Jason Gonzales v. Michael J. Madigan

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1874
J ASON G ONZALES,
Plaintiff-Appellant,
v.
M ICHAEL J. MADIGAN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 7915 — Matthew F. Kennelly, Judge.
____________________
ARGUED N OVEMBER 10, 2020 — DECIDED MARCH 8, 2021
____________________
Before E ASTERBROOK, KANNE, and S CUDDER, Circuit Judg-
es.
EASTERBROOK, Circuit Judge. Michael Madigan was elect-
ed to the Illinois House of Representatives at age 28 in No-
vember 1970 and re-elected to 25 additional two-year terms.
He became Speaker of the House in 1983, a position he re-
tained with the exception of two years when the Republican
Party controlled the House. He became Commi]eeman of
the 13th Ward Democratic Organization in 1969 and Chair-

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2 No. 20-1874
man of the state’s Democratic Party in 1998. In January 2021
he withdrew from the race to be reelected as Speaker. The
next month he resigned his seat in the House and his role as
Chairman of the statewide party, though he retains his post
in the 13th Ward. His 36 years as Speaker make him the
longest-serving head of any state or federal legislative body
in the history of the United States.
Madigan comfortably won both primary and general
elections for his entire political career. Most years he ran un-
opposed in the Democratic primary; some years he ran un-
opposed in the general election. When he faced opposition,
the races were not close. Which makes it hard to understand
the conduct he is accused of in this suit.
Four candidates were on the ballot for the Democratic
primary in spring 2016: Michael Madigan, Jason Gonzales,
Grasiela Rodriguez, and Joe G. Barboza. Madigan won with
65% of the votes cast; Gonzales received 27%, Rodriguez 6%,
and Barboza 2%. Gonzales contends in this suit under 42
U.S.C. §1983 that Rodriguez and Barboza were stooges put
on the ballot by Madigan’s allies to divide the Hispanic vote
and ensure Madigan’s victory. The effort was hardly neces-
sary, since if every non-Madigan vote had gone to Gonzales
he still would have lost in a landslide. Nonetheless, Gonzales
contends, the appearance of two candidates who served only
as distractors violated the Equal Protection Clause in the
Fourteenth Amendment and entitles him to damages (per-
haps represented by the expenses of his failed run). Gonza-
les relies on Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973),
which held that a stalking-horse candidacy, in which the
nominal contestant secretly planned to withdraw after win-
ning the primary and permit a party commi]ee to name the

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No. 20-1874 3
candidate for the general election, could in principle violate
the Equal Protection Clause.
In the district court and this court the parties have debat-
ed quite a few issues, such as whether the margin of Madi-
gan’s victory in 2016 defeats the claim and whether Gonzales
has demonstrated that state action is behind the appearance
of Rodriguez and Barboza on the ballot. (Section 1983 is lim-
ited to actions under color of state law.) The district judge
ultimately held a single issue dispositive: whether, if Madi-
gan was behind Rodriguez and Barboza (he denies having
any role), that sponsorship was a secret. The district judge
thought that the key to the holding of Smith was the voters’
ignorance of the stalking horse’s plan to facilitate the ap-
pointment of someone who was not on the ballot. Gonzales
smelled a rat from the start and made that known to the elec-
torate, which swept Madigan back into office anyway. An
editorial in the Chicago Sun-Times agreed with Gonzales
about the provenance of the Rodriguez and Barboza candi-
dacies, so the voters did not have to take his word for it. Our
Endorsements for the Illinois House, CHICAGO SUN-TIMES (Feb.
19, 2016). Because the voters were not deceived, the judge
held, the conditions leading to liability in Smith have not
been satisfied. The court granted summary judgment against
Gonzales. 403 F. Supp. 3d 670 (N.D. Ill. 2019).
Gonzales’s response has been to file an appellate brief
that treats the district judge as an extra defendant. According
to Gonzales, the judge personally violated the First Amend-
ment by penalizing Gonzales’s campaign speech. That u]er-
ly misunderstands the burdens of production and persua-
sion in litigation. To prevail, any litigant must establish the
elements of a valid claim. One aspect of that claim, under the

