General Parker v. Kevin Lyons , 757 F.3d 701 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3660
GENERAL PARKER,
Plaintiff-Appellant,
v.
KEVIN LYONS, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 11-1441 — Joe Billy McDade, Judge.
SUBMITTED JUNE 27, 2014* — DECIDED JULY 7, 2014
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit
Judges.
PER CURIAM. An Illinois statute bars persons convicted of
certain crimes from holding public office. See 10 ILCS
§ 5/29-15. General Parker sought to run for a seat on the school
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 13-3660
board of Peoria School District 150. The state’s attorney for
Peoria County filed suit in state court to bar Parker, who had
been convicted of felony theft in the 1980s, from pursuing that
office. After a brief hearing held on short notice, a state court
ordered Parker’s name removed from the ballot and enjoined
him from running. Parker then sued several defendants in
federal court, including the state’s attorney. He argued that
they enforced the statute in violation of due process and equal
protection by denying him a chance to defend himself and
targeting him based on his race (African American). He also
attacked the constitutionality of the law on its face. The district
court dismissed the suit as barred by the Rooker-Feldman
doctrine, immunity, and claim preclusion. We conclude that
immunity, not Rooker-Feldman, bars the enforcement claims and
that, even if claim preclusion did not preclude Parker’s facial
attack on the statute, that challenge fails on the merits. We
therefore affirm the judgment.
For purposes of this appeal, we take as true the factual
allegations in Parker’s complaint. Seeking a seat on his local
school board, in December 2010 Parker filed a nominating
petition for the seat and a statement asserting that he was
eligible to hold the office. See 105 ILCS §§ 5/9-1, 5/9-10; 10 ILCS
§ 5/10-5. Two months later—about a week before the ballots
were to be printed for the April 5 election—Kevin Lyons, the
state’s attorney for Peoria County, filed a quo warranto com-
plaint in Illinois circuit court to block Parker’s candidacy. The
purpose of a quo warranto action generally “is to question
whether a person lawfully holds title to office.” McCready v. Ill.
Sec’y of State, 888 N.E.2d 702, 712 (Ill. App. Ct. 2008); 735 ILCS
§ 5/18-101.
No. 13-3660 3
Lyons asserted in the complaint that Parker was barred by
statute from holding the office of school board member
because he was convicted in the early 1980s of felony theft. The
statute in question prohibits “[a]ny person convicted of an
infamous crime … from holding any office of honor, trust, or
profit, unless such person is again restored to such rights by
the terms of a pardon for the offense or otherwise according to
law.” 10 ILCS § 5/29-15. Felony theft is an “infamous crime”
under the statute, see People ex rel. City of Kankakee v. Morris,
467 N.E.2d 589 (Ill. App. Ct. 1984), and Parker never received
a pardon for his conviction. (The statute does not bar persons
convicted of felonies from all elective office; those who
complete their criminal sentence may run for and hold any
office created by the Illinois Constitution. See 730 ILCS
§ 5/5-5-5(b); Buchmeier v. United States, 581 F.3d 561, 564 (7th
Cir. 2009); People v. Hofer, 843 N.E.2d 460, 464–65 (Ill. App. Ct.
2006).) Lyons requested a declaration that Parker was not
eligible to hold office on the school board and an injunction
barring his name from appearing on the ballot.
On the first day of the quo warranto proceedings, of which
he had less than a day’s notice, Parker argued that the presid-
ing judge, Judge Brandt, was biased and requested 48 hours to
file a recusal motion. The judge gave him one day. On the
second day, Judge Brandt granted Parker’s request to substi-
tute a judge as a matter of right. See 735 ILCS § 5/2-1001(a)(2).
Minutes later, the hearing continued before a different judge,
Judge Shore. Proceeding without counsel and having had less
than two days to research and present his case, Parker moved
to dismiss, challenging the propriety of the suit. The judge
denied the motion. Parker then defended the suit on three
4 No. 13-3660
grounds: the statute barring those convicted of infamous
crimes from holding public office does not apply to the office
of school board member, the state’s attorney was selectively
enforcing the statute, and the rushed hearings were unjust.
At the end of the hearing, the state court rejected Parker’s
arguments. Judge Shore ordered that Parker was “barred from
holding or running for [the office of] school board member,”
enjoined him from running in the upcoming election, and
ordered his name removed from the ballot. Parker appealed,
repeating the arguments he had made in circuit court and
challenging for the first time the statute’s constitutionality. The
appellate court affirmed the circuit court’s judgment and
concluded that the constitutional arguments Parker had not
raised in circuit court were forfeited. In the meantime, the
election was held without Parker’s name on the ballot, and
another candidate, Debbie Wolfmeyer, who is white, was
elected to the school board.
