Case:
1:1l-cv-01722
Document
#:
58 Filed:
06/20/12
Page 1 of 3 PagelD#:200
IN
THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISEASTERN DIVISION
LOUISFROBE,
)
))
))
))
))
)Plaintiff,
Case
No.:
ll-CV
1
722
vs.Hon.
Rebecca
R.
Pallmeyer
VILLAGE OF LINDENHURST, et
al.,Defendants.
DEFENDANT LISA MADIGAN'S SUPPLEMENTAL MEMORANDUM
IN
SUPPORT OF HER MOTION TO DISMISS
Withleave
of
the
Court
(Dkt. No. 55),
defendant Lisa
Madigan, the AttorneyGeneral
of
Illinois,submitsthissupplemental
memorandum
in
support
of
her motiontodismiss
plaintif
f's
claim
against her.
l.
Plaintiff
Louis
Frobe
filed this lawsuitchallengingtheconstitutionality
of
Illinois'
Eavesdropping Act
("Act").Inaddition tothe Village
of
Lindenhurst, three
Lindenhurst police
officers, andthe
Lake County
State's
Attorney,
plaintiff named
Attorney General
Madigan
asa defendant.2.
Plaintiff'sclaim
againstAttorneyGeneral
Madigan
should bedismissedbecause
plaintiff
has
not
allegeda credible threatthat
she
will
enforce
the Actagainsthim. (Dkt.No.
29
at 4-6;
see also
Dkt. No.
42
at 1-6).This
supplement
confirmsthatthere is no threat
of
enforcement
bythe AttorneyGeneral:
•AttorneyGeneral Madigan has not prosecuted violations
of
the Act.
To
the
best
of
our
knowledg
e,AttorneyGeneral
Madigan
has notprosecuted anybodyfor violatingtheAct. At oral
argument
,
plaintiffs
co
unselclaimedthatAttorney General
Madigan
prosecuted Annabel
Melongo
under theAct,
but
plaintiff
's
counselwas mistaken, as explainedinastatement
we
filed earlier.(Dkt.No. 48)
Case: 1:11-cv-01722 Document
#:
58 Filed:
06/20/12
Page 2 of 3 PagelD #:201
• Attorney General Madigan lacks the authority
to
initiate aprosecution under the Act.
The IllinoisAttorneyGeneral"cannotdirect
the prosecution activities
of
the 102 States' Attorneys," and"lacksthepower
to
take exclusive charge
of
the prosecution
of
those cases overwhich the State's Attorney shares authority."
520
S.
Mich. Ave. Assoc.,Ltd.
v.
Devine,
433 F.3d 961, 964
(7
th
Cir. 2006);
People
v.
BuffaloConfectionary Co.,
401 N.E.2d 546, 549 (Ill. 1980). Because the Act doesnot give enforcement authority
to
the Attorney General, at most she can"assist" the States' Attorneys in prosecutions under the Act.
Id.
at 549;
see also
15
ILCS 205/4. Here, the Lake County State's Attorney hasrepresented that he will not prosecute plaintiff under the Act.
• Attorney General Madigan represents that she
will
not prosecuteplaintiff under the Act.
Attorney General Madigan will not prosecuteplaintiff under the Act; nor will she assist in any prosecution
of
plaintiffunder the Act. Attorney General Madigan made this representation at theDecember 19, 2011 oral argument, and repeats it here.Thisposition hasbeen reinforced by the Seventh Circuit's recent decision in
ACLU
v.
Alvarez.
Like plaintiff here, the ACLU has challenged the Act insofar
as
it applies
to
recording police officers performing their official duties inpublic. The Seventh Circuit concluded that the ACLU has a "stronglikelihood
of
success on the merits" and instructed the district court
to
entera preliminary injunction preventing the State's Attorneyfromapplying the Act against the ACLU.
ACLU
v.Alvarez,
679F.3d583, 608
(7
th
Cir.2012).
• Attorney General Madigan withdrew her appeal
in
People
v.
Allison.
The Circuit Courts for Crawford County andCookCounty, Illinois haveheld that the Act
is
unconstitutional
as
applied
to
the recording
of
policeofficers.The Attorney General intervened in the Crawford County case,
People
v.
Allison,
but has withdrawn her appeal.
3.
Accordingly, this Court should grant Attorney General Madigan's motion
to
dismiss on Eleventh Amendment grounds because there
is
no credible threat that shewill enforce the Act against plainti
ff.
Attorney General Madigan reserves the right to fileaseparatemotion to dismiss based on the mootness doctrine.
1
I
See. e.g.,Poe
v.
Ullman,
367 U.S.
497,507
-
08
(1961);
Wisc.
Righllo
Life, Inc.
v.
Schober, 366
F.3d 485, 490-92
(7ili
Cir. 2004);
Ragsdale
v.
Turnock,
841
F.2d 1358, 1365-66
(7ili
Cir. 1988);
see also
ACLU
v.
Alvarez,
679 F.3d
at
593; 520
S.
Mich.
Ave.,
433 F.3d
at
963-64.
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Illinois Attorney General Reaction One Day After Melongo's case was dismissed
This Illinois Attorney General filed this memorandum one day after Melongo's eavesdropping case was dismissed.
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