Cerletti v Hennessy amended complaint 556164
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ROBERT PATRICK STICHT (SBN 138586) Law Offices Robert Patrick Sticht P.O. Box 49457 Los Angeles, 90049 Telephone: (310) 889-1950 Facsimile: (310) 889-1864 Email: LORPS@verizon.net Sterling Norris (SBN 040993) JUDICIAL WATCH, INC. 2540 Huntington Drive, Suite 201 San Marino, 91108 Telephone: (626) 287-4540 Facsimile: (626) 237-2003 Email: jw-West@judicialwatch.org Attorneys for Plaintiff SUPERIOR COURT THE STATE CALIFORNIA COUNTY SAN FRANCISCO CYNTHIA CERLETTI, Case No.: CGC-16-556164 Plaintiff, VICKI HENNESSY, her Official Capacity Sheriff the City and County San Francisco. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Defendant. INTRODUCTION Plaintiff CYNTHIA CERLETTI, taxpayer and resident the City and County San Francisco, California CCSF seeks enjoin Defendant VICKI HENNESSY, her official capacity Sheriff CCSF, from expending taxpayer funds and taxpayer-financed resources illegally substantially restricting, not prohibiting, San Francisco Sheriff Department SFSD personnel from sharing information with federal immigration officials about the citizenship, immigration status, and time and date release criminal aliens SFSD custody. Plaintiff contends that Defendant restrictions are unlawful because they are preempted federal law. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JURISDICTION AND VENUE Jurisdiction this case founded California common law taxpayer standing doctrine and Code Civil Procedure section 526a, which grants California taxpayers the right sue government officials prevent unlawful expenditures taxpayer funds and taxpayer- financed resources. The mere expending paid, public official time performing illegal unauthorized acts constitutes unlawful use funds that may enjoined, and immaterial that the amount the expenditure small that enjoining the illegal expenditure will permit savings tax funds. Blair Pitchess, Cal.3d 258, 268 (1971). Venue this Court appropriate under Section 393 the Code Civil Procedure Defendant official CCSF and the taxpayer funds and taxpayer-financed resources issue are being expended CCSF. Regents the University California Karst, Cal.3d 529, 542 (1970) [F]or the purpose venue, the action arises the county where the agency spends the tax money that causes the alleged injury. PARTIES Plaintiff CYNTHIA CERLETTI citizen and taxpayer, and has paid property and other local taxes CCSF during the one-year period prior the commencement this action. Defendant VICKI HENNESSY the Sheriff CCSF, public officer and the head SFSD. Defendant charged law with keeping CCSF jail and receiving all prisoners committed jail competent authorities. S.F. Cal. Charter 6.105. Defendant being sued her official capacity. STATEMENT FACTS The Government the United States has broad, undoubted power over the subject immigration and the status aliens. Arizona United States, 567 U.S. 387, 394 (2012). This authority rests, part, the National Government constitutional power establish uniform Rule Naturalization, Art. cl. and its inherent power sovereign control and conduct relations with foreign nations. Arizona 567 U.S. 394-95. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Federal governance immigration and alien status extensive and complex. Id. 395. Congress has specified which aliens may removed from the United States and the procedures for doing through the enactment the Immigration and Naturalization Act, U.S.C. 1101 seq. INA Arizona, 567 U.S. 396. principal feature the removal system the broad discretion exercised immigration officials. Id. State and local governments enjoy power with respect the classification aliens. Plyler Doe, 457 U.S. 202, 225 (1982). That power committed the political branches the federal government. Id. Immigration and Customs Enforcement ICE agency within the U.S. Department Homeland Security DHS charged with enforcing the INA. ICE conducts criminal investigations involving the enforcement immigration-related statutes. Arizona, 567 U.S. 397 (internal citations and quotations omitted). ICE officers are responsible for the identification, apprehension, and removal illegal aliens from the United States. Id. 10. aid the enforcement the INA, Congress has long sought encourage full and open communication between state and local entities and federal immigration officials. Congress also has sought remove obstacles such communication. 11. August 1996, the U.S. Congress amended the INA include provision prohibiting all restrictions State local government entities sending receiving information from federal immigration officials regarding alien immigration status. U.S.C. 1644. 12. September 1996, Congress amended the INA again further clarify that Federal, State, local government entity can prohibited any way restricted from sending information receiving information from federal immigration officials regarding individual citizenship immigration status. U.S.C. 1373(a). The amendment also expressly prohibits all restrictions Federal, State, local government entities sending, requesting, receiving, exchanging information to, from, with federal immigration officials regarding individual immigration status. Id. 1373(b). 13. 