injunction against the party that had prevailed in state court to
prevent it from executing its judgment prior to an appeal to a
state appellate court). That case is not precisely on point
because there, judgment had been entered, whereas in the case
before me the goal is to prevent judgment from being entered.
However, judgment need not have been entered for Younger abstention
to be appropriate.

The Seventh Circuit states that abstention is appropriate “if
the impacted state proceedings satisfy the following requirements:
(1) the judicial or judicial-in-nature state proceedings are
ongoing; (2) the proceedings implicate important state interests;
and (3) there is an adequate opportunity in the state proceedings
to raise constitutional challenges.” AFSCME v. Tristano, 898 F.2d
1302, 1305 (7th Cir. 1990). These requirements are satisfied here.
The state court proceedings are obviously judicial. The State of
Illinois has set forth what it believes to be, and what I agree
are, important state interests in its ability to regulate
charitable institutions. It is not necessary that I endorse the
policy adopted by the state to recognize that the interests it
invokes are important. Finally, there was - and as far as I know
still is - ample opportunity to raise any constitutional challenges
in the state court proceedings.

The plaintiffs respond that section 1983 provides an exception

to the usual application of Younger because federal protection is


carry out the order. In that case it was not necessary to cali the
sheriff. The court held that “[t]he fact that the sheriff remained
in the background and hence could not be joined as a defendant does
not deprive Carpenter Cook's action in enforcing a judicial order
of its character as state action.” Id. at 1346. Here, it would
not be possible to say that Drs. Marshall and Stebbins invoked the
power of the Illinois Attorney General’s office, which remains in
the background: they are not argued to invoke any power; they have
no court or administrative order to carry out, and they could not
call in Mr. Perkins to back them up if they wanted to, which, the
plaintiffs argue, they do not.

The plaintiffs’ best shot is the “state compulsion” test,
under which a § 1983 claim may be stated “when the state has so
implicated itself in the defendant's action that the state has in
effect compelled the action.” Starnes v. Capital Cities Media,
Inc, 39 F.3d 1394, 1396 (7th Cir. 1994). This test originated in
Adickes v. S. H. Kress & Co., 398 U.S. 144, 170 (1970). There the
Court held that a “state is responsible for the [unconstitutional]
act of a private party when the state, by its law, has compelled
the act.” ‘When the State has commanded a particular result, it has
saved to itself the power to determine that result and thereby 'to
a significant extent’ has ‘become involved’ in it.’” Id. (citation
omitted). However the command has to involve action under color of

some “statute, ordinance, regulation, custom, or usage, of a


party to bring suit in federal court, three constitutional
requirements under Article III must be met: ‘“(1) the party must
have personally suffered an actual or threatened injury caused by
the defendant's illegal conduct; (2) the injury must be fairly
traceable to the challenged conduct; and (3) the injury must be
one that is likely to be redressed by a favorable decision.” United
Transp. v. Surface Transp. Board, 183 F.3d 606, 611 n.2 (7th Cir.
1999). In this case, the last requirement is missing.

The only defendant named is Mr. Perkins. It would do no good
to enjoin him from interfering in Board business or intimidating
the directors with respect to the meeting at question. The State
of Illinois says that he is in Canada, and does not even know that
he has been sued. As the State says, with respect to his
involvement, tomorrow is the best time to hold the meeting.

The plaintiffs really want me to enjoin Drs. Marshall and
Stebbins from voting or coming to the meeting, but they are not
defendants. If they were named, however, they could not be sued
under section 1983, the basis for my jurisdiction. The plaintiffs
suggest that they can be enjoined as persons acting “in consort”
with the defendant, or as his agents. But they offer no authority
that persons who have been intimidated or influenced by a state
actor are acting in consort with them or as agents of those who
intimidate them, or indeed that they could be named as section 1983

