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Illinois Petition

Illinois Petition

Page 1: Illinois Petition

Category:Legal Document

Number of Pages:16

Date Created:July 24, 2015

Date Uploaded to the Library:July 24, 2015

Tags:petition, Illegal Immigration, illinois, State, Supreme Court

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CaseNo._ THE
Petition for Leave Appeal
from the Appellate Court.
First Judi District, Fifth sion
Case No. 1-14-1291
his official capacity
Cook County Sheriff Appeal from the
Circuit Court Cook County
Case No. 10583
Trial Judge: Jean Prendergast Rooney
Christine Svenson Paul Orfanedes
111. Bar No. 6230370 111, Bar No. 6205255
Cook County Attomey No. 44565 Cook County Attorney No. 43158
505 Lasalle Street. Suite 350 Third Street. S.W., Suite 800
Chicago, 60654 Washington, 20024
Tel: (202) 646-5172
Fax: (312) 467 902 Fax: (202) 646-5199
Artorney.:_for Plaintiff-Petitioner
JUN 2015
supngma eourrr
Pursuant Illinois Supreme Court Rule 315, Plaintiff Brian McCann respectfully
requests that this Court grant him leave appeal the March 27. 2015 decision the
Illinois Appellate Court, First District, striking Plaintiffs brief and dismissing his appeal.
Illinois Supreme Court Rule 315 confers jurisdiction upon this Court. The
Appellate Court issued its decision March 27, 2015. Plaintiff subsequently petitioned
for rehearing, and. April 27, 2015, the appellate court denied the petition. The ling this petition for leave appeal June 2015 timely.
Since least early 1903, Illinois courts have recognized the right citizens bring suit compel public officials carry out their legal duties. Under this long-
established principle, Plaintiff Brian McCann. lifelong citizen Cook County. sought
mandamus and declaratory relief remedy the refusal Defendant Cook County Sheriff
Thomas Dart tolcarry out clear, non-discretionary legal duties imposed him
federal and state law. Instead reaching the merits Plaintiffs claims and ordering
Defendant comply with these duties, the Circuit Court Cook County ruled that
Plaintiff did not have standing challenge Defendants refusal carry out his legal
duties. The court concluded that Greer Illinois Housing Development Authority, 122
Ill. 2d. 462 (1988) Greer impliedly overruled years precedent holding that
Illinois citizens have standing sue public officials carry out their legal duties.
Plaintiff appealed this narrow. purely legal issue. The appellate court never
decided whether Greer impliedly overruled years precedent, however. ruled
erroneously Plaintiffs View that Plaintiffs opening brief did not comply with this
Court Rules, and took the extraordinary and rare step dismissing the appeal.
demonstrated his rehearing petition, Plaintiff presented all the information both
necessary and required for the appellate court decide the narrow, purely legal issue
before it. The appellate court abused its discretion dismissing the appeal.
Consequently, this Court should exercise [its] supervisory authority and hear Plaintiff
appeal. addition. the underlying issue great general importance. Whether this impliedly ovenuled years precedent and took away longsmnding right
Illinois citizens hold public officials accountable undoubtedly important.
minimum. this Court not circuit court should have the final say the impact
its rulings. The Court should grant this petition decide whether citizens still have the
ability seek mandamus and declaratory relief remedy the refusal public officials carry out clear, non-discretionary legal duties.
The Circuit Court Ruling.
Plaintiff. lifelong citizen Cook County, sought mandamus and declarat
relief remedy the refusal public officials carry out clear, non-discretionaiy legal
duties imposed him federal and state law. Complaint (App 121
response, Defendant moved dismiss under both 735 ILCS 2-619(a)(9) Section
619(a)(9) and 735 ILCS 5/2-615 Section 2-6l5). Opinion and Order (App 114).
With respect the Section 2-61 )(a)( motion, Defendant argued that Plaintiff,
private individual Without alleged harm, lacks standing compel [Defendant] carry
out his legal duties. Id. (App 115). With respect the Section 2-615 motion.
