Wendy A. Georges v. Clifford M. Carney, Jean McNamara and William Toerpe, and Illinois State Board of Elections, Intervening

COHN, District Judge. Wendy GEORGES, al., A. et I concur in the result reached in Part II Plaintiffs-Appellants,

of the panel opinion; I respectfully dissent I my Part I. believe colleagues give weight little to the National Labor Re- CARNEY, Clifford M. Jean McNamara lations Board’s determination that the In- Toerpe, William Representation Plant Committee was a “la- Defendants-Appellees, organization” bor as 2(5) defined in Section Act, of the National Labor Relations 152(5). U.S.C. See N.L.R.B. v. Produc- Elections, Board Illinois State Plastics, Inc., tion Molded 604 F.2d Intervening Defendant. (6th 453-54 1979). My reading Cir. No. 82-2400. supports record the Board’s conclusion that the committee was a labor organization as Appeals, United States Court of 2(5) defined in interpreted Section by the Seventh Circuit. Court N.L.R.B. v. Cabot Carbon Sept. Submitted 1982. Co., (1959). 360 U.S. 203 See 249 N.L.R.B. Sept. 16, *. Decided 1982 (1980).

No. 54

However may much there be a need for fide,

“bona socially employee desirable com- joint employer-employee com-

mittee[s] something less than a

mittee[s] [are] organization

labor and something more

than a Study Great Books Group”, N.L.R.B. Co.,

v. Walton Manufacturing 289 F.2d (5th 1961) (Wisdom, J., Cir. dissenting part), objective should not be

achieved by overly restricting the definition

of a organization. Rather, believe, labor I

the test to emphasized is employer domi-

nation, 8(a)(1), (2) Section of the National Act,

Labor Relations 158(a)(1), U.S.C. § N.L.R.B., See Modern Plastics Corp. v. (6th 1967). F.2d 201 Cir. opinion prepared subsequently, *This was er’s deadline which if missed would have re- procedure sharply higher released on October printing This sulted in costs to the necessary possible in order to make it Board and could also have resulted in some the Board receiving of Election Commissioners of Du- absentee voters not their ballots in Page County print absentee ballots for the time vote the election. September print- November election

that, approves, if the electorate becomes Ill.Rev.Stat.1981, law. See For a as distinct private group, from a board, public body county such as a an advisory placed on the ballot in a local subdivision of Illinois re- quires percent signatures of of the registered voters in the subdivision. 111. Barnard, Block, Jayne W. Jenner & Chi- 46, Rev.Stat.1981, ch. 28-6. This hurdle § 111., cago, for plaintiffs-appellants. impossible seems to be nearly leap, Wheaton, 111., Kelleghan, Thomas C. DuPage least A County. summer of defendants-appellees. vigorous canvassing with the assistance of a Scanlon, James M. 111.State Bd. of Elec- 8,500 professional yielded signa- canvasser tions, Fahner, 111., Tyrone Atty. C. Gen. question tures for the on a nuclear arms Chicago, for intervenor-defendant. freeze, although and more than obtained, had ever been far anyone so CUMMINGS, Before Judge, Chief and (there could statistics), recall no reliable POSNER, CUDAHY and Judges. Circuit advisory question DuPage County, for an POSNER, 75,000 Judge. Circuit it fell far short of the that would required percent have been to meet the 25 appeal This from the denial aof in DuPage. And even if this preliminary injunction brings up ques to us Sisyphean task had been accomplished tions of speech freedom of equal and of would have plaintiffs good. done these protection of the arising laws from the 28-1 of the Section Election Code limits the methods by which the Illinois Election Code questions number of that can placed be on rations access to by those who three, provides if put wish to to the electorate question more than three are submitted to the local rather than a candidate. The plaintiffs in election appear board first three will this action under 42 1983 are U.S.C. mem § Ill.Rev.Stat.1981, the ballot. ch. bers of the DuPage County Citizens for plaintiffs’ question was fifth in line. Nuclear Arms They Freeze. want the bal which, The DuPage County being a Board — lot in DuPage County in the next general public body, is not required to obtain election, which is to be held on November signatures in order to a question— submit question to contain a asking, “shall had submitted four after the people of the County DuPage en plaintiffs begun had their canvass but be- dorse the call to halt the nuclear arms race fore they given had up obtaining and request the DuPage County Board ... signatures of registered to adopt immediate, mutual, and verifia voters and had submitted their ble freeze on all further testing, production without the required signatures. number of deployment” of Soviet and American All four of the Board’s were bind- nuclear weapons “followed reductions of ing questions, with having do not nuclear present nuclear weapons?” In the nomen issues but with local issues of water supply clature of the Illinois Election Code this is discloses, and the like. far as the So record “advisory” question, see Ill.Rev.Stat. public DuPage County bodies in such as the 28-1, 28-6, because, despite §§ County Board have never submitted adviso- wording, its adoption by the DuPage ry questions. County Board of a freeze on Soviet American weapons nuclear would have no In asking that the election commissioners effect; legal and anyway the voters are DuPage County enjoined prepar- from just being “request” asked to ing action of the ballots for the November election that A “binding” contrast, Board. question, in the nuclear do contain arms freeze proposes to the electorate a course of action question, plaintiffs argue the 25 general, guarantee Rights Bill of the limit of three requirement, liberties. positive rather than of ballot, negative and the first-come

