Dempsey v. Johnson, 2016 IL App (1st) 153377

Background

Plaintiff Princess Dempsey was an independent candidate for Village president in Broadview’s April 9, 2013 consolidated election; defendant Maxine Johnson was the Village clerk and a Democrat allegedly allied with Dempsey’s opponent, Judy Brown‑Marino.
Johnson, in her capacity as clerk and electoral board member, allegedly removed Dempsey’s nominating petitions, assisted Brown‑Marino in objecting to those petitions, and voted to strike Dempsey from the ballot; a court later reinstated Dempsey on the ballot.
On the night before the election Johnson sent a prerecorded robocall via Village systems stating Dempsey was not a legitimate candidate, had been removed from the ballot, and that votes for her would be "lost votes." Dempsey alleges this destroyed her candidacy and caused her to lose.
Dempsey sued Johnson (individually and in her official capacity) under 10 ILCS 5/29‑17 (an Election Code private right of action modeled on § 1983) and 42 U.S.C. § 1983, alleging First Amendment freedom of association retaliation and Fourteenth Amendment equal protection violations; she also alleged a separate statutory violation of 10 ILCS 5/9‑25.1(b) (misuse of public funds for political advocacy).
The circuit court dismissed the two‑count third amended complaint under section 2‑615 for failure to state a claim; the appellate court affirmed in part, reversed in part, and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1983 claim (individual capacity) for First Amendment retaliation / freedom of association is adequately pleaded	Dempsey alleged protected political activity (running, petitioning, associating), Johnson’s robocall would chill an ordinary person and effectively removed her from voter consideration, and Johnson acted with political animus	Johnson argued complaint failed to identify an actual deprivation of constitutional rights because Dempsey’s name remained on the ballot and voters could still vote; also asserted immunity defenses	Reversed: complaint adequately pleaded First Amendment retaliation; Johnson acted under color of state law as clerk using official resources
Whether § 1983 claim (individual capacity) for Fourteenth Amendment equal protection is adequately pleaded	Dempsey alleged disparate treatment (singled out vs. other candidates), motive of political animus, and discriminatory effect on her candidacy	Johnson argued no equal protection deprivation because no fundamental right was actually taken and no discriminatory policy shown	Reversed: complaint adequately pleaded equal protection claim (discriminatory purpose and effect inferred)
Whether § 1983 claim against Johnson in official capacity (Monell liability) survives	Dempsey argued Johnson had final policymaking authority under state law over election certifications and notices, so her unconstitutional acts are municipal acts	Johnson argued no municipal policy, custom, or final policymaker basis for liability	Reversed: complaint sufficiently alleged Johnson was final policymaker with authority under Election Code, so Village may be liable under Monell
Whether the Election Code § 9‑25.1(b) misuse‑of‑public‑funds claim via § 29‑17 states a constitutional deprivation	Dempsey claimed use of Village resources for a political robocall violated § 9‑25.1(b) and thus gave rise to § 29‑17 relief	Johnson argued statutory violation; court noted enforcement mechanisms exist (State Board of Elections) and § 29‑17 is limited to constitutional deprivations	Affirmed: circuit court properly dismissed the § 9‑25.1(b) claim under § 29‑17 because the complaint did not allege a constitutional deprivation caused by that statutory violation

Key Cases Cited

Kentucky v. Graham, 473 U.S. 159 (distinguishes individual‑capacity and official‑capacity § 1983 suits)
Monell v. Department of Social Services, 436 U.S. 658 (municipal liability requires policy, custom, or final policymaker)
Buckley v. Valeo, 424 U.S. 1 (political expression and ballot access receive broad First Amendment protection)
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (restrictions on ballot access burden association)
Wyatt v. Cole, 504 U.S. 158 (§ 1983’s deterrent and remedial aims)
Lugar v. Edmondson Oil Co., 457 U.S. 922 (color of state law / state action analysis)
Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288 (state action where close nexus exists between private conduct and state)
West v. Atkins, 487 U.S. 42 (acting under color of state law requires exercising power by virtue of state law)
Pembaur v. City of Cincinnati, 475 U.S. 469 (authority to make municipal policy may be granted by statute)
McMillian v. Monroe County, 520 U.S. 781 (final policymaker inquiry is a question of state law)
Doe v. Calumet City, 161 Ill. 2d 374 (Illinois law distinguishing individual and municipal liability under § 1983)