Defendant argued that Plaintiffs complaint fails state cause action upon which
relief can granted because [Defendant] has legal duty enforce the immigration
statutes issue. Id. other words, the circuit court first needed decide whether
public duty standing was still available Plaintiff light Greer. were
available, the circuit court next needed decide whether the complaint stated claim
against Defendant for violati his legal duties. Defendant Section 2-619(a_)(9)
motion raised the first issue. Defendants Section 2-615 motion raised the second issue.
After briefing and hearing the motions, the circuit court addressed
Defendant Section 2-6l9(a)(9) motion rst. Id. (App 114). concluded that Greer
impliedly overruled years precedent holding that Illinois citizens have standing
sue public officials cany out their legal duties and, result, Plaintiff lacked
standing. Id. granted Defendant Section 2-619(a)(9) motion dismiss. then denied
Defendant Section 2-615 motion for mootness. Id. The circuit court did not address
any way the merits Defendanfs argument that had legal duty enforce the
federal immigration statutes cited Plaintiff. Because public duty standing was not ilable Plaintiff. the circuit court did not need nor did ide whether
Plaintiff satis it. its ruling, the circuit court succinctly summarized the issue:
The parties dispute the standing requirements for action for writ
mandzmzus Illinois. The Sheriff argues that the Illinois Supreme Court
established the threshold for standing Illinois uiring
that plaintiff must affected adversely fact the alleged illegal
action. Greer. 122 Ill. 488. contrast, Plaintiff argues that Greer
did not explicitly overrule prior Illinois case law concerning standing
requirements for writs ufnmndamus, and thus the holdings his four
cited cases establish that has standing: People rel. Newdelman
Swank, 131 Ill. App. (1st Dist. 1970); People exrel. Gamber
Board ofSupcrvzsors the County 0fGaIIat1rz, 294 I11. 579 (1920):
People ex. rel. Faulkner Har 203 I11. 272 (1903); and Hill Butler.
107 Ill. App. 721 (4th Dist. 1982) (all holding that resident and
citizen has standing seek mand and declaratory relief remedy
the failure and/or refusal public rcial carry out his/l1er duties).
Id. (App 16). addition. the court noted that had reviewed all the cases cited the parties and concluded that Greer controls the issue standing and requires
dismissal the complaint. Id.
The circuit court ruling was plainly limited whether Greer controls. The
issue whether Defendant had legal duties that refused carry out was never
addressed any way.
II. Plaintiffs Appeal.
Plaintiff appealed the circuit court ruling Defendant Section 2-6l9(a)(9)
motion. See gezremlly Opening Brief Plaintiff-Appellant (App 7-46). Specifically.
Plaintiff challenged the circuit court ruling that Greer impliedly overruled years
precedent recognizing public duty standing. Id. (App 11). Because the circuit
court denied Defendant Secti motion concerning whether Defendant even had legal duty. Plaintiff was not and could not have been aggrieved that denial.
also could not have appealed it. Trompeter Cbrzstrucfian Canzpany First Federal
Savings Loan .-1s.:ociation. 111. App. 173. 175 (3d Dist. 1978) (only parties who
consider themselves aggrieved the judgment may appeal). Therefore, when Plain
led his opening brief, focused solely the granting Defendanfs Section 9(a)(_ motion and whether the circuit court nding that Greer controlled.
Opening Brief Plaintiff-Appellant (App 7-46). Plaintiffs opening brief did not
address whether Defendant had the legal duties alleged i11 the complaint because the
circuit court did not reach that issue and denied Defendants Sectit motion
moot. Id.
III. The Appellate Caurt Ruling.
Although recognized that Plaintiff only appealed the circuit court grant
Defendant 2-619(a)(9) motion LCarm Dart, 2015 App (lst) 141291 1[l (App
2)), the appellate court nonetheless ruled that Plaintiff failed provide the court with
suff ient facts, law. and argument tto decide the issue before it. Id. The court also
stru Plaintiffs opening brief for failing comply with Supreme Court Rule 341 and
dismissed the appeal. Id.
Plaintiff timely sought rehearing the appellate court ruling. Plaintiff-
Appellant Brian McCann Petition for Reliearing (App 102-113). Plaintiff demonstrated
that his appeal focused solely the ruling issue: the granting Defendant Section
2-61 9(a)(9) motion the grounds that Greer impliedly overruled public duty standing.
