Find Legal Information

SIXTH DIVISION
AUGUST 31, 2001

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiffs Michael Lyons and the Better Government Association (BGA), on behalf of andfor the benefit of the State of Illinois, appeal an order of the circuit court of Cook Countydismissing their claims against defendants George H. Ryan, Citizens for Ryan (a State PoliticalCommittee) (CFR), Scott Fawell, Mark Sniegowski, Mike Chamness and John Chychula.Plaintiffs had sought the imposition of a constructive trust on funds and benefits alleged to beillegally received by the defendants, as well as remedies provided by statute. Plaintiffs alsoappeal an order of the circuit court of Cook County denying their motion to disqualify counselfor CFR.

The record on appeal discloses the following facts. On November 18, 1999, plaintiffsfiled a four-count complaint against the defendants. In the complaint, Lyons identifies himself asan Illinois taxpayer and registered voter. The BGA identifies itself as an Illinois not-for-profitcitizen watchdog organization, with principal offices in Chicago, Illinois.

The complaint alleges that the Illinois Secretary of State's Office (SOS) was responsiblefor licensing truck and related commercial vehicle drivers for transportation of products withinand from Illinois. The SOS administered a written examination and road test for the issuance ofcommercial drivers licenses (CDLs). The written test was allegedly prepared in the Englishlanguage, thus requiring CDL applicants to demonstrate a basic understanding of English toobtain a CDL.

The complaint alleged that defendant Ryan served as Illinois Secretary of State from1990-98 and is presently Governor of the State of Illinois. CFR was a "State PoliticalCommittee" as defined by statute (see 10 ILCS 5/9-1.8 (West 1998)) that solicited and accepteddonations to Ryan's campaigns for Secretary of State and Governor. Plaintiffs alleged thatFawell served as Assistant Secretary of State from 1990-93 and as Ryan's Chief of Staff from1993-98, for which he was compensated by the State. Plaintiffs also alleged that Fawell servedas Campaign Manager for CFR during the relevant time period. Plaintiffs alleged that: Sniegowski allegedly served as a Metro Area Administrator for Ryan from 1992-98; Chamnessserved as Driver Services Director for Ryan from 1995-98; Chychula served as a Metro DivisionZone Manager for Ryan from 1992-98; and each was compensated by the State in their respectivepositions. Plaintiffs referred to Sniegowski, Chamness and Chychula as the "SOS defendants."

The complaint alleged that the SOS defendants combined and conspired with CFR andother unnamed co-conspirators to participate in a fraudulent and illegal political fundraisingscheme which included: (1) the issuance of CDLs to unqualified drivers in exchange for politicaldonations; (2) pressuring SOS employees to sell CFR fundraiser tickets to entities regulated bythe SOS during working hours, and providing said tickets to the employees during working hoursat meetings held at SOS CDL facilities; (3) urging SOS employees to give purchasers of substantial numbers of such tickets to give associated CDL applicants passing grades on CDL tests;(4) encouraged and permitted SOS employees to accept fraudulent proof of Illinois domicilefrom large numbers of non-English speaking CDL applicants; (5) authorized SOS employees andunnamed co-conspirators to make arrangements with certain Illinois Department of Transportation (IDOT) employees to solicit bribes from CDL applicants and accompany these applicants toSOS CDL facilities in IDOT vehicles to ensure "special treatment"; and unfairly disciplined andretaliated against SOS employees who resisted participating in the scheme or failed to sell theirallotments of CFR fundraiser tickets. The complaint further alleged that the SOS defendants andunnamed co-conspirators fraudulently concealed these activities through a number of methods,including the obstruction of investigations.

Count I of the complaint alleged that the SOS defendants had breached their fiduciaryduties to the people of the State of Illinois and sought to impose a constructive trust upon allfunds and benefits illegally obtained by CFR and the SOS defendants, including: the salaries ofthe SOS defendants and unnamed co-conspirators; the value of IDOT vehicles used in thescheme; costs for re-testing CDL applicants; and the expenses of investigating the allegedwrongdoing. Count II sought similar relief for alleged breaches of fiduciary duties by Fawell andother named State employees who engaged in the alleged scheme.

