, and the claim is now moot.
1. Standing
To establish standing, a plaintiff must
show (1) injury in fact, meaning an
invasion of a legally protected interest
that is concrete and particularized,
actual or imminent, and not conjectural
or hypothetical; (2) a causal connection
between the injury and the conduct
complained of such that the injury is
fairly traceable to the defendant’s
actions; and (3) that a favorable
decision is likely to redress the injury.
See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992); Sierakowski v.
Ryan, 223 F.3d 440, 442-43 (7th Cir.
2000). With respect to the injury in fact
requirement, the plaintiff must establish
that he has sustained or is immediately
in danger of sustaining some direct
injury. See Lyons, 461 U.S. at 101-02;
Sierakowski, 223 F.3d at 443. "Abstract
injury is not enough." Lyons, 461 U.S. at
101. Moreover, "[p]ast exposure to
illegal conduct does not in itself show a
present case or controversy" regarding
prospective equitable relief. O’Shea v.
Littleton, 414 U.S. 488, 495 (1974). A
plaintiff’s speculation that he may
suffer the same injury at some time in
the future is insufficient to establish
standing. See Lyons, 461 U.S. at 105;
Sierakowski, 223 F.3d at 444.
Tobin for Governor’s assertion that it
is likely to be injured in the future in
the same way it was injured in this case
is purely speculative. The gravamen of
Tobin for Governor’s complaint is that
the Board committed serious procedural
errors in refusing to certify the LPI’s
slate of candidates, that those errors
infringed on Tobin for Governor’s
constitutional rights, and that the Board
is likely to make the same procedural
errors in the future. However, Tobin for
Governor cannot demonstrate a "realistic
threat" that it will be subject to the
same procedural errors in the future.
Perry v. Sheahan, 222 F.3d 309, 313 (7th
Cir. 2000). In order for Tobin for
Governor to be subject to the same
injuries it claims to have suffered in
the last election, several contingencies
would have to occur during the next
election. Jim Tobin and the other
Libertarian candidates would have to
decide to run for state office, they
would have to collect over 25,000
signatures, they would need to submit
those signatures to the Board, a hearing
officer would need to determine that
those signatures were sufficient, the
Board then would have to override the
hearing officer’s determination, and the
Board would have to issue a written
opinion that did not describe precisely
the objections that it sustained. We have
no basis on which to conclude that each
of these contingencies will recur during
the next election. Although past wrongs
"may be evidence that future violations
are likely to occur[,] . . . in this case
the allegations regarding past conduct
still leave us with bare speculation"
about what will occur during the next
election. Sierakowski, 223 F.3d at 445
(internal citations omitted).
Consequently, Tobin for Governor has
failed to establish that it has "the
requisite personal stake in the outcome
of this litigation to establish standing"
to seek declaratory relief. Id. at 444.
2. Mootness
Tobin for Governor’s claim for
declaratory relief also is nonjusticiable
because it is moot. A case is moot when
it no longer presents a live case or
controversy. See Bd. of Ed. of Downers
Grove Grade Sch. Dist. No. 58 v. Steven
L., 89 F.3d 464, 467 (7th Cir. 1996). The
November 1998 election had come and gone
by the time Tobin for Governor filed its
action in the district court. Thus, the
relief that Tobin for Governor requested-
-a declaration that the Board’s decision
was unconstitutional and void--would have
no impact on the parties to this suit or
on the results of the November 1998
election. We are well aware that the
passage of an election does not
necessarily render an election-related
challenge moot and that such challenges
may fall within the "capable of
repetition yet evading review" exception
to the mootness doctrine. See Moore v.
Ogilvie, 394 U.S. 814, 816 (1969);
Stewart v. Taylor, 104 F.3d 965, 969 (7th
Cir. 1997). This, however, is not such a
case. The cases that traditionally have
fallen within the "capable of repetition"
exception have involved challenges to the
validity of statutory provisions that
will continue to operate past the
election in question and that will burden
future candidates in future
elections./10 In those circumstances,
the challenge reflects a "continuing
controversy," see Moore, 394 U.S. at 816,
and "[t]he construction of the statute,
an understanding of its operation, and
possible constitutional limits on its
application, will have the effect of
simplifying future challenges, thus
increasing the likelihood that timely
filed cases can be adjudicated before an
election is held," Storer v. Brown, 415
U.S. 724, 737 n.8 (1974). Tobin for
Governor’s challenge, however, is not to
any statutory provision that will
continue to operate past the November
1998 election. Instead, Tobin for
Governor challenges the particular
procedures by which the Board issued its
decision in the past election. Because
the Board’s ruling on the LPI’s 1998 nom
ination petition--and hence its alleged
procedural oversights--was a one-time
decision, we are unable to conclude that
the issues Tobin for Governor has raised
with respect to that decision are of a
continuing nature.