questions per to interfere with government It forbids choosing the three first-served method of require it but does not of ideas infringe competition their among those submitted sub- citizenry a well informed First Amend- to create speech freedom of under the —to or publishing or book course, newspapers ment, has, appli- held sidize been United soapboxes. States soundtracks against the states virtue of the due cable Greenburgh Civic v. Council Postal Serv. Amend- process clause of Fourteenth n.10,101 at 151 Ass’ns, 453 U.S. S.Ct. supra, argue ment. The also J., dissenting); cf. (Marshall, n.10 at 2696 protection equal Election Code violates the 297, 318, McRae, Harris v. clause of the Fourteenth Amendment 2671, 2689, 65 L.Ed.2d 784 than (1) easier for bodies making private groups put par- with this distinction the Consistently (2) groups to private ballot and harder for is no litigation agree that there ties to this than to get advisory questions on the ballot box as right to use the ballot constitutional it. binding questions certain on kinds of a such as a advocating policy, a forum for re- signatures For are example, only 1000 Illinois weapons, and that freeze on nuclear quired place proposal on the ballot a obligation has no constitutional therefore minors, 111. wayward establish a home for placed to be on advisory questions allow Rev.Stat.1981, 23, 2686, 100 only ch. § provision for Not all states make ballot. support tax to proposal property for a for a ballot, and questions on the including such 34, fair, Ill.Rev.Stat.1981, county a quarrel no constitu- have —no states that at rate —with quarrel, tional do not. Challenges to state election laws on fed see, grounds legion, eral constitutional should it make a difference Nor - -, e.g., Fashing, Clements v. U.S. for provide that does not whether a state 2836, (1982), but 102 S.Ct. 73 L.Ed.2d 508 binding for provide does which

