McCann v. Dart

30 N.E.3d 468

Brian McCANN, Plaintiff–Appellant

v.Thomas J. DART, in His Official Capacity as Cook County Sheriff, Defendant–Appellee.

No. 1–14–1291.

Appellate Court of Illinois, First District, Fifth Division.

March 27, 2015.

Rehearing Denied April 27, 2015.

Christine Svenson, of Svenson Law Offices, and Paul J. Orfanedes, of Judicial Watch, Inc., of Washington, D.C., for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Daniel F. Gallagher, Kent S. Ray, and James Beligratis, Assistant State's Attorneys, of counsel), for appellee.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Brian McCann appeals from the circuit court's grant of defendant Thomas Dart's motion to dismiss plaintiff's petition for mandamus and declaratory relief pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(9) (West 2012)). On appeal, plaintiff contends that: (1) the circuit court erred in dismissing his complaint for lack of standing; and (2) defendant has failed to fulfill a legal duty pursuant to several federal immigration statutes. Because we find that plaintiff's opening brief is deficient and fails to comply with Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013), we exercise our discretion to strike plaintiff's brief and dismiss his appeal.

¶ 2 To fully understand the present appeal, we will first discuss the federal statutes and Cook County ordinance on which plaintiff based his petition for mandamus and declaratory relief. The pertinent federal statutes include: 8 U.S.C. §§ 1226, 1226a, and 1357, and the associated regulation 8 C.F.R. § 287.7, which pertain to requests by federal immigration officials from the Immigration and Customs Enforcement Agency (ICE) to local law enforcement officers to detain suspected aliens in their custody; and 8 U.S.C. §§ 1373, and 1644, which pertain to communication and the exchange of information between federal immigration officials and local law enforcement agencies about a person's immigration status. 8 U.S.C. §§ 1226, 1226a, 1357, 1373, 1644 (2012) ; 8 C.F.R. § 287.7 (2012).

¶ 3 Specifically, 8 U.S.C. §§ 1226 and 1226a detail general guidelines for the arrest, detention, and release of certain aliens. 8 U.S.C. § 1357(d) provides that ICE may issue a detainer upon the request of any law enforcement official if an individual has been arrested for violating controlled substances laws and if the arresting agency has reason to believe that the individual is not lawfully present in the United States. An associated regulation, 8 C.F.R. § 287.7(a), states that the “detainer is a request that such agency advise the Department [of Homeland Security], prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” (Emphasis added.) 8 C.F.R. § 287.7(a) (2012). Section (d) of the same regulation further provides:

“Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.” 8 C.F.R. § 287.7(d) (2012).

¶ 4 In regard to the communications between local law enforcement agencies and the Immigration and Naturalization Service (INS), 8 U.S.C. § 1373(a) states:

“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [INS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a) (2012).

8 U.S.C. § 1373(b) further provides that “no person or agency may prohibit, or in any way restrict” a federal, State, or local government entity from sending to INS, maintaining, or exchanging information regarding the immigration status of any individual. 8 U.S.C. § 1373(b) (2012). Similarly, 8 U.S.C. § 1644 provides that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from” the INS any information about the immigration status of an alien in the United States. 8 U.S.C. § 1644 (2012).

¶ 5 In September 2011, the Cook County Board of Commissioners enacted an ordinance in response to these federal statutes, especially with respect to the ICE detainer provisions. Cook County Ordinance No. 11–O–73 (approved Sept. 7, 2011) (hereinafter, the Ordinance). In it, the commissioners expressed concern that “due to troubling inconsistencies in ICE policies, many local law enforcement agencies erroneously believe ICE detainers are mandatory and that local law enforcement agencies are legally required to comply,” that the detainers are “routinely imposed on individuals without any criminal convictions or whose cases are dismissed,” and that “it costs Cook County approximately $43,000 per day to hold individuals ‘believed to be undocumented’ pursuant to ICE detainers, and Cook County can no longer afford to expend taxpayer funds to incarcerate individuals who are otherwise entitled to their freedom.” Id. Ultimately, section 46–37 of the Ordinance, titled “Policy for responding to ICE detainers” provides, in pertinent part:

“(a) The Sheriff of Cook County shall decline ICE detainer requests unless there is a written agreement with the federal government by which all costs incurred by Cook County in complying with the ICE detainer shall be reimbursed.

(b) Unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, ICE agents shall not be given access to individuals or allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release dates while on duty.

(c) There being no legal authority upon which the federal government may compel an expenditure of County resources to comply with an ICE detainer issued pursuant to 8 USC § 1226 or 8 USC § 1357(d), there shall be no expenditure of any County resources or effort by on-duty County personnel for this purpose, except as expressly provided within this Ordinance.” Cook County Ordinance No. 11–O–73, § 46–37 (approved Sept. 7, 2011).

¶ 6 In April 2013, plaintiff filed a petition for mandamus and declaratory relief against defendant in his official capacity as Cook County sheriff. In his petition, plaintiff alleged that he was a “ lifelong resident and citizen” of Chicago, Illinois, located in Cook County, and that, “as a resident and citizen of Cook County, Plaintiff has standing to seek mandamus and declaratory relief to remedy the failure and/or refusal of Cook County public officials to carry out their legal duties.”

¶ 7 Under count I for mandamus relief, plaintiff further alleged that: (1) defendant has a legal duty to detain certain aliens in his custody for a period not exceed 48 hours pursuant to 8 U.S.C. §§ 1226, 1226a, and 1357(d) and 8 C.F.R. § 287.7 ; (2) by refusing to honor ICE detainers, defendant has failed and is failing to carry out his duty; (3) defendant has a legal duty to refrain from prohibiting or in any way restricting communications with federal immigration officials regarding the citizenship or immigration status of persons in defendant's custody; (4) by prohibiting federal immigration officials from having access to prisoners, having access to prisoner records, or using the Cook County sheriff's office (CCSO) facilities for investigative interviews he has failed and is failing to carry out his legal duties pursuant to 8 U.S.C. §§ 1373 and 1644 ; and (5) defendant's failure to carry out his legal duties is not excused by the Ordinance because the Ordinance is preempted by federal law. Under count II, for declaratory relief, plaintiff claimed that “an actual controversy exists between Plaintiff and Defendant” because defendant was failing to carry out his duties under federal and state law and concluded that an “issuance of judgment declaring the rights of the parties will terminate the controversy.” Ultimately, plaintiff requested the court to issue a writ of mandamus to compel defendant to carry out “the legal duties described” in the complaint, declare that defendant's failure or refusal to carry out his duties was unlawful, and declare that the Ordinance is preempted by federal law and an ultra vires enactment by the Cook County board of commissioners.

¶ 8 In May 2013, defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2–619.1 of the Code (735 ILCS 5/2–619.1 (West 2012) ). Defendant argued that plaintiff's complaint should be dismissed because: (1) plaintiff failed to state a cause of action upon which relief could be granted pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2012) ) because defendant cannot be legally compelled to administer or enforce the federal regulatory immigration program; and (2) plaintiff lacked standing to bring the complaint pursuant to section 2–619(a)(9) of the Code (735 ILCS 5/2–619(a)(9) (West 2012)) because he suffered no injury in fact to a legally cognizable interest.

¶ 9 In November 2013, the circuit court heard oral argument on defendant's motion and, after the hearing, took the matter under advisement.

¶ 10 In March 2014, the court issued a written order granting defendant's motion pursuant to section 2–619(a)(9) on the grounds that plaintiff lacked standing. The court explained that it had reviewed all the cases cited by the parties and found that Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 120 Ill.Dec. 531, 524 N.E.2d 561 (1988), controlled the issue of standing...