2012, the U.S. Supreme Court found that [c]onsultation between federal and state officials important feature the immigration system. Arizona, 567 U.S. 411. The FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Court also noted that Congress has encouraged the sharing information about possible immigration violations. Id. 412 (quoting U.S.C. 1357(g)(10)(A)). According the Court, examples such cooperation include allow[ing] federal immigration officials gain access detainees held state facilities and state officials responding requests for information about when alien will released from their custody. Id. 410 (internal citations omitted). II. 14. Congress also has mandated that the Attorney General take certain categories criminal aliens into custody upon their release federal, state, local law enforcement agencies. U.S.C. 1226(c). These categories include, inter alia, aliens convicted aggravated felonies, two more crimes moral turpitude single crime moral turpitude for which the alien has been sentenced least one (1) year jail, controlled substance and certain firearm offenses, and terrorist activities. Id. Congress requires the Attorney General take any such alien into custody when the alien released without regard whether the alien released parole, supervised release, probation, and without regard whether the alien may arrested imprisoned again for the same offense. 15. The federal government also has prioritized these same categories criminal aliens, well other categories, for removal. Exec. Order No. 13768, Fed. Reg. 8799, 8800 (Jan. 25, 2017). 16. all relevant times until April 2017, DHS categorized certain criminal aliens suspected priority aliens and designated them immigration enforcement priorities. When ICE learned suspected priority alien state local law enforcement agency custody, issued DHS Form I-247N Request for Voluntary Notification Release Suspected Priority Alien the law enforcement agency. The notice identified the name, date birth, suspected citizenship, and sex the subject. informed the law enforcement agency that ICE suspected the subject was removable alien and immigration enforcement priority and identified, from list options (e.g., conviction aggravated felony significant misdemeanor why the subject was enforcement priority. The law enforcement agency was asked provide notice early practicable (at least hours, possible, before the subject released from your FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF custody. The reason for the request was allow DHS opportunity determine whether there probable cause conclude that she removable alien. 17. April 2017, ICE began using consolidated form, DHS Form I-247A entitled Immigration Detainer Notice Action, request information about the release criminal alien and provide notice ICE intent assume custody the alien. Like the earlier form, DHS Form I-247A gives the name, date birth, suspected citizenship, and sex the subject. Unlike the earlier form, however, the new form informs the law enforcement agency that DHS has determined that probable cause exists that the subject removable alien and identifies, from list options, the basis for the probable cause determination. The form also provides contact information for providing the notification. III. 18. CCSF has declared itself City and County Refuge and, this end, has adopted what calls Sanctuary City law. section entitled Immigration Status, CCSF Sanctuary City law generally prohibits, with limited exceptions, the use City funds resources gather disseminate information about individual release status any other such personal information. S.F. Cal. Admin. Code ch. 12H.2(a) and (c). 19. CCSF Sanctuary City law defines personal information broadly include any confidential, identifying information about individual. S.F. Cal. Admin. Code ch. 12I.2. information and belief, identifying information about individual includes information about the individual citizenship and immigration status. 20. separate section CCSF Sanctuary City law, entitled Restrictions Law Enforcement Officials, prohibits responding federal immigration officer notification request, which defined include formal and informal requests for notification individual release from local custody. S.F. Cal. Admin. Code ch. 12I.2 and 12I.3 21. The only exception this prohibition notification request regarding individual who has been convicted Violent Felony the past seven years, Serious Felony the pasts five years, three separate, particular, serious violent felonies the past five years, provided further that magistrate has also determined there currently probable cause FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF believe the alien guilty particular, serious violent felony and has ordered the alien answer for the offense. S.F. Cal. Admin. Code ch. 12I.3(d). Even the individual meets both criteria, before responding notification request, law enforcement officials also are required consider whether any mitigating factors warrant denial the request. Id. IV. 22. Since taking office, Defendant has substantially restricted, not prohibited, SFSD personnel communications with ICE about inmates citizenship and immigration status and the time and date criminal aliens release from SFSD custody. information and belief, these restrictions reflect Defendant independent judgment about how aliens should classified when they commit crimes, whether and when criminal aliens should should not removed from the United States, and, more generally, the conditions that should granted imposed aliens the United States. They also reflect, information and belief, her judgment about how CCSF Sanctuary City law should read and implemented. 23. Before Defendant took office, her predecessor had issued directive All SFSD Personnel expressly prohibiting them from providing information ICE representatives about the citizenship/immigration status any inmate release dates times inmates, among other information. 