defendants at all. That section requires state action. And that


needed in such cases to vindicate plaintiffs’ rights against state
abuses. This is not in general true. For example, in Simpson v.
Rowan, 73 F.3d 134, 138 (7th Cir. 1995), the court affirmed the use
of Younger abstention in a § 1983 case seeking civil relief for
constitutional violations of a man convicted of a crime; accord
State of Indiana v. Haws, 131 F.3d 1205, 1210 (7th Cir.
1997) (quoting from Barichello v. McDonald, 98 F.3d 948, 954 (7
Cir. 1996): “younger has ‘come to mean that absent unusual
circumstances, a federal court must refrain from entertaining
injunctive relief which might interfere with the ... judicial
process of state courts ....’”). Section 1983 is not a magic key
into federal court, especially when, as here, there is ample
opportunity to litigate the constitutional issues in state court.
Moreover, there is no reason to think that the plaintiffs require
the special protections of federal court even though the state is
a party to the state court action. The only basis that the
plaintiffs give for thinking there may be a problem with the state
court is that the very able state court judge is elected. That is
not a reason to think that she cannot fairly resolve charges of
misconduct made against the state and its officers, such as Mr.
Perkins.

Even if I were not to abstain, however, I could not grant the
temporary restraining order sought by the plaintiffs. In the first

place, plaintiffs do not appear to have standing. In order for a


actors share a common, unconstitutional goal.” Id. If the
directors in question are unwillingly intimidated, however, they
are not willful joint actors who share Mr. Perkin’s hypothetically
unconstitutional goals. See Moore v. Marketplace Restaurant, Inc.,
754 F.2d 1336, 1352 (7th Cir. 1985).

I suppose one could be an unwilling co-conspirator, but what
is alleged here is not that Drs. Marshall and Stebbins share any
unconstitutional goals or have conspired, however unwillingly, to
deprive the plaintiffs of their rights, but that they were somehow
coerced into changing their votes on the settlement, basically to
get Mr. Perkins off their backs, which change will have the effect
of furthering Mr. Perkin’s unconstitutional goals. That is not
what is required.

But the situation for the plaintiffs is worse than this
analysis suggests. “To state a § 1983 claim against a private
actor, plaintiffs must show that the defendant invoked state
authority in such a way that the defendant should be considered a
state actor.” Davis v. Union National Bank, 46 F.3d 24, 25 (7th
Cir. 1994). For example in Del's Big Saver Foods, Inc. v. Carpenter
Cook, Inc., 795 F.2d 1344 (7th Cir. 1986), the court held that a
private person became a state actor for purposes of the state
action requirement when he repossessed collateral on the strength
of an ex parte order issued by a court. The ex parte order

instructed the sheriff to assist the private person if need be to


ISG

y
Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge ’ than Assigned Judge
CASE NUMBER 01 C 4976 DATE 6/28/2001
CASE The Terra Foundation, et al. vs. Perkins
TITLE
Un the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) QO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due
(4) ao Ruling/Hearing on set for at
(5) gO Status hearing[held/continued to] [set for/re-set for] on _ set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) o Trial[set for/re-set for] on at
(8) a {Bench/Jury trial] [Hearing] held/continued to at
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) OGeneralRule21 O FRCP41(a)(1) O FRCP41(a)(2).
do) «xf [Other docket entry] The plaintiffs’ motion for a temporary restraining order is heard and denied.
Plaintiffs’ oral motion to place the pleadings under seal is denied. Plaintiffs’ applications to admit
Leonard Garment, Lawrence E. Levinson, K. Chris Todd, Neil Gorsuch, and John H. Longwell to appear
pro hac vice is granted. Enter memorandum opinion and order. As there is nothing further pending
before this court, this action is dismissed.
(11) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
2
No notices required. umber of notices
Notices mailed by judge’s staff. 4
ie WN 29 ann
xX Notified counsel by telephone. date docketed
Docketing to mail notices.
X | Mail AO 450 form. iN)
Copy to judge/magistrate judge. woe
PYLE ¢
courtroom 29 PHI2 13
MPy deputy’s Gh June
initials
Date/time received in
central Clerk's Office railing deputy initials



Marshall and Stebbins, but all he did was to name one in a proposed
amendment to a lawsuit and allegedly investigate the school of
another.