this is the first case we have found in binding ques of questions. The submission challenged regulation laws involve initiative, as in the electorate —the tions to propositions of ballot rather than of candi technique a case, the referendum —is or In dacy, except for Massachusetts Public direct, representative, from of as distinct Group Secretary terest Research v. of people It allows the to vote democracy. Commonwealth, 85, 375 Mass. 375 N.E.2d by indirectly a law rather than directly for (1978), challenge 1175 involved a do not think for the lawmaker. We voting votes for geographical weighting a measure of direct de by opting propositions reappor and so was a kind of itself to allow mocracy obliges a state cases tionment case. It and the candidate pure be used as a means of ballot also to involve such issues from those in different have obligation an would advocacy. Such genu this case that we must treat this as a Amend logic of the First no basis in the it on impression ine case of first and decide an interfer democracy Direct is not ment. ideas; though principles, marketplace the basis of fundamental ence with will the state under help, appear, put derive little as therefore does not cases, inter compensate for such an “public obligation two forum” United States Greenburgh taking promote Civic measures to by Postal Serv. v. Council of ference allowing 2676, marketplace, Ass’ns, enlarge 69 453 101 S.Ct. U.S. polls used to take official (1981), City v. the ballot to be L.Ed.2d 517 and Lehman public policy. controversial issues Heights, 418 94 S.Ct. Shaker U.S. 41 L.Ed.2d 770 Heights, City Lehman v. of Shaker city The this conclusion. supra, supports prohibition The First Amendment’s com line, while it allowed owned a bus against governmental abridgments of free refused its buses it is, advertising mercial speech as is the press dom and of the political advertising. allow submit Supreme even (cid:127) Court found violation the First cent be lawful requirement would thus Amendment. “Were we to hold to the con- just oblique way it would of keeping trary, display public cases li- hospitals, ballot; advisory questions all off the and if braries, buildings, office com- military has the same pounds public and other facilities immedi- one, practical effect as a 100 we do ately Hyde would open become Parks why see former should be treated every pamphleteer politician.” would-be in law. differently at 804 simi- (plurality opinion). To This assumes that bodies submit no lar effect see United States Postal Serv. advisory questions. The case would be dif- Greenburgh Ass’ns, Council of supra, Civic if, ferent if did—and particularly as a which upheld the constitutionality of result, challenged provisions of the Illi- federal statute that people depos- forbids nois Election Code could be viewed as a it circulars messages or other in letterboxes (or county) device which the state letterbox, without affixing postage. “[A] taking sides the nuclear arms debate. once designated an ‘authorized depositary’ Then the case would be like Southeastern mail], does not the same time under- [for Promotions, Conrad, Ltd. v. go a ‘public transformation into a forum’ 1239, 43 (1975), L.Ed.2d 448 where the some limited nature to which First managers Court held that the of a guarantees Amendment com- access to all owned municipally theater violated the ers.” 453 U.S. at S.Ct. at forbidding First particu- Amendment But actually these cases stronger involve a play lar to be performed musical in the argument for First protection Amendment than theater the present play sexy the because for case. Buses and letterbox- without, es are course, in fact for the of managers’ vehicles the communica- taste — tion of messages, and the issue suggesting was whether that the had municipality a con- access to them could be restricted —access duty operate stitutional to a theater. Simi- by political advertisers in City of Shaker larly, DuPage if County the Board had sub- Heights, by persons or unwilling pay to opposition mitted a expressing to a in postage Council of Greenburgh Civic plaintiffs nuclear arms freeze the while Ass’ns. But the ballot in DuPage County, laboring valiantly hopelessly but to Illinois is in fact anot vehicle for communi- get necessary signatures ques- for their cating messages; is only it for vehicle tion, a serious constitutional issue would be putting candidates and laws to the elector- But, said, raised. as we so have far as ate to vote up or down. If and when advis- appears County on this record the Board ory questions to begin up show on the bal- put advisory question has never tried to an lot, may we have a different case. ballot; public on the nor has any body other short, in DuPage. only if Illinois allowed binding questions be placed to on the ballot danger isNor there much in DuPage these County plaintiffs would requirement have might the ef have no case. in just But effect is allowing just popular viewpoints fect of to what Illinois has done. It it has made in advisory questions, embodied and practically impossible, at least political in discriminating against minority thus view populous subdivisions as as DuPage County ideas; (the points marketplace of for only distort subdivision with concerned case), any no one remember put group in to can when in advisory questions on DuPage County gathered enough signa the ballot. bodies Public could do with so so; ease but no tures get advisory question have inclination to do private groups challenged want but the ballot. it is clear that the And getting of the signatures response of 25 were not in restrictions enacted registered prevents voters per them from the arms freeze nuclear movement — doing Assuming public so. haps bodies never effort to close off an avenue of in an by the proximate percentage garnered