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4 No. 20-1874
analysis of Smith, is that the voters have been hoodwinked.
Gonzales’s own speeches and ads during his campaign show
that the voters were not hoodwinked. End of case. Recogniz-
ing this does not penalize anyone’s speech. It shows, rather,
that Gonzalez did not satisfy the governing legal standard.
Imagine a contract case. Green promises to deliver a ton
of steel to Perkins, who files suit claiming that Green did not
perform. Green responds by producing a wri]en acknowl-
edgment by Perkins that the steel was received in good con-
dition. Perkins loses—not because his speech (the acknowl-
edgment) has been penalized, but because evidence shows
that his claim of nondelivery is false. Likewise if Perkins
signs a release, which Green tenders as an affirmative de-
fense. See Fed. R. Civ. P. 8(c)(1). Speech, including state-
ments in depositions and answers to interrogatories, often
affects the outcome of litigation, but a judge who takes ac-
count of speech that proves or refutes the plaintiff’s claim
does not violate the First Amendment.
Gonzales also accuses the district judge of violating the
Due Process Clause and the Equal Protection Clause. Those
assertions—advanced without elaboration in one-half page
of the appellate brief—do not require independent analysis.
That’s all we need to say, but we cannot close without
remarking that we have applied Smith as wri]en without
endorsing its reasoning or disposition. The opinion in Smith
does not explain why political deceit violates the Equal Pro-
tection Clause. We mean no disrespect to politicians in rec-
ognizing that many false statements are made during politi-
cal campaigns and that many a stratagem that one side
deems clever will be seen by the opposition as a dirty trick.
Opposing political figures may brand true statements as

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No. 20-1874 5
false and honest campaigning as a ro]en subterfuge. Voters
rather than judges must decide when one side has gone
overboard. We explained why in Jones v. Markiewicz-
Qualkinbush, 892 F.3d 935, 939 (7th Cir. 2018):
Politics is a rough-and-tumble game, where hurt feelings and
thwarted ambitions are a necessary part of robust debate. See
Manley v. Law, 889 F.3d 885 (7th Cir. 2018). It is impossible to im-
agine the judiciary a]empting to decide when a politically retali-
atory step goes “too far” without displacing the people’s right to
govern their own affairs and making the judiciary just another
political tool for one faction to wield against its rivals. The right
response is political … . … Any effort by the judiciary to stop one
politician from proposing and advocating steps that injure an-
other politician would do more to violate the First Amendment
(the right to advocate one’s view of good policy is the core of
free speech) than to vindicate the Equal Protection Clause.
Gonzales told the voters that (in his view) Madigan had
played a dirty trick. The electorate nonetheless sided with
Madigan. The Constitution does not authorize the judiciary
to upset that outcome or to penalize a politician for employ-
ing a shady strategy that voters tolerate.
Smith was a bolt from the blue. It does not have any pre-
decessors that we could find. Nor has it had any successors.
Rudisill v. Flynn, 619 F.2d 692 (7th Cir. 1980), pre]y much
confines it to its facts. None of our decisions since Rudisill
has relied on Smith to hold that any candidate’s mischief
during a contested election violates the Equal Protection
Clause. As far as we can tell, none of the other courts of ap-
peals has ever reached a decision similar to Smith; certainly
none has ever relied on Smith to vindicate one politician’s
view that an opponent overstepped the bounds of propriety.
See, e.g., Pignanelli v. Pueblo School District No. 60, 540 F.3d
1213, 1219 (10th Cir. 2008) (distinguishing Smith because

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6 No. 20-1874
“voters had a real choice between real candidates” in a
school board election). We need not decide today whether
Smith should be overruled, but we are confident that it
should not be extended.
AFFIRMED

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