Tobin for Governor v. Illinois State Board of Elections

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).