communication which that movement has message— canvass, not have. This especially plaintiffs’ found effective for its would that the first enough because the back to difference is to show restrictions date challenged arbitrary. Ill.Laws of distinction is not And See Illinois given directly preference binding questions is not either discriminating indi- pro- rectly against expression judgment, the free which we cannot contro- reflects either, It that it more merely providing arbitrary versial ideas. is not nounce is im- advocating get ques- novel forum for ideas of before the electorate portant kind, obligation legal and it has constitutional tions that it can with effect answer such a provide provide soapbox forum. than to another great and causes. opponents advocates Because not think Illinois we do has Nothing sug- in this is meant to opinion plaintiffs’ restricted these freedom of necessarily that we think has gest Illinois speech simply by to make the failing limiting the correct made choice a usable means them to communicate on the ballot to three number their views of as distinct policy, from making impossible practically pro a means of candidates and presenting electorate, larger subdivisions to posed laws to the we do not have included. has no California such percent require to decide whether the result, restrictions as a high ques ment is too or the limit of three claim, gets higher California voter turn- tions too low—if numbers were zero, Illinois. out than But we are percent and make no would differ election scientists asked to draft an ideal ence so far as First Amendment only job code for Illinois. is to concerned. But Our decide try we will not conceal plain- whether Illinois these deprived has having our relief at not to wrestle with speech tiffs of their freedom of or their such think degree. We can right equal laws. protection few issues less than judges suitable for de the record in the termining compiled preliminary As manageable length of the ballot, injunction contains no ev- length proceeding below keep whether idence of such a we conclude being deprivation, by reducing exceeded the num plaintiffs unlikely prevail that the candidates, ber of binding the number their complaint a full trial of and there- questions, advisory ques or the number of affirm the Panish, fore order of the district court 709, tions. Gf. Lubin v. 415 U.S. 715, injunction. Our 1315, 1319, denying preliminary af- 94 S.Ct. 39 L.Ed.2d 702 plain- (1974). prejudice firmance without evidence in presenting tiffs’ additional We alleged turn now to the dis 1984, if, looking the full trial on merits (1) crimination publicly between initiated though they pursue litigation decide to privately and and in questions, initiated the get their it is now late for them group (2) latter binding between and advis the question year. on ballot this ory questions. These are not invidious dis Judgment Affirmed. they are not based on forbidden tinctions — criteria such as race. The test is therefore CUDAHY, dissenting. Judge, Circuit “any reasonably whether state of facts may per- “25 justify” majority be conceived to them. McGowan v. The that the concedes 420, Maryland, 426, 1101, presents [signature] requirement” 81 S.Ct. cent U.S. 1105, (1961). questions 6 L.Ed.2d “Si- sponsoring advisory Since citizens elected, task,” directly indirectly— nearly bodies are a “hurdle ... syphean and DuPage Coun- DuPage directly by leap, Board at least in County impossible not- people DuPage County concession resolutions at 299. This ty.” Ante —their that, presumptive majority have a democratic concludes legitimacy withstanding, fundamental that a submitted three plaintiffs have since voters, on the bal- registered of the which is the ap- right put advisory questions lot, having know ostensibly granted Finally, authority I of no for the state — right1 wholly such a free to make it proposition questions that initiated —is illusory. This conclusion defies common County Board are somehow to be presumed pro- A simultaneously sense. state cannot legitima- better endowed with “democratic vide an avenue expression and directly from the cy” springing than those that, burden its use with conditions people. seems It to me that relative majority concedes, can never be met. degrees “democratic legitimacy” fact, (which the district court agreed only guessed from the can that there was no fundamental first amend- course, turnout election day if, — right ment place advisory questions propositions citizens’ ever make it to the the ballot) properly struck down the 25 Therefore, in ballot. view of the percent signature requirement as patently systems regulating Court’s concern ac- erred, excessive. The district court how- cess expres- to forums first amendment ever, in denying plaintiffs any relief since adequate sion safeguards, have Southeast- went on to find that the three question Promotion, Conrad, 546, ern Ltd. v. validly precluded limit them bal- from the 1239, (1975), L.Ed.2d 448 limit, lot. But this even if in some valid context, presently applied different three limit as fairly cannot be applied to these delayed who no doubt must also be invalidated. submitting their petitions until the dead- The scheme here legislative presented dis- line, 16, 1982, August in the hope of some- tinguishes among groups: three citizens meeting how the grossly per- excessive 25 sponsoring spon- citizens cent signature requirement. binding questions, soring govern- and local Further, I believe the three question ing may sponsor bodies who both limit, combined with the first-come-first- questions. has dis- binding state principle served and the fact gov- that local tinguished among these in the groups way erning put questions bodies can bal- in which can their questions on the resolution,2 lot with a simple both makes it minimum, ballot. At a we must consider possible likely the County Board varying whether “the ... is so treatment preempt spaces will at its whim. unrelated to achievement of combi-

