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Judicial Watch • McCann v Dart 152983099-Def-s-Motion-to-Dismiss

McCann v Dart 152983099-Def-s-Motion-to-Dismiss

McCann v Dart 152983099-Def-s-Motion-to-Dismiss

Page 1: McCann v Dart 152983099-Def-s-Motion-to-Dismiss

Category:Legal Document

Number of Pages:11

Date Created:May 28, 2013

Date Uploaded to the Library:July 16, 2015

Tags:Dart, Illegal Immigration


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THE CIRCUIT COURT COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT. CHA DIVISION3
BRIAN MCCANN,
No. 10583 Hon. Mary Anne Mason
THOMAS DART his official capacity County Sheriff.
Defendant.
DEFENDANTS 619.1 IVIOT DISMISS INTIFI< COMPLAINT
CHANCERY FOR MANDAMUS AND ARATOR RELIEF
Now comes the Defendant. Thomas Dart. Sheriff the County Cook. Illinois Sheriff attorney, Anita Alvarez. State Attorney oak County, through Kent Ray,
Jill Ferrara and James Beligrat ssistant States Attorneys, and hereby moves dismiss Plaintiffs
Complaint Chancery for Mandamus and Declaratory Relief Coinplaint). pursuant 735 ILCS
5/2-6l9.l. support ofhis motion the Sheriff states summary that Plaintiffs Complaint should dismissed because: (1) the Sheriff cannot legally compelled administer enforce federal
regulatory program such immigration and the Complaint does not state cause non upon
which relief can granted pursuant section 2-615 the Code ivil Procedure; and (2)
Plaintiff has suffered injury fact legally cognizable interest and lacks standing bring the
Complaint pursuant section 2-619(a)(9) the Code Civil Procedure.
INTRODUCTION
The framers the stitution entrusted the power regulate immigration the political
br:tnc-hes the Federal Government. Matlzewr Diaz, 426 U.S. 67, (1976). Congress has
plenary power make rules for the admi ion ofaliens. Kleindierut Mandel, 408 U.S. 753, 766
(1972). Because igration and alien status are federal issues, the U.S. Congress has speci
which aliens may removed from the United States and the procedures for dotnv so. Arizona
I/71i!?dS!are.r, U.S. 132 Ct. 249 7017 US. 4872 (Z017
Pursuant its plenary power regulate immigration. Congress has enacted tad statutes. them I276. 12263. l357(d). I373 and I644, all which are cited the
Complaint (collectively, the Itmnigration Statutes). ese statutes provide various autl rizatio federal immigration 0lTl(.l2iS, iding those the Immigration and Customs l:n utcement
Agency ICE), enforce the nation nigration tlically, USC. 1226. 12263.
l357(d) and the asso ated regulation, C,F.R. 287.7, relate requests federal immigrati
officials local law tcemcnt officers detain aliens the custody local law enforcem
agency for additional period hours from the date upon which the alien would
otherwise have been eligible released tro custo ICE Detainers ).1 U.S.C. 1373 and
1644 bar local law enforcement officers from prohibitu SSII it.Ill commutticat
federal tgration officials regarding the citizenship immigration status pets
custod :11 law enforcement officers. congressional enactments, the Immigration Statutes constitute federal regulatory
program within the meaning OfPl l[Z United Stales. 521 US? 898, 117 Ct. 236 1997 US?
LEXIS (1997). which the United States Supreme Court held that the federal government cannot
command th* ates offt those their political subdivisions, administer enforce
federal regulato program. 111. 934. Based Printz, therefore, the Sheriff was and not
legally obligated participate enforcing the Immigration Statutes.
Knowing that the Sheriff had legal obligation honor ICE Detainer requests, the C00
County Board Commissioners enacted ordinance 2011 entitled licy for responding
ICE detainers Ordimu1ce). The Ordinance states:
(a) The Sheriff Cook County shall decline ICE detainer requests unless there written agreement with the federal govemment which all costs
The hour detainer requirement contained COFARV 2i 7.7(rlj.
incurred Cook County com} ing with the ICE detainer shall
reimbut
Unless ICE agents have criminal warrant. County officials have
legitimate law enforcement purpose that not related the enforcement
criminal lav ICE ents shall not given individuals allowed use Count_ for investigative int ews other purposes, and
County personnel shall not expend their time .pondin0 ICE inqu
communicating with ICE reg ing individuals eration status
release dates while duty. here being legal 1Iiorily upon which the federal gavernnlent may
compel expcrzdxture any resources comply with ICE detainer
issued pursuant I276; U.S.C. 1357td), there shall penditure any County ources efforts on-duty County persom purpose, except previously provided within this Ordinance.
Any who alleges violation this Ordinance may file Written
complaint for investigation with the Cook County Sheriffs Office
Protessional Review.
Cool: County Ordinances Sec. 46-37 (emphasis supplied). this lawsuit Plainti eeks order court compelling the Sheriff what the
Immigration Statutes cannot: devote Cou sources comply with federal ICE Detainer requests.