Count III of the complaint sought similar relief, alleging that Ryan breached his fiduciaryduties by: failing to stop the scheme; failing to launch an independent inquiry into the schemeafter it was brought to his attention by the BGA and others; failing to discharge SOS employeesinvolved in the scheme; curtailing investigations of the scheme, including closing the SOSInspector general's office; and directing his secretary to contact an unnamed co-conspirator toissue CDLs to favored applicants. Count III added further allegations of fraudulent concealmentby Ryan and his representatives relating to press releases and statements made to the media.

Count IV of the complaint alleged that the defendants had violated sections 20-102through 20-104 of the Illinois Code of Civil Procedure (735 ILCS 5/20-102, 20-103, 20-104(West 1998)) (Code).⁽¹⁾ Section 20-102 generally provides that any person who has receivedcompensation, remuneration or benefits from the State or a governmental unit by means of falseor fraudulent statements or records shall be answerable for the entire amount. 735 ILCS 5/20-102 (West 1998). Section 20-103 generally provides that such a person will be liable not only torepay any such amount, but also for interest and penalties. 735 ILCS 5/20-103 (West 1998).

Section 20-104(b) provides that a private citizen may bring a suit to recover the damagesauthorized by the prior sections on behalf of the affected governmental unit if: the citizen sendsa letter to the appropriate government official by certified mail, return receipt requested, statingan intention to file such an action; and the appropriate government official does not, within 60days, institute the action, send notice to the citizen that the official has arranged for a settlement,or send notice stating an intent to commence suit within 60 days of the notice. 735 ILCS 5/20-104(b) (West 1998). The appropriate government official's failure to actually settle or commencesuit within the designated period also permits the citizen to sue. 735 ILCS 5/20-104(b) (West1998). The "appropriate government official" is the Attorney General, where the governmentalunit allegedly damaged is the State. 735 ILCS 5/20-104(b) (West 1998). Plaintiffs alleged thatthey were authorized to bring such an action pursuant to section 20-104 of the Code because theAttorney General of the State of Illinois had declined to initiate such an action in response to aletter sent by the BGA.⁽²⁾

On March 21, 2000, plaintiffs sought to disqualify the firm of Altheimer & Grey ascounsel for CFR, arguing that a conflict of interest was created where the firm and its membershad previously been retained by the State of Illinois on various matters, some of which wererelated to the allegedly illegal issuance of the CDLs. Following the submission of memoranda onthe matter, the trial court denied the disqualification motion on April 18, 2000.⁽³⁾

Shortly thereafter, the defendants moved to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2000)). In their motions, thedefendants argued that plaintiffs' claims were barred by the doctrines of res judicata andcollateral estoppel by reason of the judgment entered by the Federal District Court for theNorthern District of Illinois in Plotkin v. Ryan, No. 99 C 53 (Sept. 28, 1999).⁽⁴⁾ The defendantsalso argued that plaintiffs' complaint was barred pursuant to section 2-619(a)(3) due to thependency of the Plotkin suit. The defendants further argued that plaintiffs lacked standing tobring the claims alleged in Counts I, II and III of their complaint on behalf of the State, and thatthe BGA lacked standing with respect to count IV. The defendants argued that plaintiffs' claimswere barred by the doctrine of sovereign immunity. Finally, defendants claimed that count IVfailed to state a claim for which relief could be granted.

On July 25, 2000, following the submission of memoranda and argument on the matter,the trial court granted the defendants' motions to dismiss. The trial court ruled that: (1)plaintiffs' claims were barred under section 2-619(a)(3), due to the pendency of the Plotkin suit;(2) plaintiffs lacked standing with respect to Counts I, II and III of their complaint; and (3) theclaims for relief stated in count IV of the complaint were not recoverable under the Act. Plaintiffs now appeal.

Section 2-619.1 of the Code allows a party to combine motions to dismiss based onsections 2-615 and 2-619 of the Code. 735 ILCS 5/2-619.1 (West 2000). A section 2-615motion admits all well-pleaded facts and attacks the legal sufficiency of the complaint; a section2-619 motion admits the legal sufficiency of the complaint, but raises defects, defenses or otheraffirmative matter appearing on the face of the complaint or established by external submissionswhich defeat the action. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715N.E.2d 733, 736 (1999). Lack of standing may be raised under section 2-619. Glisson v. City ofMarion, 188 Ill.2d 211, 220, 720 N.E.2d 1034, 1039 (1999). Generally, dismissals under eithersection are reviewed de novo. R-Five, Inc. v. Shadeco, Inc., 305 Ill. App. 3d 635, 639, 712N.E.2d 913, 915 (1999). This court may affirm a correct dismissal for any reason appearing inthe record. Nielsen-Massey Vanillas, Inc. v. City of Waukegan, 276 Ill. App. 3d 146, 151, 657N.E.2d 1201, 1205 (1995).