And the render rights Board can legitimate purposes nation of that we can private citizens who have obtained suffi- only legislature’s conclude that the actions signatures, especially cient those citizens espouse causes, who controversial quite Bradley, Vance v. irrational.” meaningless. example, For 99 S.Ct. 59 L.Ed.2d 171 County Board one day prior met filing ap- deadline for ballot The district court found that the 25 minutes, proved, span a of about fifteen cent excessively very rule burdens “the questions eleven the November 1980 the right legislature which has created.” ballot. The day, next when groups citizen Indeed, 477. F.Supp. majority 546 the brought petitions (with in five sufficient “prac- admits that the the has signatures3) proposing ballot tical of “keeping [citizen-spon- effect” all reductions, property tax learned that advisory questions off spaces the three available had been already sored] ” by Thus, taken the Board. at percent .... Ante 25 301.4 the 1,000 petitions bearing signa- ch. 28-6. Ill.Rev.Stat. § 46 citizen or more 1. tures. Ill.Rev.Stat. § ch. 46 2. analogous 4. area of access to the candidate ballot, stressed the the Court has the petitions pursuant These 3. were submitted to realistically importance appraising the effect 643(a), permits § Ill.Rev.Stat. of ballot access rules: “the inevitable binding public rates, questions concerning tax judgment the context of [a state’s] [is]: printed by to be on the ballot if submitted reasonably indepen- politics, diligent a could 304 means, ac- state has chosen an irrational upheld, deny very

rule if serves the here all preclusion citizen-sponsored effective advisory question system cess to the end, legitimate simultaneously purports the statute orderly an grant. advisory ques- maintenance of system tion for the benefit citizens argues that the rule percent The state 25 to sponsor local boards who wish governing ensuring a reasonable means of that citi- is advisory questions. advisory questions zen-sponsored hold suffi- impose attempts the ration- community. majority cient interest for Brief it by seeing at rule Intervening Appellee ality percent In other the 25 ballot, words, objective orderly of the as an to maintain percent attempt the 25 rule “an integrity oblique way but as in effect advisory is to maintain of the rather system keeping advisory questions lest it off the bal- become cluttered all words, groups espousing ranging “interest In other we issues lot.” Ante at state, ridiculous, though to the are to it from the sublime all clam- believe otherwise,5 never ouring place for a on the and their intended expressly stated public limelight.” grant any in the access to day Id. citizens the 25 question system objective Though legitimate, the state’s effecting rule a rational means of this wholly it has chosen irrational means to accept denial. In order to remarkable achieve it. In the name preserving proposition, must at ignore, very advisory question system, “keep[s] the state least, statutory interpretation the canon sponsored] advisory all off [citizen interpreted that a be so as to statute should sup- the ballot.” Ante at 301 (emphasis give provisions. all its This is so effect to plied). recently This circuit Illi- rejected an majority’s interpretation because the nois election statute similar (employing 28-6, meaningless 25 renders rule overkill) an irrational legiti- means to a groups which states that citizen shall indeed Lavelle, mate end. In Richards v. 620 F.2d for advisory ques- have access to the ballot (7th 1980) (per curiam), Cir. a candidate tions. supporters attempt and his challenged deny the Election More even if this importantly, Commission to place legislature’s adopting candidate a he ballot because intent signatures rule, more cent be loath to submitted on his nominat- we should sanction than the ing petition By appearing grant maximum such permitted tactic. Illinois law. The one hand while accepted covertly court benefit with the other, signatures, of a limit on with the validity legisla- but withdrawing found the means of enforcing the limit —re- ture circumvents “those easily processes ordinarily expected moval—unconstitutional: “the method cho- which can bring sen ... does not serve in of undesirable way repeal legisla- rational about the administrative efficiency interest which tion.” Carolene Products United States ” Co., n.4, legitimately the state asserts .. .. Id. at 152-53 responses n.4, (1938).6 149. Rational L.Ed. problem 783-784 at such Though government may could have included actions as re- not be re- turning petitions quired the excess a well informed citizen- refusing “to create any signatures beyond surely consider we cannot ry,” approve the statuto- ante at ry technique disingenuousness maximum. Id. at 148. Similarly, statutory Bator, al., expected satisfy signa- dent candidate be to 6. Cf. et Hart and Wechsler’s P. System requirements, (2d only rarely ture or will it 358 that Courts And The Federal Federal get- 1973) (“If Congress wants to the unaffiliated candidate will succeed in ed. frustrate the Brown, check, ting judicial on the ballot?” Storer our constitutional tradition re- 724, 742, 1274, 1285, say unmistakably, quires 94 714 made to so S.Ct. 39 L.Ed.2d that it be people so will understand and the that operate.”) check can ch. 46 Ill.Rev.Stat. which, of as of a majority, production promoter described com- sued the directors apparent opportunity speak bines an municipal who theater had refused to with a real commitment to silence. The mit staging of musical “Hair.” The “soap state has furnished box” fashioned power held Court directors’ papier-mache. grant access theater on the basis play’s their review of a content enabled rejected

