Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
2Activity
0 of .
Results for:
No results containing your search query
P. 1
Corrected Opposition to Motion to Dismiss

Corrected Opposition to Motion to Dismiss

Ratings: (0)|Views: 237|Likes:
Corrected Opposition to Motion to Dismiss
Corrected Opposition to Motion to Dismiss

More info:

Published by: Judicial Watch, Inc. on Jul 10, 2013
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
This book can be read on up to 6 mobile devices.
download as PDF, TXT or read online from Scribd
See more
See less

07/11/2013

pdf

text

original

 
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCOUNTY DEPARTMENT, CHANCERY DIVISION
BRIAN McCANN, ))Plaintiff, ) Case Number: 13 CH 10583) Hon. Mary Anne Masonvs. ))THOMAS J. DART, in his official )capacity as Cook County Sheriff, ))Defendant. ))
PLAINTIFF’S
CORRECTED MEMORANDUM IN OPPOSITIONTO
DEFENDANT’S 2
-
619.1 MOTION TO DISMISS PLAINTIFF’S
COMPLAINT IN CHANCERY FOR MANDAMUS AND DECLARATORY RELIEF
Plaintiff Brian McCann
(“Plaintiff”)
, by counsel, respectfully submits this memorandum
in opposition to Defendant’s motion to dismiss. As grounds therefor, Plaintiff states as follows:
 
MEMORANDUMI. Introduction.
Plaintiff, a lifelong resident and citizen of Cook County, brings this action to remedy therefusal of Cook County Sheriff Thomas J. Dart
(“Defendant”)
to carry out his legal duties.Specifically, Plaintiff alleges that Defendant refuses to carry out two, specific legal dutiesimposed on him by federal and state law. First, Plaintiff 
’s Complaint
asserts that, when servedwith a notice of detainer by federal immigration officials, Defendant has a legal duty to maintaincustody of an alien already
in Defendant’s custody for 
not more than 48 hours beyond the timethat the alien would otherwise be released. Second, Plaintiff 
’s Complaint
asserts that Defendanthas a legal duty to refrain from prohibiting or restricting communications or the exchange of information with federal immigration officials regarding the citizenship or immigration status of  persons already
in Defendant’s custody.
 
 
2Plaintiff brings two claims to remedy
Defendant’s
refusal to carry out these clear, non-discretionary legal duties. The first seeks mandamus relief; the second seeks declaratory relief.Both claims rest on the long-established right of residents and citizens to bring suit to compel public officials to carry out their legal duties. Because Plaintiff has pled that he is a resident andcitizen of Cook County and that Defendant, a Cook County public official, refuses to carry outhis legal duties, Plaintiff 
’s standing
to bring this claim is unassailable. Because Plaintiff hasamply pled claims for mandamus and declaratory relief,
Plaintiff’s Complaint is well
-foundedand
Defendant’s motion to dismiss must be denied.
 
II. Factual Background.
Since the fall of 2011, Defendant has refused to honor notices of detainer issued by U.S.Immigration and Customs Enfo
rcement (“ICE”) for aliens
already
in Defendant’s custody.
Complaint at ¶¶ 19 and 22-24. Defendant also refuses to allow ICE officials to review records of  prisoners or interview prisoners in his custody in order to obtain information about
 prisoners’
citizenship or immigration status.
 Id.
at ¶ 20. Defendant purports to be acting pursuant to aCook County ordinance
.
 
 Id.
at ¶¶ 16, 19 and 20. Nonetheless, Cook County has applied for andreceived millions of dollars from the federal government for incarcerating certain categories of unlawfully present criminal aliens, including aliens subject to immigration detainers, through a program known as the State Criminal Alien Assistance Program.
 Id.
at ¶¶ 11 and 26. Plaintiff respectfully refers the Court to paragraphs 1, 2, and 16-26 of his Complaint, which heincorporates by reference, for a complete recitation of the factual basis for his claims.
 
3
III. Argument.A. Plaintiff plainly has standing.
Plaintiff 
’s standing to bring this action is unassailable.
As a resident and citizen of Cook County, Plaintiff has standing to seek mandamus and declaratory relief to remedy the refusal of aCook County public official to carry out his legal duties.
 People ex rel. Newdelman v. Swank 
,131 Ill. App. 2d 73, 75 (1st Dist. 1970);
 see also
 
 People ex rel. Gamber v. Board of Supervisorsof the County of Gallatin
, 294 Ill. 579, 582 (1920);
 People ex rel. Faulkner v. Harris
, 203 Ill.272, 277 (1903);
 Hill v. Butler 
, 107 Ill. App. 3d 721, 725 (4th Dist. 1982). As the Court in
 People ex rel. Newdelman
held,
“Even though citizens may not have any legal rights directly
affected by the failure of public officials to carry out their legal duties, nevertheless such personsas members of the public ha
ve the right to insist that public officials carry out their legal duties.”
 Id 
. Defendant is a Cook County public official who refuses to comply with his legal duties.Plaintiff can sue him to insist that he does so.
 Id.
  Nowhere in
Greer v. Illinois Housing Development Authority
, 122 Ill. 2d 462 (1988) didthe Court purport to overturn at least eighty-five years of precedent holding that the residents andcitizens of Illinois have standing to sue state and local public officials in Illinois who refuse tocarry out their legal duties.
See
,
e.g.
,
 People ex rel. Faulkner 
,
 supra.
The mere fact that
 Newdelman
and the other cases cited by Plaintiff were decided before
Greer 
does not mean that
Greer 
overturned all of these earlier cases. The Court in
Greer 
did not explicitly or evenimplicitly overturn them.
Greer 
simply addressed a different theory of standing.In
Greer 
, homeowners living near the site of a proposed
housing project for “very low
-
income” tenants challenged a decision by the
Illinois Housing Development Authority
(“IHDA”)to provide funding for the project and the agency’s approval of a tenant
-selection plan.
Greer 
,

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->