While Parker’s appeal in state court was pending, he filed
this suit in federal court against Lyons (who, Parker acknowl-
edges, is no longer a state’s attorney), Peoria County, and other
defendants. Through several amendments to his complaint,
Parker brings two types of claims. The first is a claim that the
defendants improperly enforced the statute in the quo warranto
proceeding. He argues that, in violation of due process, the
defendants “orchestrated the quo warranto action in a manner
which was designed to deprive [Parker] of a fair hearing” by
“arrang[ing] for the case to be heard by [Lyons’s] good friend
Judge Brandt” and providing Parker “with wholly inadequate
notice.” Parker adds that, for several reasons (including racial
bias), the enforcement against him violated equal protection.
No. 13-3660 5
His second claim is a facial attack. He argues that the Illinois
statute on its face violates his “implied right to run for public
office,” a right that he says is guaranteed under the Constitu-
tion.
The district court dismissed all claims. First, on his claims
that the defendants improperly enforced the statute, the court
ruled that Rooker-Feldman barred the due-process theory and
that the equal-protection theory failed on a number of grounds:
Lyons enjoyed prosecutorial discretion and immunity; Peoria
County was not a municipality liable for Lyons’s actions
because state’s attorneys are officials of the state, not the
county; and the other defendants were either not state actors
or were immune. Second, the court decided that claim preclu-
sion barred Lyons’s facial constitutional challenges to the
Illinois statute because Parker could have raised his constitu-
tional arguments in the quo warranto proceedings and did not
do so.
On appeal, Parker first challenges the district court’s
application of the Rooker-Feldman doctrine. We conclude that
Rooker-Feldman does not apply here for two reasons. First, that
doctrine divests district courts of jurisdiction only in cases
where “the losing party in state court filed suit in federal court
after the state proceedings ended.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291 (2005) (emphasis added).
Parker sued in federal court while his appeal from the state
circuit court’s judgment was pending in Illinois Appellate
Court. Since Saudi Basic Industries, all federal circuits that have
addressed the issue have concluded that Rooker-Feldman does
not apply if, as here, a state-court appeal is pending when the
federal suit is filed. See Nicholson v. Shafe, 558 F.3d 1266, 1279
6 No. 13-3660
(11th Cir. 2009); Guttman v. Khalsa, 446 F.3d 1027, 1032 n.2 (10th
Cir. 2006); Dornheim v. Sholes, 430 F.3d 919, 923–24 (8th Cir.
2005); Mothershed v. Justices of the Supreme Court, 410 F.3d 602,
604 n.1 (9th Cir. 2005); Federación de Maestros de Puerto Rico v.
Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 25 (1st
Cir. 2005). As the Ninth Circuit explained, Saudi Basic Industries
clarified that “[p]roceedings end for Rooker-Feldman purposes
when the state courts finally resolve the issue that the federal
court plaintiff seeks to relitigate in a federal forum.”
Mothershed, 410 F.3d at 604 n.1 (emphasis added). It added that
if the state-court appeal is pending at the time the federal
action is filed, the necessary final resolution in the state system
is not present. We agree with this reasoning and conclude that
Rooker-Feldman does not bar the claims of federal-court
plaintiffs who, like Parker, file a federal suit when a state-court
appeal is pending.
In the present case, there is a second reason why Rooker-
Feldman does not apply. Parker alleges that Lyons (the only
defendant about whom Parker develops an argument on
appeal) vitiated the state-court process by collaborating with
a friendly judge to rush the case to a foreordained judgment.
Because his claims are premised on detailed allegations that
the winning party obtained a favorable civil judgment by
corrupting the state judicial process, Rooker-Feldman does not
bar them. See Johnson v. Pushpin Holdings, LLC, 748 F.3d 769,
773 (7th Cir. 2014); Loubser v. Thacker, 440 F.3d 439, 441–42 (7th
Cir. 2006); Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995).
Though they are not foreclosed by Rooker-Feldman, Parker’s
claims that Lyons improperly enforced the statute nonetheless
fail. To the extent that Parker is suing Lyons in his official
No. 13-3660 7
capacity as a state officer, damages are barred by the Eleventh
Amendment. See Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 342
(7th Cir. 2010); Garcia v. City of Chi., 24 F.3d 966, 969 (7th Cir.
1994). And to the extent that he is suing Lyons in his individual
capacity, damages are barred by absolute prosecutorial
immunity. See Fields v. Wharrie, 672 F.3d 505, 516 (7th Cir.
2012); Thomas v. City of Peoria, 580 F.3d 633, 638–39 (7th Cir.
