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THE CIRCUIT COURT COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
BRIAN McCANN,
Plaintiff,
vs.
THOMAS DART, his official
capacity Cook County Sheriff,
Defendant.
Case Number: 10583
Hon. Mary Anne Mason
PLAINTIFF CORRECTED MEMORANDUM OPPOSITION DEFENDANT 2-619.1 MOTION DISMISS PLAINTIFF
COMPLAINT CHANCERY FOR MANDAMUS AND DECLARATORY RELIEF
Plaintiff Brian McCann Plaintiff counsel, respectfully submits this memorandum opposition Defendant motion dismiss. grounds therefor, Plaintiff states follows:
MEMORANDUM
Introduction.
Plaintiff, lifelong resident and citizen Cook County, brings this action remedy the
refusal Cook County Sheriff Thomas Dart Defendant carry out his legal duties.
Specifically, Plaintiff alleges that Defendant refuses carry out two, specific legal duties
imposed him federal and state law. First, Plaintiff Complaint asserts that, when served
with notice detainer federal immigration officials, Defendant has legal duty maintain
custody alien already Defendant custody for not more than hours beyond the time
that the alien would otherwise released. Second, Plaintiff Complaint asserts that Defendant
has legal duty refrain from prohibiting restricting communications the exchange
information with federal immigration officials regarding the citizenship immigration status
persons already Defendant custody.
Plaintiff brings two claims remedy Defendant refusal carry out these clear, nondiscretionary legal duties. The first seeks mandamus relief; the second seeks declaratory relief.
Both claims rest the long-established right residents and citizens bring suit compel
public officials carry out their legal duties. Because Plaintiff has pled that resident and
citizen Cook County and that Defendant, Cook County public official, refuses carry out
his legal duties, Plaintiff standing bring this claim unassailable. Because Plaintiff has
amply pled claims for mandamus and declaratory relief, Plaintiff Complaint well-founded
and Defendant motion dismiss must denied.
II.
Factual Background.
Since the fall 2011, Defendant has refused honor notices detainer issued U.S.
Immigration and Customs Enforcement ICE for aliens already Defendant custody.
Complaint and 22-24. Defendant also refuses allow ICE officials review records
prisoners interview prisoners his custody order obtain information about prisoners
citizenship immigration status. Id. 20. Defendant purports acting pursuant
Cook County ordinance. Id. 16, and 20. Nonetheless, Cook County has applied for and
received millions dollars from the federal government for incarcerating certain categories
unlawfully present criminal aliens, including aliens subject immigration detainers, through
program known the State Criminal Alien Assistance Program. Id. and 26. Plaintiff
respectfully refers the Court paragraphs and 16-26 his Complaint, which
incorporates reference, for complete recitation the factual basis for his claims.
III.
Argument.
Plaintiff plainly has standing.
Plaintiff standing bring this action unassailable. resident and citizen Cook
County, Plaintiff has standing seek mandamus and declaratory relief remedy the refusal
Cook County public official carry out his legal duties. People rel. Newdelman Swank,
131 Ill. App. 73, (1st Dist. 1970); see also People rel. Gamber Board Supervisors the County Gallatin, 294 Ill. 579, 582 (1920); People rel. Faulkner Harris, 203 Ill.
272, 277 (1903); Hill Butler, 107 Ill. App. 721, 725 (4th Dist. 1982). the Court
People rel. Newdelman held, 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.
Id. Defendant Cook County public official who refuses comply with his legal duties.
Plaintiff can sue him insist that does so. Id.
Nowhere Greer Illinois Housing Development Authority, 122 Ill. 462 (1988) did
the Court purport overturn least eighty-five years precedent holding that the residents and
citizens Illinois have standing sue state and local public officials Illinois who refuse
carry out their legal duties. See, e.g., People rel. Faulkner, supra. The mere fact that
Newdelman and the other cases cited Plaintiff were decided before Greer does not mean that
Greer overturned all these earlier cases. The Court Greer did not explicitly even
implicitly overturn them. Greer simply addressed different theory standing. Greer, homeowners living near the site proposed housing project for very lowincome tenants challenged decision the Illinois Housing Development Authority IHDA provide funding for the project and the agency approval tenant-selection plan. Greer,
122 Ill. 470, 487. The issue before the 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. 491-92.
Plaintiff does not challenge the illegality administrative action agency.
challenges Defendant refusal comply with his clear, non-discretionary legal duties. Illinois
law recognizes various types standing. Martini Netsch, 272 Ill. App. 693, 695 (1st Dist.