Plaintiffs first contend that the trial court erred in dismissing Counts I, II and III of theircomplaint on the ground that they lacked standing to sue for the imposition of constructive trustsbased on public officials' alleged breaches of their fiduciary duties. Defendants argue that theplaintiffs cannot sue on behalf of the State of Illinois, noting that under both the 1870 and 1970state constitutions, that the Attorney General is the State's only legal representative in the courts. Environmental Protection Agency v. Pollution Control Bd., 69 Ill. 2d 394, 398, 372 N.E.2d 50,51 (1977); Fergus v. Russel, 270 Ill. 304, 337, 110 N.E. 130, 143 (1915).⁽⁵⁾ The AttorneyGeneral's duties are prescribed by law and include those powers traditionally held by theAttorney General at common law; generally, neither the legislature nor the judiciary may deprivethe Attorney General of his inherent powers under the Illinois Constitution to direct the legalaffairs of the State. Gust K. Newberg, Inc. v. Illinois State Toll Highway Authority, 98 Ill. 2d 58,67, 456 N.E.2d 50, 55 (1983); Environmental Protection Agency, 69 Ill. 2d at 399, 372 N.E.2d at52. For example, in Stein v. Howlett, 52 Ill. 2d 570, 587, 289 N.E.2d 409, 418 (1972), thesupreme court struck down portions of the Illinois Governmental Ethics Act that purported toauthorize the Secretary of State to render advisory opinions on questions concerning theinterpretation of the statute and to hire legal counsel for such purposes. The EnvironmentalProtection Agency decision held that the Pollution Control Board could not appoint privatecounsel to represent it, stating that"[t]o allow the numerous State agencies the liberty to employprivate counsel without the approval of the Attorney General would be to invite chaos into thearea of legal representation of the State." Environmental Protection Agency, 69 Ill. 2d at 402,372 N.E.2d at 53.⁽⁶⁾

In Fuchs v. Bidwill, 65 Ill. 2d 503, 359 N.E.2d 158 (1976), state taxpayers filed a suitagainst members and leaders of the Illinois General Assembly who allegedly purchased racetrackstock at a deflated price and made large profits upon resale. This advantageous purchase wasallegedly in payment for influencing favorable legislation affecting the operations andprofitability of thoroughbred and harness racing in Illinois. The plaintiffs claimed that thedefendants had breached their fiduciary duty to the public and sought an accounting, declarationsof constructive trusts and other equitable relief. Fuchs, 65 Ill. 2d at 505-08, 359 N.E.2d at 159-61.

The defendants in Fuchs argued that the plaintiffs lacked standing because permittingplaintiffs to sue would be an unconstitutional usurpation of the power of the Attorney General. Fuchs, 65 Ill. 2d at 508-09, 359 N.E.2d at 161. The supreme court noted that the taxpayer casescited in support of standing all involved "unquestionably public" funds or property alleged to bemisappropriated, misapplied or wrongfully retained. Fuchs, 65 Ill. 2d at 509, 359 N.E.2d at 161. The supreme court also noted that in the cases in which an equitable accounting was ordered or aconstructive trust imposed, the action was brought by the political entity whose property ormoney was involved. Fuchs, 65 Ill. 2d at 509, 359 N.E.2d at 161. The Fuchs court, while statingthat the alleged conduct was deplorable, ruled that the taxpayers lacked standing to sue, on theground that under our state constitution, it is left to the Attorney General to enforce the statutesregulating lobbying, campaign contributions, and governmental ethics. Fuchs, 65 Ill. 2d at 509-10, 359 N.E.2d at 162.⁽⁷⁾