2009). Finally, injunctive relief against Lyons is unavailable.
Parker contends that Lyons must be enjoined from using his
“racial bias” to enforce the statute against blacks. But Lyons is
no longer a state’s attorney, and Parker alleges no racially
biased enforcement by anyone else. Thus he may not obtain an
injunction against Lyons.
This brings us to Parker’s argument that the Illinois statute
is unconstitutional on its face. He contends that the district
court erroneously used claim preclusion to bar these chal-
lenges. The district court was required to apply Illinois’s law
of claim preclusion. See 28 U.S.C. § 1738. But as Parker points
out, in Illinois claim preclusion “is an equitable doctrine that is
not applied when it is ‘fundamentally unfair to do so.’” In re
Dollie's Playhouse, Inc., 481 F.3d 998, 1001 (7th Cir. 2007); cf.
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 400–01 (1981)
(no equitable exception under federal law of claim preclusion
for antitrust defendants there). The defendants acknowledge
that Parker had only two days to defend himself in state court,
and Parker asserts that on such short notice he could not obtain
counsel or develop his constitutional claims. We need not
decide whether Illinois would recognize an equitable exception
to claim preclusion in these circumstances. Even if it did,
Parker’s challenges fail on the merits.
8 No. 13-3660
Parker argues that future prosecutions against him under
this statute should be enjoined under Ex parte Young, 209 U.S.
123 (1908). He appears to believe that Young allows him to
proceed against the State of Illinois. But the current state’s
attorney, not the state itself, is the proper defendant under
Young, which “permit[s] private citizens to sue state officials in
their official capacities to require them to comply with federal
law on an ongoing basis.” McDonough Assocs., Inc. v. Grunloh,
722 F.3d 1043, 1049 (7th Cir. 2013) (emphasis added). The
problem here is that no injunction based on Young is possible
for the simple reason that Parker has not stated a claim that the
state statute violates federal law. See Verizon Md., Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002).
Contrary to Parker’s contentions, the statute does not
violate equal protection. The right to run for or hold public
office is not a fundamental right, Brazil-Breashears v. Bilandic, 53
F.3d 789, 792–93 (7th Cir. 1995), and felons are not a suspect
class, Talley v. Lane, 13 F.3d 1031, 1034 (7th Cir. 1994); thus, a
ban on felons running for elective office is valid if it is ratio-
nally related to a legitimate state interest. See Clements v.
Fashing, 457 U.S. 957, 963 (1982). Illinois’s stated interest in
barring felons from elective office is to ensure “public confi-
dence in the honesty and integrity of those serving in state and
local offices.” People v. Hofer, 843 N.E.2d 460, 464 (Ill. App. Ct.
2006). Parker does not dispute the legitimacy of this interest,
nor has he argued that the statute does not rationally further it.
Moreover, even if a higher level of scrutiny applied to restric-
tions on the right of ex-felons to hold office, the claim would
fail. The Supreme Court has held that states may deprive
convicted felons of the right to vote—a right that, unlike
No. 13-3660 9
Parker’s interest in running for office, is fundamental and
subject to strict scrutiny. Richardson v. Ramirez, 418 U.S. 24, 56
(1974); see Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,
210 (2008) (voting is a fundamental right). Parker responds that
the statute violates equal protection because it has a disparate
impact on black men. But an assertion of disparate racial
impact does not state an equal-protection claim. Parker must
allege that the legislature acted with a discriminatory purpose,
and he does not do so. See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009); Washington v. Davis, 426 U.S. 229, 240 (1976).
Likewise, Parker has not persuaded us that the ban violates
the First Amendment. To succeed, he must demonstrate that
the state’s legitimate interest in the integrity of its elections
does not justify its ballot restriction. See Stone v. Bd. of Election
Comm’rs for the City of Chi., 750 F.3d 678, 681 (7th Cir. 2014);
Brazil-Breashears, 53 F.3d at 792. Parker asserts broadly that
“speech or expression is entitled to constitutional protection”
but that rhetoric does not identify an insufficiency in the state’s
legitimate interest in keeping those convicted of serious crimes
off the ballot. Although a ballot disqualification based on a 30-
year-old felony conviction may be harsh, Parker gives us no
reason to conclude that the state is not entitled to adopt this
rule. Moreover, if Parker believes that his special circumstances
warrant it, he remains free to seek an executive pardon so that
he may run for school board. See 10 ILCS § 5/29-15; Delgado v.
Bd. of Election Comm’rs of the City of Chi., 865 N.E.2d 183, 185
(Ill. 2007).
We have considered Parker’s other arguments and con-
clude that they lack merit.
AFFIRMED.