ARGUIVIENT
THE SHERIFF NOT LEGALLY REQUIRED ADMINISTER ENFORCE
FEDERAL IIVIIVIIGRATION LAW. THEREFORE, PLAINTIFF COIVIPLAINT
FAILS STATE CAUSE ACTION UPON VVHICH RELIEF CAN
GRANTED AND IVIUST DISMISSED UNDER SECTION 2-615. section 2-615 motion attacks the legal sufficiency complaint alleging defects its
face. Urlmilis ommonwealrlz Edison, 143 Ill, 458, 475 (1991). ruling section 2-615
motion dismiss. the Court must accept true all well-pleaded facts the complaint and all
reasonable interences which can drawn therefrom. McGmth Falxey, 126 Ill. 78, (1988).
making this determination, the Court interpret the allegations the complaint the light most
favorable the plaintiff. Id. The question presented motion dismiss complaint for failure
state cause action whether sufficient facts are contained the pleadings which. established.
Could entitle the plaintiffto relief. Url1ax!xs Commonwealth Ediran, 143 Ill. 453, 475 (1991). should not dismi the pleadings appear that set effacts
can proved under the pleadings which will entitle the plaintiff recover. vxuli iiniii.v Am.
[14/I/s.. I74 Ill. 77, (ISNIO). the instant se. the Complaint Coun declare the Ordinance invalid
preempted and Writ mandamus compel the Sheriff carry out the legal duti
represented 1226; 12263; I357(d): 1373; ILCS 5/3-6004; and ILC 5/3-
6021.2 (Complaint 28. 29, 37(A); (C)) state cause tion fur l11:{l1CiLlI11.lS, plaintiff must
lblish: (I) clear right relief the defendants clear duty and the
dcfcndan cl; iuthority comply with the relief souglit. [-14 mar Yam/h. 1013 App l725 Stated otherw mandamus order will compel public
official pertorm umdiscretionary, official duty. People rel. Birkett Konei ,rki, 233 Ill. 185. 192-93 (2009). Sue reliefwill not the instant mandamus cannot issue becai eritt, even
Ordinance. ha. legal duty comply the lmmig tion Statute This concl the Supreme Court ion Print: United Statex, 521 898; (2) the language ofthe
Imi igration Statutes U.S.C. 1357(d)) and regulations C.F.R 287.7(a))
administrative guidance issued the Immigration and Customs Enforcement Agency the topic
ICE Detainers and lCE current detainer form.
(1) Print; Uriiler1StatLs noted above. the Immigration Statutes are part Congress statutory scheme regulate
immigration. federally enacted legislation, the Immigration Statutes constitute federal
regulatory program within the meaning Prirztz United States, 521 US. 898. 117 Ct. 2365,
1997 U.S. LEXIS (1997). which the United States Supreme Court held that the federal
government cannot command the States officers, those their political subdivi 0115. The subject matter ILCS 5/3-6004 and ILCS 5/3-6021 relate the Sheriffs oath office and his role
conservator the peace, respectively.
administer enforce federal ie,gLIatm prugruin. 521 U.S. was rooted the Cruustitution concept dual SO elg11I_V its cxprc the Tenth
Amendments assertion that the powers not delegated the United States the Constitution. nor
prcvh .ited the States. are reserved the States. .21 L153!
was the validity the Brady Act. whose inte prov required,
zunnm_g other things. that local law entLn ceuc.nt agencies receive and review certain rearm tl.l
forms lrom tire .um dealers. perform baekgrotlnd checks and determine -vhether the proposed tirearm
transfer was legal illegal. The interim provisions also required local law enforcement agencies
provide written statements support ofany inding oftiearn1 ineligibility.
The Supreme Court invalidated the law, noting the tiamers the Constitution had
rejected the concept ofa central government that would act upon and through the States, and inst
designed system which the state and federal govcrnlnents would exercise concurrent authority
over the people. 521 US. 019 20. Citing its prior Mlw 11): lea/.S(uIv., 505 ,J.S.
144., 188 (1992), which held. dual sovereignty inciplcs, that the federal nent could
not compel the states enact administer federal regulatory tgrzutl. the reme Court held
that the provisions the Brady Aet violated that rule. 521 US. 933. Speci cally, the Suprem
Court stated that Congress cannot circumvent [the prohibition announced New York]
com ripling t/ta Slt7Iu dxrez:1[y. The Federal Government teither issue directives
requiring the States address particular problems, nor command the State rs, those
their political subdivisions, administer enforce federal regulatory program (emphasis
supplied). holding. the Supreme Court rejected arguments that (1) the concept dual
sovereignty was not violated where federal law required local law enforcement agencies perform
only tinistcrial, non-policymaking duties furtherance ofthc fcdei scheme (521 L13.
the Supremacy Clause ensured the validity ofthe Brady Act (521 924-925). the Plaintiff iI1teIpret:itinn the Immigration Statutes clearly lends
fctlcrzil ci:n1scription and cu11Imrid olan ntlicer ota political sul1di inn nfthe State Illinois.
120.. the Slierift adm cnfnrcc iccleru regulaI0r_y irogrzun. Printz, matters not