Having correctly rule, concluding the district court erred a prior pro- them exercise restraint of appellants properly were nevertheless expression. The tected Court then held precluded from ques- the three prior restraint was unconstitution- But, fairly tion cannot apply rule. we necessary procedural al because it lacked question three rule to these appellants, even stated, safeguards. danger The Court “the valid, assuming the rule is independently censorship abridgment and of our juncture because cannot know at this precious First Amendment freedoms is appellants whether could have obtained great where officials have unbridled discre- enough signatures to meet a reasonable tion use.” Id. at over forum’s minimum in advance of the S.Ct. at 1244. DuPage County Board meeting July case, although In this the Board would time the last slots authority not claim citizen preempt peti- Being taken the Board. thus igno- unsound, tions that it the procedures deems rant, we should appel- order the inclusion of give just themselves the Board clearly such lants’ advisory question on the November Moreover, power. there way would be no adopt ballot but allow the state to for of knowing power being when this subsequent signature elections require- rationally ment objective given related exercised of determin- difficulty preserving ballot order. ing in, example, Board’s motives for forth eleven of its putting ques- own ballot event, In any the three question limit is just keep ques- tions time all citizens’ not independently valid. The three ques- regarding tions off tax reductions the bal- rule, tion in conjunction with first- lot, as it did in to a 1980. Access forum come-first-served principle and the ease the expression political speech with which local cannot be governing pro- boards can referenda, pose virtually left un- unprotected invites local from undetectable and boards to preempt citizen-sponsored questions. government censorship. reviewable There- The state cannot enforce a rule that fore, has the reject I would also the three inviting effect of undetectable unre- limit presently enforced.7 viewable censorship by of govern- units reasons, respectfully For these I dissent. ment.

Though a state need not expand its elec- process

toral to include citizen-sponsored

binding once having so,

done attempt cannot compli- avoid

ance with first amendment strictures.

particular, when a state sponsor chooses to ideas, forum for the expression of it must

take provide care to adequate procedural

safeguards against unconstitutional censor-

ship. For example, in Southeastern Promo- tions, Conrad, Ltd. v.

1239, 43 (1975), L.Ed.2d 448 a theatrical readily allocating gov- Illinois could serve its interests in bal- limit and two to local order, access, governmental lot citizen erning ac- two bodies and citizens. by imposing, example, cess a four

Case Details

Case Name: Wendy A. Georges v. Clifford M. Carney, Jean McNamara and William Toerpe, and Illinois State Board of Elections, Intervening

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 16, 1982

Citation: 691 F.2d 297

Docket Number: 82-2400

Court Abbreviation: 7th Cir.