1995) The decision standing may differ depending the issue involved and the nature
the relief sought. Whether the plaintiff has standing sue determined from the
allegations contained the complaint. (internal citations omitted)). The plaintiffs Greer had
standing under one legal theory. Plaintiff has standing under different legal theory.
Defendant reliance Greer compares apples oranges. Greer inapposite.
Plaintiff Complaint plainly alleges that Defendant refuses
comply with two clear legal duties.
Plaintiff alleges that Defendant refuses comply with two clear, specific, nondiscretionary legal duties: (1) the duty maintain custody alien, upon receipt notice detainer issued ICE, for period not more than hours beyond the time that the alien
would otherwise released; and (2) the duty refrain from prohibiting restricting
communications the exchange information with federal immigration officials about
person citizenship immigration status.1 Complaint 13-14, and 19-20. Defendant addition these specific duties, Defendant has the general duties under Illinois law comply
with federal law, support the constitutions the United States and the State Illinois, faithfully
Motion ignores the latter duty, which arises under U.S.C. 1373 and 1644. thus concedes
that this duty exists. Defendant only challenges the former legal duty.
Defendant has legal duty maintain custody
alien upon receipt notice detainer.
The duty maintain custody alien subject notice detainer set forth
expressly Title 26, Section 287.7 the Code Federal Regulations. Section 287.7 divided
into five subsections. Subsection (d) expressly addresses the temporary detention aliens. The
other subsections describe detainers generally and address matters such the authority issue
notices detainer and the transmission records regarding alien status conditions
release. C.F.R. 287.7(b)-(c). Subsection (d) states, its entirety:
Upon determination the [U.S. Department Homeland Security] issue
detainer for alien not otherwise detained criminal justice agency, such
agency shall maintain custody the alien for period not exceed hours,
excluding Saturdays, Sundays, and holidays order permit assumption
custody the Department. C.F.R. 287.7(d) (emphasis added).
Subsection (d) could not any clearer. The only verb the sentence shall
maintain. its face, detainer issued under subsection (d) direction from the U.S.
Department Homeland Security DHS particular, ICE criminal justice agency this case Defendant something. must maintain custody the alien subject the
detainer for not more than hours beyond the time that the alien would otherwise released.
The duty could not clearer, and does not authorize, much less require, the exercise any
discretion decision-making. All that criminal justice agency again, Defendant must
maintain custody the alien for not more than hours. makes difference what the
discharge the duties his office, and conserve the peace, prevent crime, and maintain the safety and
order the citizens and Cook County. Ill. Const., art. XIII, and Ill. Comp. Stat. 5/3-6004
and 5/3-6021.
detainer called. Whether called notice, detainer, communication, something else,
the duty clear: the receiving agency official shall maintain custody the alien for period
not exceed hours. Even Defendant seems agree that the duty obligatory. refers detainer, albeit perhaps inadvertently, being requirement: The hour detainer
requirement contained C.F.R. 287.7(d). Def Mot. (emphasis added).
This plain reading subsection (d) reinforced least three federal statutes, two
which, U.S.C. 1226 and 1357, are referenced expressly Section 287.7 authority for
issuance detainers. See C.F.R. 287.7(a). Congress has exercised its extensive authority
over immigration and the status and removal aliens mandating that aliens who have
committed specified criminal offenses types criminal offenses typically aggravated
felonies two more crimes involving moral turpitude shall taken into federal custody
for immigration purposes when the alien released from the custody state local law
enforcement officials. U.S.C. 1226(c). Mandatory federal custody occurs without regard
whether the alien released parole, supervised release, probation, and without regard
whether the alien may arrested imprisoned again for the same offense. U.S.C.
1226(c). Federal law also mandates that aliens suspected terrorist activity other activity
that endangers national security shall taken into federal custody, shall aliens who have
committed particular criminal offenses relating controlled substances. U.S.C. 1226a and
1357(d). These statutes embod[y] the judgment Congress that such individual should not returned the community pending disposition his removal proceedings. Saysana
Gillen, 509 F.3d 713 (1st Cir. 2009). The duty state and local law enforcement agencies
honor 48-hour immigration detainers plainly furthers Congress judgment that certain categories aliens should not returned the community.
The only court that has ever actually ruled the issue held that Section 287.7(d)
imposes mandatory duty. Galarza Szalzxyk, 2012 U.S. Dist. LEXIS 47023 (E.D. Pa. Mar.