See id. The appellate court denied Plaintiff petition for rehearing without discussion.
Mc(zmn Dart. 2015 App (lst) 141291 (App l).
The Appellate Court Abused Its Discretion Dismissing the Appeal. focusing the ruling issue the granting Defendants Section 9(a)( motion the grounds that Greer impliedly overruled public duty standing
Plaintiff abided the appellate courts admonition that [1]eviewing courts are entitled have the issues clearly ned and cited pertinent authorities and are not
depository which appellant dump the entire matter pleadings. court action.
argument. and research were, upon the court. Daniel Ripoli, 2015 Ill, App.
LEXIS 52, *38 (1st Dist. Jan. 28, 3015). Plaintiffpresented all ofthe pertinent
authoriti facts, and arguments necessary for the court decide the narrow, purely legal
issue before it. Plaintiff did not brief all the other issues raised his lawsuit because
doing would have dump[ed] the entire matter pleadings. court action, argument,
and research the Court. These additional matters, including those raised the
Section 2-615 motion denied the Circuit Court, were irrelevant determining Whether
public duty standing survived Greer.
Plaintiff opening brief also complied with Illinois Supreme Court Rule 341.
The rule states tl1at [i]n case involving the construction validity statute.
constitutional provision, treaty. ordinance, regulation, the appellant must provide the
court with pertinent text the authority. Ill. Sup. Ct. 34l(h)(5l. The public duty
standing which Plaintiff relied common law doctrine recognized Illinois courts
since least early 1903. statute, istitutional provision, treaty, inance,
regulation granted Plaintiff standing. Nor was the constructio validity any such
provision necessary determine whether public duty standing survived Greer.
appeal. the only relevant authorities were the cases Plaintiff cited his opening brief.
Rule 341 also requires that appellant present Statement Facts, which shall
contain the facts necessary undersL1nding the case, stated accurately and fai
without argument comment. Ill. Sup. Ct. 34l(_h)(6). The only facts necessary
understand the narrow. purely legal issue whether public duty standing survived
Greer that Plaintiff citizen Cook County and that Defendant public
official. Because the circuit court ruled the merits Defendants Section 2-61 9(a)(9)
moti only and did not reach the merits Defendant Section 2-615 motion. facts
concerning the federal immigration statutes, the ordinance. and the actions the
Defendant were not necessary understanding this narrow, purely legal issue.
This conclusion supported the circuitcou1ts decision. The only factual allegation
referenced the circuit court ruling Defendants Sectio 2-6 9(a:)(9) motion was
Paragraph One the Complaint. Opinion and Order (App 118) Plaintiff alleges
that resident and citizen Cook County. Plaintiff has standing seek mandamus
and declaratory relief remedy the failure and/or refusal Cook County public officials
.,. carry out their legal duties, (quoth mplaint (App 12l))).
Rule 341 also requires that appellant present argument that contains the
contentions the appellant and the reasons therefor. with citation the authorities and
the pages the record relied on. Ill. Sup. 341(h)(7). Any argument and
information submitted the appellate court beyond the narrow. purely legal issue
whether Greer irnpliedly ovemtled public duty standing would have been extraneous
and burdensome the court. Plaintiff avoided burdening the appellate court with
unnecessary arguments. did 11ot disregard the requirements Rule 341. Plaintiff fully complied with Rule 341 and provided the appellate court
with clear and concise argument demonstrating that the circuit court erred nding
that Greer inipliedly overruled years public duty standing. Plaintiffs opening
brief identi that narrow. purely legal issue. presented the few facts relevant the
issue. and cited all the pertinent authorities could find rega the issue. The
appellate court erred finding otherwise. compound its error, the appellate court did not allow Plaintiff resubmit his
opening brief correct the any Way. Instead, without oral argument
seeking clari cation. the appellate court dismissed Plaintiffs appeal. doing so.
abused its discretion. People Johnson. the appellant made virtually attempt
comply with [Rule 341(c)(7)]. Almost cvery page [appellant] brief contains
references the record with supporting citations. 192 Ill.2d 202. 205 (2000).
oral argument. this Court sought explanation from appellant. Id. 206. Although
appellant failed provide sufficient explanation. the Court did not dismiss the appeal.