Moreover, the "capable of repetition"
exception applies only when (1) the
challenged action is too short in
duration to be fully litigated prior to
its cessation or expiration, and (2)
there is a reasonable expectation that
the same complaining party will be
subjected to the same action again. See
Il. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 187 (1979)
(quoting Weinstein v. Bradford, 423 U.S.
147, 149 (1975)). Neither of these
conditions is satisfied in this case.
First, a controversy of this sort does
not necessarily evade review. As we
already have discussed, judicial review
of the Board’s decision is available by
statute if the proper procedural steps
are followed, and the state courts to
which that review is directed can order a
new election if the case is not fully
litigated prior to election day. It was
only the Libertarian candidates’
procedural missteps that prevented
judicial review of the Board’s decision
here, which we believe is insufficient to
bring this case within the "evading
review" requirement of the exception.
Further, we do not believe that there is
a reasonable expectation that Tobin for
Governor will find itself in this same
situation in the future. As we discussed
with respect to the standing inquiry,
numerous contingencies would need to
occur before Tobin for Governor would
find itself subjected to these same
injuries again. Because we believe it is
pure speculation that these contingencies
all will reoccur, the "capable of
repetition" exception to the mootness
doctrine does not apply.
Tobin for Governor does not have
standing to pursue its claim for
declaratory relief nor does it present
the court with a live case or
controversy. Therefore, the district
court did not err in dismissing Tobin for
Governor’s claim for declaratory relief.
Conclusion
Tobin for Governor may not sue the
members of the ISBE in their individual
capacities because they are entitled to
quasi-judicial absolute immunity. Tobin
for Governor’s claim for declaratory
relief is nonjusticiable because Tobin
for Governor lacks standing and because
the claim is moot. We therefore affirm
the judgment of the district court.
AFFIRMED
FOOTNOTES
/1 Tobin for Governor also sought a declaration that
10 ILCS 5/10-4 was unconstitutional insofar as it
required petition circulators to be registered
voters. The district court held that the chal-
lenged portion of Illinois’ election code was
unconstitutional, and the defendants initially
cross-appealed that judgment. However, we held a
similar provision of Illinois’ election code
unconstitutional in Krislov v. Rednour, 226 F.3d
851, 858-66 (7th Cir. 2000), cert. denied, 121 S.
Ct. 1085 (2001) (holding 10 ILCS 5/7-10 unconsti-
tutional). Following the Supreme Court’s denial
of certiorari in Krislov, the defendants volun-
tarily dismissed their cross-appeal. Therefore,
we need not discuss this issue further.
/2 Tobin for Governor does not appeal this aspect of
the district court’s judgment.
/3 The election code requires the ISBE to "take up
the question[s] as to whether or not" the nomina-
tion petitions "are in proper form, and whether
or not they were filed within the time and under
the conditions required by law." 10 ILCS 5/10-10.
The ISBE also must decide whether the objections
to the nomination petitions ought to be sus-
tained. See id.
/4 Other circuits, as well, have granted members of
professional licensing boards absolute immunity
for their actions during disciplinary proceed-
ings. See, e.g., Beck v. Tex. State Bd. of Dental
Exam’rs, 204 F.3d 629, 633-36 (5th Cir.) (grant-
ing absolute immunity to members of the Texas
State Board of Dental Examiners for their deci-
sion to revoke the plaintiff’s license to prac-
tice dentistry), cert. denied, 531 U.S. 871
(2000); Mishler v. Clift, 191 F.3d 998, 1004-08
(9th Cir. 1999) (collecting cases) (holding that
the Nevada Board of Medical Examiners was enti-
tled to absolute immunity for acts occurring
during the disciplinary hearing process, includ
ing holding hearings, taking evidence, and adju-
dicating the dispute); Romano v. Bible, 169 F.3d
1182, 1187 (9th Cir.) (granting absolute immunity
to members of the Nevada Gaming Commission for
their actions in approving a stipulation that the
plaintiff entered into with a gaming board to
resolve a disciplinary proceeding), cert. denied,
528 U.S. 816 (1999); Watts v. Burkhart, 978 F.2d
269, 272-78 (6th Cir. 1992) (granting members of
the Tennessee Board of Medical Examiners absolute
immunity for the decision they reached during a
summary suspension hearing).
/5 See also Walrath v. United States, 35 F.3d 277,
280-84 (7th Cir. 1994) (granting absolute immuni-
ty to members of a federal parole board for their
decision to revoke parole).
/6 Similarly, the Eighth Circuit has granted
absolute immunity to a board of aldermen who
conducted impeachment proceedings against the
mayor because those proceedings required the
aldermen to function "like judges in that they
were required to determine whether bias existed,
to hear testimony and receive evidence, to evalu-
ate the credibility of witnesses and weigh the
evidence, and to make findings of fact and con-
clusions of law." Brown v. Griesenauer, 970 F.2d
431, 437 (8th Cir. 1992). The court also ex-
plained that a "’judicial inquiry investigates,
declares and enforces liabilities as they stand
on present or past facts and under laws supposed
already to exist.’" Id. (quoting Prentis v. Atlan-
tic Coast Line Co., 211 U.S. 210, 226 (1908)).