30, 2012). issue Galaraza was claim individual held pursuant immigration
detainer. Specifically, the plaintiff Galaraza alleged that his Fourth Amendment rights were
violated when the Sheriff Lehigh County continued detain him the county jail after the
plaintiff had posted bail. finding Fourth Amendment violation, the Court held: any event, Lehigh County did not maintain custody plaintiff for more than
the hours was required so. Pursuant [DHS] Regulation 287.7(d),
quoted above, because ICE issued detainer for plaintiff, the Lehigh County
Prison criminal justice agency was required maintain custody him
after was not otherwise detained criminal justice agency for period not exceed hours order permit assumption his custody [DHS].
Galarza, 2012 U.S. Dist. LEXIS *56. Because the county sheriff was acting pursuant
obligation imposed federal regulations, the Court held that the county was not liable for the
plaintiff alleged deprivation his Fourth Amendment rights.
Defendant tries obfuscate the mandatory nature the duty set forth subsection (d) citing language subsection (a) and DHS form that uses the word request describe immigration detainer.2 Defendant claims that using request synonym for
immigration detainer somehow changed the obligatory nature the words shall maintain
custody Section 287.7(d) and makes compliance with immigration detainers purely
voluntary. The word request does not appear anywhere the text subsection (d). Nor
the words may, voluntary, optional. addition, while subsection (d) clear
directing that criminal justice agencies shall maintain custody aliens subject immigration
Defendant also cites Operating Procedures uncertain date for DHS program known
Secure Communities which DHS requests cooperation from local law enforcement agencies and
declares that such cooperation vital. Plaintiff agrees that such cooperation vital. Plaintiff disputes
that either government form agency operating procedures have the force law can transform duty imposed law into purely voluntary request for cooperation.
detainers, its face subsection (a) refers such agencies advising federal immigration officials
prior release the alien, order for the Department arrange assume custody,
situations when gaining immediate physical custody either impracticable impossible.
C.F.R. 287.7(a). evident from the plain language subsection (a), the provision does
not address the federal government order for temporary detention certain aliens state
local law enforcement agencies. addresses when and why state and local law enforcement
agencies should inform federal immigration officials about aliens their custody. The two
provisions, although related, are distinct purpose and substance. Defendant attempt
equate them misplaced.
Nor does the decision Buquer City Indianapolis, 2011 U.S. Dist. LEXIS 68326
(S.D. Ind. June 24, 2011) save Defendant. issue Buquer were two provisions new
Indiana law that purported authorize state and local law enforcement officers make
warrantless arrests certain aliens and created new infraction for persons who knowingly
intentionally offer accept consular identification cards valid forms identification. The
plaintiffs Buquer sought preliminary injunction prevent the new provisions from going
into effect pending final determination their constitutionality. The case did not call upon the
Court decide matter fact matter law whether compliance with
immigration detainers mandatory purely voluntary. Rather, the language cited
Defendant merely attempted summarize terms used federal immigration regulations that had
been incorporated into the challenged state law. Buquer, 2011 U.S. Dist. LEXIS 68326 understanding the materials phrases this statute necessary; that discussion
ensues[.] point did the Court Buquer actually adjudicate whether, upon receipt
immigration detainer, state and local law enforcement agencies are obligated detain aliens for hours beyond the time when the aliens would otherwise released from criminal
custody. addition being incorrect ignored the crucial shall maintain custody language the regulation the Court summary immigration terms was nothing more than that. sum, the plain language C.F.R 287.7(d) mandates that state and local law
enforcement agencies honor immigration detainers. None the language the regulation,
forms guidance manuals cited Defendant changes the mandatory nature the direction criminal justice agencies that, upon receipt immigration detainer, these agencies shall
maintain custody alien subject detainer for not more than hours beyond the time
when the alien would otherwise released. There nothing voluntary about the words shall
maintain custody used the regulation.
Printz United States does not apply.