Moreover, the conduct being induced (a changed vote) is not
itself unlawful, unlike the racial discrimination involved in
Adickes. Essentially the plaintiffs argue that Mr. Perkins used his
undoubtedly legitimate authority to name Dr. Stebbins in a
complaint and to investigate Dr. Marshall’s school in order to get
them to do something lawful, which the plaintiffs argue will have
unfortunate effects. If the directors had just changed their minds,
the plaintiffs would just have to live with it. What difference,
as far as their status as potential § 1983 defendants goes, does it
make if they changed their votes because of the inducements by Mr.
Perkins? Even if Mr. Perkin’s intentions were to violate the
plaintiffs’ constitutional rights by getting these directors to
vote to approve the settlement, the plaintiffs do not explain,
either with authority or with logic, how the directors can be
charged with violating the plaintiffs’ rights even under compulsion
if they do what they had a lawful right to do in any event.

Since enjoining Mr. Perkins would be pointless, and Drs.
Marshall and Stebbins are not state actors and cannot be sued under
Section 1983, there is no relief that I can give that would redress
plaintiffs’ complaint. They lack standing. I abstain in any

event. The plaintiffs’ motion for a temporary restraining order

11


State,” in the language of § 1983 itself. Id.

The actions challenged here are not analogous to the facts in
Adickes, where a white woman was denied restaurant service (and
subsequently arrested for vagrancy) because she was in the company
of African-Americans. The Supreme Court held that it would satisfy
state action if she showed that she was refused service by the
defendant restaurant as the result of a state enforced custom
compelling segregation of the races in Mississippi restaurants.
Adickes, 398 U.S. at 171. In this case, there are two actions
alleged to force the directors to change their votes. One is
proposing to name Dr. Stebbins as a defendant in a lawsuit. The
other is investigating Dr. Marshall’s school. These are both
official practices, but in the first place, neither of these
involve a “command.” They do not require the conduct they are
supposed to induce - that these directors change their votes. The
difference between inducement and requirement is a matter of
degree, but not every incentive and disincentive is coercive. For
example, in Mendoza v. United Farm Workers Organizing Committee,
487 F.2d 311, 312 (9% Cir. 1974) (per curiam), the court rejected
the idea that a union shop agreement that grows out of the “normal
give and take of collective bargaining and labor-management
relations,” is coercive, although anyone must recognize that it
involves various threats and unwelcome inducements. It might be

different if Mr. Perkins had held a gun to the heads of Drs.

10


is hard to show.

The Supreme Court has articulated several tests for when
private action is state action: the “public function” test, the
“state compulsion” test, the “nexus” test, and the “joint action”
test. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982). Of
these, only the “joint action” and “state compulsion” tests are
worth considering. The tests are fact-specific. "Only by sifting
facts and weighing circumstances can the nonobvious involvement of
the State in private conduct be attributed its true significance.”
Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961);
Dunham v. Frank's Nursery & Crafts, Inc., 919 F.2d 1281, 1284 (7th
Cir. 1990).

The “joint action” theory, articulated in cases like Dennis v.
Sparks, 449 U.S. 24, 27 (1980), says that a private defendant acts
under color of state law when he is “a willful participant in joint
action with the State or its agents.” A charge of joint action
amounts to alleging “some agreement between private and public
actors to violate plaintiff's constitutional rights.” Cunningham v.
Southlake Center for Mental Health, Inc., 924 F.2d 106, 107 (7th
Cir. 1991) (citing Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983)
(“To prove a conspiracy between private parties and the government
under § 1983, an agreement or 'meeting of the minds' to violate
constitutional rights must be shown.”)). “A requirement of the

joint action charge therefore is that both public and private


and involving the same subject matter raised in their federal court
complaint. It is actually a proposed resolution of those lawsuits
through a settlement which is expected to be voted on tomorrow that
plaintiffs seek to stop. Plaintiffs say that neither the Rooker-
Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983), nor the Anti-Injunction Act, 28 U.S.C. § 2283, prohibit
this court from acting so long as it acts before the anticipated
consent decree is entered in state court, but assuming that is so,
principles of comity and federalism call for abstention where the
issues raised can be litigated in the ongoing state action and
where action by the federal court would interfere in the state
proceeding.