Plaintiffs argue that Fuchs does not bar taxpayer standing in this case.⁽⁸⁾ Plaintiffs argue intheir brief that the holding in Fuchs "was limited to whether a taxpayer had standing to seek theimposition of a constructive trust on private profits and had nothing to do with public funds." Plaintiffs heavily rely on City of Chicago ex rel. Cohen v. Keane, 64 Ill. 2d 559, 357 N.E.2d 452(1976), in which Cohen sued on behalf of the City of Chicago, seeking an accounting fromKeane and others for all profits made by them through an alleged scheme to defraud the City andits citizens. Keane, a city alderman, allegedly took advantage of his office to purchase atscavenger tax sales properties which were to be designated as urban renewal sites, used hisgovernment position to clear liens on the properties, then profited upon their sale to the city orother entities. Cohen, 64 Ill. 2d at 561-62, 357 N.E.2d at 454. The supreme court held that theplaintiff had standing to sue, rejecting the argument that any sums that might be recovered werenot, when the action was filed, "money or property belonging to the municipality" within themeaning of the statute governing such suits, because the equitable principles undergirding thetaxpayer suit cannot be so confined. Cohen, 64 Ill. 2d at 568-69, 357 N.E.2d at 457.

Plaintiffs claim that Fuchs is inconsistent with Cohen. Indeed, plaintiffs note that then-Attorney General Scott so argued in a supplemental amicus curiae brief in support of the petitionfor rehearing filed in Fuchs and attached a copy of said brief as an appendix to their reply brief. Although it is not a proper part of the record on appeal, a well-reasoned opinion of the AttorneyGeneral is entitled to considerable weight, especially in a matter of first impression in Illinois;however, it is not binding on the courts. See Bonaguro v. County Officers Electoral Bd., 158 Ill.2d 391, 399, 634 N.E.2d 712, 715 (1994). Moreover, the supreme court did not modify itsopinion in response to that argument when it denied rehearing in Fuchs.

It is true that Cohen held that a taxpayer had standing to sue for profits made by a publicofficial in breach of his fiduciary duty, whereas Fuchs held that the taxpayer lacked standing tosue for profits made by public officials in an alleged breach of their fiduciary duties. It does notnecessarily follow, however, that Fuchs is inconsistent with Cohen. It is equally valid toconclude that what primarily distinguishes Fuchs from Cohen is not whether various funds aredeemed public funds, but that Fuchs involved state taxpayer standing to seek an equitableaccounting and constructive trust, whereas Cohen did not.⁽⁹⁾ It is true that a decision as tostanding may differ depending on the issue involved and the nature of the relief sought. Martiniv. Netsch, 272 Ill. App. 3d 693, 695, 650 N.E.2d 668, 670 (1995). But it is equally true thatstanding is primarily an issue of whether a particular plaintiff, acting in an individual orrepresentative capacity, may properly litigate a dispute or issue. In re Estate of Wellman, 174 Ill.2d at 345, 673 N.E.2d at 276. Thus, it should not be surprising that in determining issues ofstanding, the nature of the plaintiff is as important as the nature of the relief the plaintiff requests.

Plaintiffs contend that Fuchs is also inconsistent with Fergus, in which our supreme courtrecognized state taxpayer standing to sue to prevent the misappropriation of public funds. Fergus, 270 Ill. at 314-18, 110 N.E.2d at 135-36. Plaintiffs argue that under the "public trust"doctrine, a taxpayer's equitable interest in the public fisc or property which is being allegedly illegally disposed of confers standing to sue. See Paepcke v. Public Bldg. Commission of Chicago,46 Ill. 2d 330, 341, 263 N.E.2d 11, 18 (1970). The argument that Fuchs conflicts with Fergusalso was made by then-Attorney General Scott in his brief supporting the petition for rehearingfiled in Fuchs. Plaintiff's argument based on Paepke appears in the dissent in Fuchs. Fuchs, 65Ill. 2d at 511-12, 359 N.E.2d at 162-63 (Schaefer, J., dissenting). The Fuchs court apparentlywas unpersuaded by these arguments, as it denied rehearing without modifying its opinion.

Indeed, Fuchs cites Fergus to support the conclusion that the Attorney General is the onlyofficer empowered to represent the State in litigation in which it is the real party in interest. Fuchs, 65 Ill. 2d at 510, 359 N.E.2d at 162. Fuchs also cites People ex rel. Scott v. Briceland, 65Ill. 2d 485, 501-02, 359 N.E.2d 149, 151 (1976), which held a section of the EnvironmentalProtection Act unconstitutional to the extent that it authorized the institution and prosecution ofproceedings before the Pollution Control Board by an officer other than the Attorney General. Briceland, 65 Ill. 2d at 501-02, 359 N.E.2d at 151. The Fuchs court's express reliance onBriceland contradicts plaintiffs' perfunctory dismissal (in a footnote of their reply brief) ofBriceland, Gust K. Newberg, Inc., Environmental Protection Agency, and Stein as "inapplicableto this case because they do not address the issue of state taxpayer standing."