Defendant other argument which seeks avoid the legal duty imposed him C.F.R. 287.7(d) claim that the duty unconstitutional. Defendant does not dispute that
the federal government has broad, undoubted power over the subject immigration and the
status aliens. Arizona United States, U.S. __, 132 Ct. 2492, 2498 (2012). Nor does dispute that Congress has plenary power enact statutes concerning the subject
immigration and the status aliens. Nor does seriously contend that federal agencies cannot
promulgate regulations concerning immigration and the status aliens, that any such
regulations not have preemptive effect. They do. See, e.g., Hillsborogh County Automated
Medical Laboratories, 471 U.S. 707, 713 (1985). Rather, Defendant asserts that that federal
government may not compel him administer enforce federal regulatory program. The
error Defendant argument that not being compelled administer enforce federal
regulatory program. not being compelled enforce administer immigration law. The
duty imposed him C.F.R. 287.7(d) duty nothing more than what already
does Sheriff, which run the Cook County jail system. Complaint Enforcing
immigration law and remains the province the federal government. this regard, Defendant reliance Printz United States, 521 U.S. 898 (1997)
misplaced. issue Printz was the validity the Brady Act, federal law that, among other
things, required local law enforcement agencies receive and review certain firearm transfer
forms from firearm dealers, perform background checks, and determine whether proposed
firearm transfer was legal illegal. The Brady Act also required local law enforcement
agencies prepare written statements support any finding firearm ineligibility. None
these tasks were tasks that local law enforcement agencies had been already performing. They
were new tasks created new federal statute, but imposed local law enforcement agencies.
First, unlike Printz, the federal government, not Defendant, that administering
and enforcing immigration laws. Defendant not being compelled receive and review
immigration records documentation about alien, identify alien immigration status,
determine whether alien has violated any immigration laws, decide whether alien
subject removal from the United States. Nor being required undertake any other task
that constitutes administering and enforcing immigration laws. Defendant only being required maintain custody persons already his custody for hours beyond when such
persons would otherwise released.3
Second, Defendant already has custody these persons. Immigration detainers only
require Defendant continue maintain custody them for not more than hours instead course, possible that federal immigration officials will available take custody
alien subject immigration detainer less than hours. reality, Defendant may only required hold the individual for very brief, additional period time.
releasing them into the community. this instance, the federal government not requiring
Defendant locate the alien, arrest the alien, investigate and prosecute the alien, even take
custody the alien. merely ordering Defendant continue what already doing for atmost two more days that federal immigration officials have the opportunity take custody
the alien, after which the federal immigration authorities, not Defendant, will determine whether enforce not enforce the immigration laws against the alien.
Third, Printz did not arise the context field which federal authority
preeminent. Gun control subject matter over which the states and the federal government
share concurrent powers. The federal government, however, has broad, undoubted power over
the subject immigration and the status aliens. Arizona, 132 Ct. 2498. Federal
governance immigration and alien status extensive and complex. Id. 2499. Federal
authority over immigration has long been described preeminent. Toll Moreno, 458 U.S. (1982); Plyler Doe, 427 U.S. 202, 235-36 (1982) (Blackmun, J., concurring). This
authority rests, part, the [federal] government constitutional power establish
uniform Rule Naturalization, U.S. Const., Art. cl. and its inherent power
sovereign control and conduct relations with foreign nations. Arizona, 132 Ct. 2498.
The fact that U.S.C. 287.7(d) arises the context immigration law, field which
federal authority preeminent, makes Printz readily distinguishable.
Fourth, and also unlike with the Brady Act, Defendant not being forced absorb the
financial burden implementing federal regulatory program. Printz, 521 U.S. 929.
Plaintiff alleges his Complaint, the federal government provides funding state and local
governments that incarcerate certain categories undocumented criminal aliens, including
undocumented criminal aliens who are being held pursuant immigration detainer.
Complaint 11. Because the Court must accept all well pleaded facts and all reasonable
inferences able drawn from those facts, the Court assume that Defendant would not financially burdened were maintain custody the aliens for not more than hours.
See Iverson Scholl, Inc., 136 Ill. App. 962, 965 (1st Dist. 1985).
Defendant constitutional argument has been tried previously and was soundly rejected. City New York United States, 179 F.3d (2d Cir. 1999), the Court rejected
constitutional challenge two federal statutes U.S.C. 1373 and 1644 asserted New
York City. Eleven days after Sections 1373 and 1644 were enacted Congress, New York City
filed suit for declaratory and injunctive relief claiming that the two federal statutes violated the
Tenth Amendment. Id. 33. Specifically, New York City argued that the scope state
sovereignty under the Amendment includes the power choose not participate federal
regulatory programs and that such power turn includes the authority forbid state local
agencies, officials, and employees from aiding such program even voluntary basis. Id.
34. rejecting New York City argument and holding that Sections 1373 and 1644 did not
violate the sovereignty principles set forth Printz, the Court declared: the case [Sections 1373 and 1644], Congress has not compelled state and
local governments enact administer any federal regulatory program. Nor has affirmatively conscripted states, localities, their employees into the federal
government service. These Sections not directly compel states localities require prohibit anything. Rather, they prohibit state and local governmental
entities officials only from directly restricting the voluntary exchange
immigration information with the INS.