Instead. reached the merits. The Court explained:
Generally. the consequences for lure comply with Rule 34l(e)(7) are
that the issues will deemed ed. More speci cally. the appellate
court has held that the failure include record citations when the
argument requires examination the rec results iver the
issue appeal. When the appellate court faced with briefs that fail
comply with Rule 34l(e)(6) 341(e )(7), but the rec short and the
issues are simple, the court ordinarily will admonish the attorney but
address the issues anyway.
Id. (internal citations omitted). contrast, the appellate court here chose the harshest
course. could have asked for clari cation. requested re-brie ng. admonished
Plaintiff attorneys. Instead, dismissed the appeal. This Court should exercise [its]
supervisory authority granting the petition and allowing Plaintiff have his appeal
ll. Greer Did Not Impliedly Overriile Years Precedent.
The Court also should grant this petition decide issue great general
importance whether Greer took away the right Illinois citizens seek mandamus
and declaratory relief remedy the refusal public officials carry out their duties} 1903, this Court held: proceeding for mandamus oinpel public officers
perform duty the public[,] not necessary that the
entire public join the complaint but they may speak
interfere through one their citizens. the people being the
real party. Nor necessary, this kind proceedina.
for relator show that has any legal interest the
result the suit.
People ex. rel. Faulkner Harris, 203 Ill. 272. 277 (1903). Harris the plaintiff
alleged that the mayor Champaign and other city officials failed remove
obstruction from city street, violating both state law and ordinances, Id. The
defendants. response. asserted that the plaintiff did not have standing because
defendants did not cause speci injury the plaintiff. Id. The Court disagreed. held
the act perfonned the defendants error duty which the people the whole State are interested. and doubt entertained the right any citizen the city become relator and institute this proceeding.
therefore evident that the relator, citizen
Champaign, was proper person institute this
Id. addition, reaffirmed: Although the appellate court dismissed the appeal procedural grounds. this
Court has the authority consider the merits the underlying issues. See Healy
I/zmpel, 133 Ill. 295, 302-305 (1990). ere tl1e object the enforcement public rigl1t[,] the
people are regarded the real party, and relator need not
show that has any legal interest the result.
enough that interested. citizen, having the laws
executed and the right question enforced. The object
the suit not matter individual interest, but public
concern. Any citizen the county. especially the
locality interested having the improvement prosecuted,
could become tl1e relator and obtain the mandamus.
Id. (internal citations omitted).
Relying Harris, this Court held 1920 that citizen Illinois had standing
bring mandamus claim against the board county supervisors Gallatin County and
its members command them repair the courthouse and provide and keep repair
suitable reproof safes ces for the county clerk, county treasurer, recorder, sheriff
and the clerks the several courts rec said county. People rel. Gamber
Board Supervisors the Cozmry Gallzzrin, 294 I11. 579, 580 1920). concluding
that the citizen had standing, the Court stated, [H]e citizen and tax-payer and the
duty enjoined upon the board supervisors duty the public. the performance
which may compelled any citizen without showing that has any legal interest ir1
the suit. Id. 581-582.
Relying those two cases, well others, appellate court held 1970 that
Illinois citizens had standing seek mandamus require the Director the Illinois
Department Public Aid grant one month rent security deposits public aid
recipients required law. People rel. Newdelman Swtmk, 131 Ill. App. 74, lst Dist. 1970). reaching its holding, this court emphasized:
Even though citizens may not have any legal rights directly
affected the failure public officials carry out their
legal duties, nevertheless such persons members the
public have the right insist that public officials carry out
their legal duties.
The Swank decision clear. showing speci injury not required. addition, 1982, another appellate court held that citizens had standing
compel the board managers Chatham Township hold referendum required
law. Hi/I Butler, 107 Ill. App. 721. 725 (4th Dist. 1982). The court, like other
appellate courts and this Court before it, ruled that citizens have standing seek
mandamus [w]here the object [of the lawsuit] the enforcement public right
because the people are regarded the real party. and the relator need show that
has any legal interest the result. Id. The Hill decision can summarized one brief
sentence: enough that interested citizen having the laws properly
executed. Id.