that the immigration Statutes may purport. Cll.l lCll7.t .(l impi only ministerial. non-
policyimlting ies upon Il\. Slieriff furtherance Cu11giess regulatory schem According
the holdings Prin/z, the Sheriit cannot legzilly it: Z0l1l]3Cllt. enforce the lnimigration Statutes.
For this reason, the Ordinance preventing the herlit train, anmng other thin
Dctainer requests has not been prceiiipted lJ_ dcral law and therefore valid. bears mentioning that least one ederal district court has cliaract ized ICE Detaincrs
volunta Bu//ucr Ci/y nfII1dit17m]m/i., 2011 US. LEX 63326 (SD. 1nd. June 24, cited herein pcrstnisive authori the mun stated that detainer not criminal warrant,
but rather vnluntii request that the law enforcement agency advise [federal immigration
authorities]. prior the case the alien. order for [the immigration authorities] assume
custod) Euquer *9. The ccurt clitiracterization I(. Dctaincr voluntary request
signil ant because this very cllaracter sation retlected the language of8 U.S.C. l357(d). cited the Complaint. Further. the ociatcd regulations C.F.R 287.7(a) recognizes that Congress
cannot com} local law enfurcenicnt officials. such the Sheriff, administer the tederzil
immigr ton scheme.
(2; U.S.C. 1357a!) and C.F.R zs7.7(a)
lCE statutory authority sue cletainers for persons local state C1imin.l custody
arises from U.S. d). entitled Detainer aliens for violation controlled substances
laws, which provides that [CE may issue detainer upon the rcqnesl Qfa local law erg/brcement
zlgency individual has been arrested for violating controlled substances laws and the local law
enforcement agency has reason believe that the per not have lawful status the United
States. Purportedly .1c pursuant Section l357(d), which, noted above, cli:-iracterizes
detzliners iumrd /{V Ilia :/LI(.1 Qf/null /aw erg/bicr /riuiil. ICF tied regulation, C.F.R.
7.7.
See 287. /la) clearly provides that ttctitincr request and not mzmdute the local
law enforcement Ligciicyl The regulation states:
Any ailtlimized immigratiun nth may any time issue l-247...to any
other Federal. State. lucnl law enforcement agency. det ner ise
another law rcement L-igelicy that the Depnnment CLISil)Ll_ alien sently the custody r-tthnt agency, te purpose 0fzuresting and rcnicwing the
lie tin/uiiicr *qm:., that such agelicy advi the Department, prior the thc alien, order for the Department arrange assume tad)
when gaining in1medi.ite ph_ custody either impracticable
impussihlc. C,F.R, Z87.7(a){e1uplinsi supplied). clear langiu-Age and zutieiiluted purp set forth Section 2S7.7tn) evidences that local law
entbrcement nfticers such the SicritTnu1y, but are net required, the impleincntation
federal immin ation law, including espect [CE Dctniners.
Section 287.7(d) nlso provides that once dctaincr lodged, the local law cnf
rcquests. More important] such reading fully inconsistent with the Supreme Court
decision Prim: United um, disc above. Finally. such interpretation inconsistent with
published administrative guidance. recently List! ICE local law ento ~ement agencies and
lCE current detainer form the effect that compliance local law enforcement with ICE
Detainers rol1u1tary.
(3) ICE Published Administrative Guidance and Current ICE Detainer Form August 2010, the US. Department Homeland Security issued its iigrat and
stems Enforcement. Secure Communities Standard erating Procedures Operating c(lurcs), cse Operating Procedures, which this Court may i;1l{ jLlLllClLll public
Llucum instant and unqueslioltulvle Liel101Sl.ILll.l0l1, are available
w\\.1ce.go//docib/fuia/secure-communities/securecomm tiesops93009.pdf (13.6; ICE Interim
Policy No. lU07~l.1). The lead p.uaigiapl1 Sec ion 2.2 pcratiiig Proccdilres, enti
Requested Local LEA )ope1.-1 Action. states: ensure that the idenlifuation. detention and removal
ICE gum/.s1l1a1 the LEAS... [allow
detainees and [C131 acquiring unnatiun about detuimc
(eniplmsis supplied). delainer Form (DHS Form rev. ll/ll). available www.ice.gov/doclib/ secIre-
oim.pdf, which this Court also [nay take judicial notice
local law cnforccincnt agcnc Form states, lcvant part: REQUESTED THAT YOU: Maintain custody the subject for period
beyond the time when the sub can rele sed rom your custody allow DHS talle euslod} ofthe
his requesl derives from federal regulation CFR. 287.7.
(italics supplied) evident from the above, the Department Homeland Security own interpretation the law whether compliance with [CE Detainers local law enforcement agencies niandatory
voluntnr_ accord with the language U.S.C. l357(d) and its associated regulation, C.F.R.
7.7(a), and fully consistent with the United States Supreme Court decision Prirztz
United States.
Courls may ejudicial notice ofnmtlers are capable ofinstant and unquestionable demonstration. Dawdy
Union Fa: R.R 207 Ill. 2:1 167. (2003) including public documents which. included the rccords
administrative tribunals. M11yDeplSmre: Co. T2am.rrnzrS Um