Id. (citing Printz, 521 U.S. 917). Defendant constitutional challenge Section
287.7(d) fares better. Section 287.7(d) does not compel Defendant enact administer any
federal regulatory program. Nor does affirmatively conscript Defendant into the federal
government service. only requires Defendant what already does, which hold
prisoners already his custody, albeit for brief period time after would otherwise release
them, order allow federal immigration authorities assume custody.
Defendant has legal duty refrain from restricting
communications the exchange information.
Although Defendant does not challenge that has legal duties under U.S.C. 1373
and 1644, those duties clearly exist. Federal law indisputably imposes legal duty Defendant refrain from prohibiting any way restricting communications the exchanging
information with federal immigration officials about person citizenship immigration status. U.S.C. 1373 and 1644. Specifically, Section 1373(a) states:
Notwithstanding any other provision Federal, State, local law, Federal,
State, local government entity official may not prohibit, any way
restrict, any government entity official from sending to, receiving from,
[federal immigration officials] information regarding the citizenship
immigration status, lawful unlawful, any individual.
With respect Section 1373(a) application this case, Defendant, Cook County official,
may not prohibit any way restrict the Cook County Sheriff Office CCSO
government entity, any official the CCSO, from sending to, receiving from, federal
immigration officials any information about citizenship immigration status, lawful
unlawful, any person his custody.
Similarly, Section 1644 states:
Notwithstanding any other provision Federal, State, local law, State
local government entity may prohibited, any way restricted, from sending receiving from [federal immigration officials] information regarding the
immigration status, lawful unlawful, alien the United States.
Thus, under U.S.C. 1644 well, Defendant may not prohibit any way restrict the
CCSO, which, again, local government entity, from sending to, receiving from, federal
immigration officials information regarding the immigration status, lawful unlawful, any
alien his custody. addition, Section 1373(b) states:
Notwithstanding any other provision Federal, State, local law, person
agency may prohibit, any way restrict, Federal, State, local government
entity from doing any the following with respect information regarding the
immigration status, lawful unlawful, any individual:
(1)
(2)
(3)
Sending such information to, requesting receiving such
information from, [federal immigration officials].
Maintaining such information.
Exchanging such information with any other Federal, State,
local government entity.
Under this provision, Defendant also may not prohibit, any way restrict, the CCSO, which,
again, local government entity, from sending, requesting, receiving information from
federal immigration officials about the immigration status, lawful unlawful, any alien
Defendant custody. Nor may prohibit any way restrict the CCSO from exchanging
such information with federal immigration officials.
Plaintiff Complaint plainly alleges that Defendant refuses comply with these duties prohibiting federal immigration officials from having access prisoners the records
prisoners Defendant custody. Complaint 20. Plaintiff Complaint also plainly alleges
that Defendant prohibits CCSO personnel and employees from responding inquiries federal
immigration officials about prisoners citizenship immigration status and from communicating
with federal immigration officials about the incarceration status release dates prisoners
his custody. Complaint 20.
Each these statutes imposes clear and mandatory legal duties Defendant.
prohibiting CCSO personnel employees from responding inquiries federal immigration
officials about prisoners citizenship immigration status, Defendant defying his duties under
Sections 1373(a), (b)(1), and (b)(3) and Section 1644. prohibiting federal immigration
officials from having access prisoners the records prisoners Defendant custody
using CCSO facilities for investigative interviews obtain information about prisoners
citizenship immigration status, Defendant also defying his duties under Section 1373(b)(3).
Defendant cannot complain, does with respect his duty maintain custody
aliens subject 48-hour immigration detainers under Section 287.7, that Congress cannot
impose such duties him. Again, the Court City New York expressly rejected such
challenge. Plaintiff claim for mandamus and declaratory relief arising from Defendant
refusal carry out his legal duties under Sections 1373 and 1644 well-pled.
IV.
Conclusion.
For the foregoing reasons, Plaintiff respectfully requests that Defendant motion
dismiss denied.
Dated: July 2013
Respectfully submitted,
Christine Svenson
Ill. Bar No. 6230370
Cook County Attorney No. 44565
SVENSON LAW OFFICES
505 LaSalle Street, Suite 350
Chicago, 60654
Tel: (312) 467-2900
Fax: (312) 467-2902
Paul Orfanedes
Ill. Bar No. 6205255
Cook County Attorney No. 43158
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Counsel for Plaintiff