The State of Illinois, representing Mr. Perkins, invokes
Younger v. Harris, 401 U.S. 37 (1971), in support of abstention.
Younger holds that federal courts cannot enjoin ongoing state
criminal proceedings unless extraordinary circumstances are
present. In a companion case, Samuels v. Mackell, 401 U.S. 66
(1971), the Court applied a similar result to actions for
declaratory judgment because they would also interfere with state
prosecutions. Younger has been extended widely, including to civil
contexts. For example, the State of Illinois likens this case to
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (Younger abstention

appropriate when the relief sought by the federal plaintiff was an


about to vote to substantially change the by-laws of the Terra
Foundation and take other acts that will force the Terra Foundation
to keep its valuable art collection in Illinois for many years.
Plaintiffs seek a temporary restraining order that would prevent
either the vote that is expected to take place tomorrow, June 29,
2001, from taking place, or would prevent the two allegedly
intimidated directors from taking part in that vote. Plaintiffs
have not sued the two directors.* Plaintiffs nevertheless say that
an injunction against the Attorney General will prevent either any
vote from taking place or the two directors’ participation in that
vote on the ground that because of the intimidation the two
directors have become de facto agents of the Attorney General.
They argue therefore that an injunction against the defendant will
be binding on the directors.

There are at least two problems with plaintiffs’ attempted
resolution of their conflict in this court. First, there is an
ongoing lawsuit (two actually) presently pending in the Circuit

Court of Cook County in which the present plaintiffs are defendants

charges of conflict of interest in an amended complaint drafted but
never filed by the State of Illinois in related state litigation.

2 plaintiffs did offer to add them as defendants but the
addition of Dr. Marshall would almost certainly prevent diversity
jurisdiction, alleged presently, and unless they are state actors,
could not form a basis for subject matter jurisdiction under 28
U.S.C. § 1343(a) (3), the second basis on which plaintiffs allege
subject matter jurisdiction. See 42 U.S.C. § 1983. Whether they
can plausibly be considered to be acting under color of state law
is discussed further in this opinion.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKET ED

THE TERRA FOUNDATION FOR THE ARTS, JUN 29 209;
an Illinois Not-for-Profit Corporation,

PAUL HAYES TUCKER, Director, Chairman,
and President, the Terra Foundation for
the Arts, ALAN K. SIMPSON, Director,
the Terra Foundation for the Arts, and
JUDITH TERRA, Director, the Terra

Foundation for the Arts,
Plaintiffs,
vs. No. 01 C 4976
FLOYD D. PERKINS, in his official

capacity as Assistant Attorney General,
State of Illinois,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs, The Terra Foundation for the Arts, Paul Hayes
Tucker, Alan K. Simpson, and Judith Terra, the latter three all
directors of the Terra Foundation, have sued Floyd D. Perkins, an
Assistant Attorney General for the State of Illinois who is charged
with enforcing the State’s charitable institution laws, alleging
that Mr. Perkins violated their federal constitutional rights to
due process and freedom of speech by intimidating two other Terra

Foundation directors who, as a result of the intimidation, are

+ Dr. Stephanie Marshall is head of the Illinois Mathematics
and Science Academy, an elite but public high school in Illinois.
The other director in question, Dr. Theodore Stebbins, is curator
of the Fogg Museum at Harvard University and has no ties to public
institutions in Illinois but was allegedly intimidated by proposed


must therefore be denied. The action is dismissed.

ENTER ORDER:

Elaine E. Bucklo
United States District Judge

Dated: June 28, 2001

12