/7 10 ILCS 5/10-10.1 reads in relevant part:
[A] candidate or objector aggrieved by the deci-
sion of an electoral board may secure judicial
review of such decision in the circuit court of
the county in which the hearing of the electoral
board was held. The party seeking review must
file a petition with the clerk of the court
within 10 days after the decision of the elector-
al board. The petition shall contain a brief
statement of the reasons why the decision of the
board should be reversed. The petitioner shall
serve a copy of the petition upon the electoral
board and other parties to the proceeding . . .
.
The court shall set the matter for hearing to be
held within 30 days after the filing of the
petition and shall make its decision promptly
after such hearing.
/8 We believe it is important to note that Tobin for
Governor’s argument is premised on the faulty
assumption that the board members always will
belong to either the Republican or Democratic
parties. The appointment provisions of the elec-
tion code in no way compel that result. Of the
eight board members, four will be affiliated with
the same political party as the governor, and
four will be affiliated with the political party
whose nominee for governor in the most recent
election received the second highest number of
votes. See 10 ILCS 5/1A-2. Although as a practi-
cal matter the composition of the Board is likely
to consist primarily of Republicans and Demo-
crats, it is at least possible that other parties
will obtain representation on the Board. There-
fore, we cannot base our analysis on the assump-
tion that only Republicans and Democrats will
serve on the Board. Tobin for Governor’s argument
further assumes that the political "outs" will
never find friends among the political "ins,"
which is an assumption that may not be realistic.
/9 In two cases, the Ninth Circuit has been asked to
determine whether the members of an election
board enjoyed qualified immunity. See Charfauros
v. Bd. of Elections, 249 F.3d 941, 951-56 (9th
Cir. 2001) (holding that a territorial board of
elections could not claim qualified immunity when
the board had implemented and applied new and
discriminatory procedures to determine whether
certain individuals, whose eligibility had been
challenged, were entitled to vote); Oakley v.
Pasadena, 535 F.2d 503, 504-05 (9th Cir. 1976)
(holding in a pre-Butz case that the city board
members had qualified immunity for denying a
candidate a place on the ballot after a police
report indicated that the candidate was not a
resident of the city). In these cases it does not
appear that the court was asked to determine
whether the board members were entitled to abso-
lute immunity. Nor can we be certain that the
procedural contexts in those cases placed the
board in an analogous decision-making context to
the one of the ISBE in this case. Several dis-
trict court cases also deal with whether members
of an election board are eligible for qualified
immunity. See McLaughlin v. City of Canton, 947
F. Supp. 954, 966-68 (S.D. Miss. 1995); Hirsch-
feld v. Spanakos, 909 F. Supp. 174, 177-80
(S.D.N.Y. 1995), rev’d on other grounds, 104 F.3d 16
(2d Cir. 1997); Pestrak v. Ohio Elections Comm’n,
670 F. Supp. 1368, 1372 (S.D. Ohio 1987), rev’d
in part on other grounds, 926 F.2d 523 (6th Cir.
1991); Kilgore v. McClelland, 637 F. Supp. 1241,
1246-47 (W.D. Va. 1986); De la Cruz v. Dufresne,
533 F. Supp. 145, 149-50 (D. Nev. 1982). However,
these cases do not indicate that the issue of
absolute immunity ever was submitted to the
court. Nor do these cases arise in procedural
contexts sufficiently close to the case before us
to offer any persuasive guidance.
/10 See Norman v. Reed, 502 U.S. 279, 287-88 (1992)
(holding that candidates’ constitutional chal-
lenge to two provisions of Illinois’ election
code was not moot once the election was over
because there was every reason to suspect that
the parties would bring the same challenge to the
same provisions in the future); Storer v. Brown,
415 U.S. 724, 737 n.8 (1974) (holding that con-
stitutional challenges to the provisions of
California’s election code that required candi-
dates to be politically disaffiliated for at
least one year and to file nomination petitions
that satisfied stringent signature requirements
were not moot once the election was "long over"
because the effects of the statutes would "per-
sist as [they were] applied in future elec-
tions"); Moore v. Ogilvie, 394 U.S. 814, 816
(1969) (holding that candidates’ challenge to a
statutory signature requirement was not moot once
the election had been held because the burden
"placed on the nomination of candidates for
statewide offices remain[ed] and control[led]
future elections"); Stewart v. Taylor, 104 F.3d
965, 969-70 (7th Cir. 1997) (holding that can-
didate’s constitutional challenge to Indiana’s
anti-fusion law was not moot once the election
had passed because the same challenge could be
raised to the same statute during the next elec-
tion).