Furthermore, contrary to plaintiffs' arguments, Fuchs is not an anomalous decision inIllinois case law involving citizen and taxpayer lawsuits. In People ex rel. Kunstman v. ShinsakuNagano, 389 Ill. 231, 59 N.E.2d 96 (1945), a citizen brought a suit for the forfeiture of an alien'sreal estate. The citizen's standing to bring the action was questioned; the supreme court held thatbecause of the State's interest in the subject of the litigation, the citizen had no right to sue,adding that such a suit could not be brought by anyone except the State's Attorney. Kunstman,389 Ill. at 251, 59 N.E.2d at 105. The Kunstman court also held that the statute purporting toconfer citizen standing was unconstitutional, even though it purported to confer standing onlyafter the State's Attorney failed to act within 30 days of receiving notice that an alien was holdingtitle to lands in Illinois contrary to law. Kunstman, 389 Ill. at 251, 59 N.E.2d at 105. Thesupreme court noted that it had "always viewed a State's Attorney as a constitutional officer withrights and duties analogous to or largely coincident with the Attorney General, though notidentical, and the one to represent the county or People in matters affected with a public interest." Kunstman, 389 Ill. at 249, 59 N.E.2d at 104.

In People ex rel. Morse v. Chambliss, 399 Ill. 151, 77 N.E.2d 191 (1948), Morse broughta taxpayer suit seeking an accounting of the taxes, interest, penalties and costs due upon propertyof Chambliss, and foreclosure of the tax lien upon said property if the amount found due was notpaid. The supreme court rejected the argument that the suit was one to recover taxes misappropriated or misapplied, concluding that the suit sought the collection of unpaid taxes. Morse, 399Ill. at 158, 77 N.E.2d at 195. The supreme court held that the county board or other authorizedtaxing body must direct the bringing of such a suit and that the State's Attorney was the onlyproper person to bring such a suit. Morse, 399 Ill. at 157, 77 N.E.2d at 194.

Kunstman and Morse involved the constitutional prerogatives of a State's Attorney. However, the supreme court views a State's Attorney as a constitutional officer with rights andduties analogous to those of the Attorney General. See Kunstman, 389 Ill. at 249, 59 N.E.2d at104. The cases cited by the defendants, such as Briceland and the Environmental ProtectionAgency case, further demonstrate that the same constitutional concerns exist with respect to theAttorney General. Viewed in this historical context, Fuchs merely represents an application ofsettled case law regarding state citizen or taxpayer standing, rather than a radical restriction of thepublic trust doctrine. Indeed, the Morse court's requirement that the county board or otherauthorized taxing body must direct the bringing of a suit to collect unpaid taxes parallels theFuchs court's observation that prior actions seeking an equitable accounting or a constructivetrust were brought by the political entity whose property or money was ostensibly involved. SeeFuchs, 65 Ill. 2d at 509, 359 N.E.2d at 161.

In sum, plaintiffs are not bringing the traditional type of state taxpayer action approved inFergus.⁽¹⁰⁾ Instead, plaintiffs' complaint resembles the type of action disapproved in Fuchs, Kunstman and Morse. Thus, the trial court did not err in dismissing Counts I, II & III of the complaint.

The same reasoning applies to the trial court's dismissal of count IV of plaintiffs'complaint. As noted above, count IV of the complaint was based on section 20-104(b) of theCode, which provides in part that a private citizen may bring a suit to recover damages frompersons who have defrauded the State after notice to the Attorney General, if the AttorneyGeneral fails to take certain actions within 60 days. 735 ILCS 5/20-104(b) (West 1998).⁽¹¹⁾ Oursupreme court has stated that neither the legislature nor the judiciary may deprive the AttorneyGeneral of his or her inherent powers under the Constitution to direct the legal affairs of theState. E.g., Gust K. Newberg, Inc, 98 Ill. 2d at 67, 456 N.E.2d at 55. Our supreme court struckdown as unconstitutional a statute that similarly purported to confer standing on citizens inderogation of the powers of a State's Attorney because that office was viewed as similar to that ofthe Attorney General. Kunstman, 389 Ill. at 249, 59 N.E.2d at 104. Our supreme court hasconsistently stated that the public interest is not served by allowing certain government agenciesor private persons to assume the inherent powers of the Attorney General. See, e.g., Environmental Protection Agency, 69 Ill. 2d at 402, 372 N.E.2d at 53; Fuchs, 65 Ill. 2d at 509-10, 359 N.E.2d at 162.