Importantly, neither Defendant nor the circuit court disputed the existence this
long-established type standing. fact. the circuit court found that the cases relied
upon Plaintiff all hold[] that resident and citizen has standing seek mandamus
and declaratory relief remedy the failure and/or refusal public official carry out
his/her duties. Opinion and Order (App 16).
Nevertheless, the circuit court dismissed Plaintiffs case. Opinion and Order
pp. 3-5 (App 116-118). concluded that Greer impliedly overruled least years
precedent and ruled that citizens Illinois not have standing sue state and local
public officials Illinois who refuse carry out their legal duties. Id. The circuit court
arrived this conclusion solely because [t]he cases that Plaintiff cites were all decided
before Greer. Opinion and Order (App 118). course, any precedential scope decision limited the facts before the court. People Palmer, 104 Ill. 340,
345-346 (1984). Not being public duty standing case, the facts Greer were
inapposite. Greer could not and did not impliedly overrule years precedent. Greer, homeowners living near the site proposed housing project for Very
low-income tenants challenged decision the Illinois Housing Development
Authority IHDA provide funding for the project and the agency approval
tenant-selection plan. 122 Ill. 470, 487. The issue before this Court was the
proper test for assessing standing challenge the illegality administrative action.
Id. 487. The IHDA argued that, addition injury fact. the plaintiffs also needed show that the interests they asserted their complaint lay within the zone
interests protected the statute question, the Illinois Housing Development Act. Id.
The Court held that zone interests analysis was not necessary and that the plaintiffs
had standing. Id. 92. the instant matter. Plaintiff does notchallenge the illegality
administrative action agency. challenges the refusal public official
comply with clear, non-discretionary legal duties. Greer simply does not apply. addition, the Court Greer did not discuss the various types standing
recognized under Illinois law. did not purport change the existing law standing
establish new rules governing standing all future cases any type. did not address
the long-standing right citizens seek mandamus and declaratory reli remedy the
refusal public cialsrto carry out their legal duties. Nor did state that was
overruling years precedent abolishing all other types standing, including the
one asserted Plaintiff. The Court only addressed the narrow issue before it: whether
standing challenge the illegality administrative action required more than just injury fact The Court held that nothing more was required. this Court well aware, any departure from stare decisis must specially
justified. Thus, prior decisions should not overruled absent good cause
compelling reasons. People Colon, 225 Ill. 125. 146 (2007) (internal citations
omitted). There good cause compelling reason overrule least eighty-
five years precedent holding that citizens Illinois have standing sue state and
local public als Illinois who refuse carry out their legal duties. The circuit
court not find good cause compelling reason so. fact. given Illinois
long history public corruption, there are compelling reasons for this Court reverse
the lower courts rulings and reaffirm the right Illinois citizens protect themselves
from ultra vires acts corrupt practices government officials. See Illinois has long
lega fpublic uurruptio least elected afficiuls have been convicted
twvngdoing rice 1972. (Dec. 2008) (available
Now more than ever, citizens need the ability hold public officials accountable,
including the ability remedy the refusal public officials carry out their legal
duties. The type standing recognized this Court Harri., long ago and repeatedly
reaffirmed until the circuit court ruling allows forjust that. Greer did not take that right
away from the people. The circuit court was wrong taking away from Plaintiff. The
Court should grant Plaintiffs petition order decide onclus ely whether Illinois
citizens still have the rightt mpel public officials carry out their legal duties.
For the foregoing reasons, the petition for leave appeal should granted.
Dated: June 2015 Respectfully submitted.
Chnstme Venson Paul Orfedes
Ill. Bar No. 230370 111. Bar No. 6205255
Cook County Attorney No. 44565 Cook County Attomey No. 43158
505 LaSa.lle Street. Suite 350 425 Third Street, S.W., Suite 800
Clu ago, 60654 Washington, 20024
Tel: (312) 467-2900 Tel: (202) 646-5172
Fax: (312) 467-2902 Fax: (202) 646-5199
Cazmselfor laimzjf
the requirements Rules 315(0) and 341(a) (e). The length this petition, excluding
the cover, the attached certi cates, and the appendix, pages.
Paul Oedes