24. After Defendant took office, she issued directive April 11, 2016, Reference No. 2016-051, entitled Immigration and Custom Enforcement Procedure (ICE) Contact and Communication, purportedly revoking her predecessor directive and putting place her own. 25. information and belief, Defendant April 11, 2016 directive keeps place her predecessor prohibition SFSD personnel providing information ICE about inmates citizenship immigration status. Under the headers AUTHORIZED and NOT AUTHORIZED, Defendant directive lists categories information SFSD personnel are and are not authorized provide ICE. While Defendant predecessor directive had expressly stated that SFSD personnel shall not provide information ICE representatives about the citizenship/immigration status any inmate, Defendant April 11, 2016 directive does not identify citizenship/immigration status information SFSD personnel are authorized FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF provide. Citizenship and immigration status are not listed under either header. addition, the directive states, Any questions requests received from ICE representatives, especially those not covered here, shall referred Sheriff Legal Counsel. minimum, Defendant directive prohibits SFSD personnel from providing information about inmates citizenship immigration status ICE directly, but must instead refer any ICE requests for such information Defendant counsel. 26. Like her predecessor directive, Defendant April 11, 2016 directive expressly prohibits SFSD personnel from providing inmates release dates and times ICE. Under the NOT AUTHORIZED header, the directive states that Sheriff staff members are not authorized provide Release dates and times ICE representatives and advises SFSD personnel that Per Administrative Code 12H.2.1 are currently the process working guidelines that will initiate review process for each person for whom receive request for notification release. have been reviewing all requests for notification release received date for this purpose All ICE requests for Voluntary Notification (DHS Form I-247D I-247N) will continue forwarded Administration without action. 27. information and belief, Defendant subsequently developed her own classifications criminal aliens, different from the classifications criminal aliens set forth the INA and Executive Order 13768, apply determining whether SFSD will provide inmates release dates and times ICE. further information and belief, Defendant classifications criminal aliens are similar, but not identical, the classifications set forth CCSF Sanctuary City law. information and belief, these determinations have been centralized within SFSD ensure Defendant control over them. further information and belief, these determinations require analysis whether alien subject ICE notification request meets specific criminal history threshold and whether any mitigating factors warrant denial the request. 28. Pursuant CCSF Administrative Code Chapter 12I.5, Defendant required report, semi-annual basis, all communications received from federal immigration officials and all communication SFSD made federal immigration officials, including but not limited release notification requests and responses. S.F. Cal. Admin. Code ch. 12I.5. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 29. September 28, 2016 report Defendant provided CCSF Mayor Edwin Lee, SFSD received communications from ICE between January 2016 and June 30, 2016, including request for detention, requests for transfer, and requests for release information, but SFSD did not respond any them. Other than meeting between Defendant, her staff, and ICE officials February 11, 2016, Defendant reported other communication from SFSD and ICE. 30. SFSD receives millions dollars taxpayer support annually. Fiscal year 2014-15, SFSD was appropriated approximately $190 million from CCSF general fund finance its operations. Fiscal Years 2015-16, SFSD was appropriated nearly $200 million from CCSF general fund finance its operations. CCSF adopted budget for Fiscal Year 2016-17 appropriated nearly $208 million SFSD from the general fund finance SFSD operations. The primary source funds for CCSF general fund are property taxes and other local taxes such those paid Plaintiff. 31. information and belief, Defendant has expended taxpayer funds and taxpayer- financed resources purportedly revoking and replacing her predecessor directive. information and belief, Defendant also has expended taxpayer funds and taxpayer-financed resources preparing and issuing her own directive and restrictions sharing information with ICE, communicating her directive and information-sharing restrictions SFSD personnel, CCFS Board Supervisors, and others CCFS government, training SFSD personnel the directive and restrictions, and implementing, enforcing, defending, and otherwise carrying out the directive and restrictions. FIRST CAUSE ACTION (Taxpayer Claim Citizenship and Immigration Status) (Express Preemption) 32. Plaintiff incorporates paragraphs reference fully set forth herein and further alleges follows: 33. actual and justiciable controversy has arisen and now exists between Plaintiff FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF and Defendant. Plaintiff contends that she has paid property and other local taxes CCSF during the one-year period prior the commencement this action and that Defendant expending taxpayer funds and taxpayer-financed resources illegally substantially restricting, not prohibiting, SFSD personnel from sharing information about inmates citizenship immigration status with ICE. Plaintiff further contends that these restrictions are illegal because they are expressly preempted U.S.C. 1373 and 1644 and the INA. information and belief, Defendant contends she not expending taxpayer funds and taxpayer-financed resources illegally. 