Accordingly, this court must conclude that section 20-104(b) of the Code, no matter howwell-intentioned, is unconstitutional to the extent that it purports to confer standing on privatecitizens to sue in cases where the State is the real party in interest. Thus, plaintiffs also lackstanding to proceed on count IV of their complaint. The trial court did not err in dismissing it.

Similarly, plaintiffs also lack standing to move to disqualify the firm of Altheimer &Grey as counsel for CFR based on an alleged conflict of interest. See Schwartz v. Cortelloni,177 Ill. 2d 166, 174, 685 N.E.2d 871, 875 (1997). Plaintiffs claim standing in their reply brief onthe ground that they "stand in the shoes of the Attorney General in the prosecution of this action***." One of the cases plaintiffs cite in support of standing to bring a disqualification motion (allof which are federal cases involving the federal False Claims Act) states that the qui tam plaintiff"is essentially a self-appointed private attorney general ***." United States ex rel. Milam v.University of Texas M.D. Anderson Cancer Center, 961 F.2d 46, 49 (4th Cir. 1992). Evenassuming arguendo that this is a correct statement of federal law, it is clear under Illinois law thata state taxpayer generally cannot stand in the shoes of the Attorney General.

Given plaintiffs' lack of standing, this court will not pass upon their remainingarguments.⁽¹²⁾

We note in closing, as did the Seventh Circuit in dismissing the Plotkin litigation, that theBGA in the past has been instrumental in advancing government reforms in Illinois by usingjournalistic techniques and litigation to expose corruption. However, this court cannot ignoredecades of supreme court cases interpreting our state constitution in the name of goodgovernment.

For all of the aforementioned reasons, the orders of the circuit court of Cook County areaffirmed.

Affirmed.

BUCKLEY, J., and O'BRIEN, J., concur.

1. The parties refer to Article XX of the Code by various names, including the IllinoisFraudulently Obtained Public Funds Act and the Illinois Recovery Act, though Article XX has noofficial short title.

2. Plaintiffs state in their brief that the Attorney General "sanctioned" the initiation of thislawsuit and "permitted" them to move forward in his stead. Plaintiffs state in their reply briefthat they are not forcing the State to act against its will because the Attorney General"sanctioned" this action. Plaintiffs fail to identify where such sanction or permission appears inthe record on appeal. Plaintiffs attached a copy of a letter from the Office of the AttorneyGeneral, signed by a Deputy Attorney General for Civil Litigation, as part of the appendix totheir brief, but such attachments are not properly considered as part of the record on appeal. E.g.,Carroll v. Faust, 311 Ill. App. 3d 679, 683-84, 725 N.E.2d 764, 768 (2000).

Plaintiffs also fail to provide any argument, much less legal authority for the propositionthat a Deputy Attorney General for Civil Litigation has the power to sanction or permit privateparties to act for the Attorney General. Moreover, a review of the letter attached to plaintiffs'brief reveals no language showing such sanction or permission. However, it must be noted thatArticle XX of the Code does not require that the Attorney General sanction or permit suit by aprivate citizen.

3. Fawell and Chamness assert that plaintiffs also filed Lyons v. Ryan II, 00 CH 6030,against defendant Ryan in the circuit court of Cook County to contest the validity of the AttorneyGeneral's appointment of counsel to represent individual defendants in this lawsuit. Fawell andChamness state that plaintiffs voluntarily dismissed the action pending the outcome of thisappeal.

4. The record shows that the Plotkin litigation was brought by a resident and registeredvoter who voted for Ryan's opponent in the 1998 election; the BGA sued both on behalf of itsmember Illinois voters and in its own right, based on the time and money it spent investigatingthe defendants' alleged illegal conduct. The complaint's factual allegations relate to the illegalissuance of CDL's and Ryan's failure to remedy the situation. The Plotkin complaint wascomprised of 4 counts, generally alleging that: (1) Ryan and John Doe defendants, acting undercolor of state law, violated plaintiffs' rights under the first amendment to the U.S. Constitution, asprotected by 42 U.S.C.