34. Plaintiff has been irreparably harmed and will continue irreparably harmed Defendant illegal expenditure taxpayer funds and taxpayer-financed resources. information and belief, these illegal expenditures will continue unless and until enjoined. 35. judicial declaration pursuant California Code Civil Procedure 1060 necessary and appropriate that the parties may ascertain their respective legal rights and duties with respect Defendant illegal expenditure taxpayer funds and taxpayer-financed resources. 36. Plaintiff also has adequate remedy law. SECOND CAUSE ACTION (Taxpayer Claim Release Information) (Express Preemption) 37. Plaintiff incorporates paragraphs reference fully set forth herein and further alleges follows: 38. actual and justiciable controversy has arisen and now exists between Plaintiff and Defendant. Plaintiff contends that she has paid property and other local taxes CCSF during the one-year period prior the commencement this action and that Defendant expending taxpayer funds and taxpayer-financed resources illegally substantially restricting, not prohibiting, SFSD personnel from sharing information with ICE about the release dates and times suspected priority aliens. Plaintiff further contends that these restrictions are illegal because they are expressly preempted U.S.C. 1373 and 1644. information and belief, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Defendant contends she not expending Plaintiff taxpayer funds and taxpayer-financed resources illegally. 39. Plaintiff has been irreparably harmed and will continue irreparably harmed Defendant illegal expenditure taxpayer funds and taxpayer-financed resources. information and belief, these illegal expenditures will continue unless and until enjoined. 40. judicial declaration pursuant California Code Civil Procedure 1060 necessary and appropriate that the parties may ascertain their respective legal rights and duties with respect Defendant illegal expenditure taxpayer funds and taxpayer-financed resources. 41. Plaintiff also has adequate remedy law. THIRD CAUSE ACTION (Taxpayer Claim Release Information) (Implied Preemption) 42. Plaintiff incorporates paragraphs reference fully set forth herein and further alleges follows: 43. actual and justiciable controversy has arisen and now exists between Plaintiff and Defendant. Plaintiff contends that she has paid property and other local taxes CCSF during the one-year period prior the commencement this action and that Defendant expending taxpayer funds and taxpayer-financed resources illegally substantially restricting, not prohibiting, SFSD personnel from sharing information with ICE about the release dates and times suspected priority aliens. Plaintiff further contends that these restrictions are illegal because they are impliedly preempted the INA they stand obstacle clear purpose and objective Congress and constitute impermissible state local classification aliens and/or regulation immigration. information and belief, Defendant contends she not expending Plaintiff taxpayer funds and taxpayer-financed resources illegally. 44. Plaintiff has been irreparably harmed and will continue irreparably harmed Defendant illegal expenditure taxpayer funds and taxpayer-financed resources. information and belief, these illegal expenditures will continue unless and until enjoined. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 45. judicial declaration pursuant California Code Civil Procedure 1060 necessary and appropriate that the parties may ascertain their respective legal rights and duties with respect Defendant illegal expenditure taxpayer funds and taxpayer-financed resources. 46. Plaintiff also has adequate remedy law. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for the following relief against Defendant: First Cause Action judgment declaring Defendant expenditure taxpayer funds and taxpayer- financed resources substantially restricting, not prohibiting, SFSD personnel from sharing information about inmates citizenship immigration status with ICE illegal; injunction permanently prohibiting Defendant from expending causing the expenditure taxpayer funds and taxpayer-financed resources substantially restrict, not prohibit, SFSD personnel from sharing information about inmates citizenship immigration status with ICE; Costs suit herein; Reasonable attorney fees under the Private Attorney General Statute, Code Civil Procedure 1021.5, the Common Fund Doctrine, and the Substantial Benefit Doctrine; and Such other relief the Court deems just and proper. Second Cause Action judgment declaring Defendant expenditure taxpayer funds and taxpayer- financed resources substantially restricting, not prohibiting, SFSD personnel from sharing information with ICE about the release dates and times suspected priority aliens illegal; injunction permanently prohibiting Defendant from expending causing the expenditure taxpayer funds and taxpayer-financed resources substantially restrict, not prohibit, SFSD personnel from sharing information with ICE about the release dates and times suspected priority aliens; Costs suit herein; FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF