McCann v. Dart

                        Illinois Official Reports

                                Appellate Court



                    McCann v. Dart, 

Appellate Court    BRIAN McCANN, Plaintiff-Appellant, v. THOMAS J. DART, in His
Caption            Official Capacity as Cook County Sheriff, Defendant-Appellee.



District & No.     First District, Fifth Division
                   Docket No. 1-14-1291


Filed              March 27, 2015
Rehearing denied   April 27, 2015


Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CH-10583; the
Review             Hon. Jean Prendergast Rooney, Judge, presiding.



Judgment           Appeal dismissed.



Counsel on         Christine Svenson, of Svenson Law Offices, and Paul J. Orfanedes, of
Appeal             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.



Panel              JUSTICE McBRIDE delivered the judgment of the court, with
                   opinion.
                   Justices Gordon and Reyes concurred in the judgment and opinion.
                                               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: 

, 1226a, and 1357, and the associated
     regulation 

, 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 

, 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. 

, 1226a,
     1357, 1373, 1644 (2012); 

 (2012).
¶3       Specifically, 

 and 1226a detail general guidelines for the arrest, detention,
     and release of certain aliens. 

(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, 

(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.) 

(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.” 

(d) (2012).
¶4       In regard to the communications between local law enforcement agencies and the
     Immigration and Naturalization Service (INS), 

(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.”
              

(a) (2012).
     

(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. 

(b) (2012). Similarly, 

 provides that “no State or local government


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     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. 

     (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.” 

     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
              

 or 

(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 

, 1226a, and 1357(d) and 

; (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 

                                                  -3-
       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, 

 (1988), controlled the issue of standing and required
       the dismissal of plaintiff’s complaint. The court further found that the cases cited by plaintiff
       were distinguishable from the case before it and “were all decided before Greer, and thus are
       impliedly overruled.” Plaintiff now appeals the decision of the circuit court.
¶ 11       In his opening brief on appeal, which consists of a scant eight pages, plaintiff argues:
                    “Since at least as early as 1903, a long line of cases has recognized the right of
                citizens to seek mandamus and declaratory relief to remedy the refusal of public
                officials to carry out their legal duties. *** The sole issue before this Court is whether
                the 1988 case ‘impliedly overruled’ this long-standing right.”
       However, the question before us is not whether there is a general rule regarding standing in
       mandamus actions; rather, the issue is whether plaintiff had standing to seek mandamus and
       declaratory relief in the present case.
¶ 12       Upon review, we find that plaintiff’s opening brief fails to conform with Illinois Supreme
       Court Rule 341(h). Rule 341 governs the form and content of appellate briefs. Voris v. Voris,
       

, ¶ 8. Compliance with these procedural rules is mandatory. 

       Furthermore, this court may, in its discretion, strike a brief and dismiss an appeal based on the
       failure to comply with the applicable rules of appellate procedure. Holzrichter v. Yorath, 

, ¶ 77.
¶ 13       Plaintiff’s opening brief violates several Rule 341(h) requirements. First, Rule 341(h)(5)
       provides that “[i]n a case involving the construction or validity of a statute, *** ordinance, or
       regulation,” the appellant’s brief “shall” include “the pertinent parts of the provision verbatim,


                                                    -4-
       with a citation of the place where it may be found, all under an appropriate heading, such as
       ‘Statutes Involved.’ ” Ill. S. Ct. R. 341(h)(5). Here, plaintiff’s entire complaint for mandamus
       and declaratory relief is based on the federal immigration statutes and the Ordinance detailed
       above; his claim for relief centers on whether the federal immigration statutes are mandates or
       requests that defendant accept ICE detainers and leave open the channels of communication
       between the CCSO and INS. Nonetheless, plaintiff never references or provides a citation to
       the statutes or Ordinance, and never presents the pertinent parts of the statutes or Ordinance
       verbatim. In fact, his opening brief does not contain any indication of what statutes or
       ordinances he may have invoked in the circuit court.
¶ 14        Plaintiff’s brief also fails to comply with Rule 341(h)(6), which requires that the appellant
       include a “Statement of Facts, which shall contain the facts necessary to an understanding of
       the case, stated accurately and fairly without argument or comment, and with appropriate
       reference to the pages of the record on appeal.” Ill. S. Ct. R. 341(h)(6). The “Statement of
       Facts” section of plaintiff’s brief states: “Because the Circuit Court dismissed all claims for
       lack of standing, the only relevant facts, which were not challenged in the Circuit Court, are
       that Plaintiff is a citizen of Cook County and that Defendant is a public official.” Once again,
       plaintiff did not reference the pertinent federal immigration statutes under which he is claiming
       to be entitled to relief, he did not reference the Ordinance, and he did not provide any of the
       case’s procedural background.
¶ 15        In addition, Rule 341(h)(7) requires the appellant to present reasoned argument and
       citation to legal authority and to specific portions of the record in support of his claim of error.
       Ill. S. Ct. R. 341(h)(7). This rule is especially important because, when reviewing a case, the
       appellate court starts with the presumption that the circuit court’s ruling was in conformity
       with the law and the facts. See Behrstock v. Ace Hose & Rubber Co., 

, 86
       (1986) (observing that “it is well settled that all reasonable presumptions are in favor of the
       action of the trial court”); In re Alexander R., 

, 556 (2007) (noting the
       general and well-established principle of appellate review that the circuit court knows and
       follows the law). The appellant bears the burden of overcoming that presumption. Behrstock,
       147 Ill. App. 3d at 86. Moreover, it is well established that appellate courts “ ‘are entitled to
       have the issues clearly defined, [and] to be cited pertinent authorities.’ ” Northwestern
       Memorial Hospital v. Sharif, 

, ¶ 20 (quoting In re Estate of Kunz, 

, 763 (1972)).
¶ 16        In his opening brief, plaintiff argues generally that a citizen has the right seek mandamus
       and declaratory relief to remedy the refusal of a public official to carry out his legal duties and
       that, to demonstrate standing in such a mandamus action, a citizen need only allege that he is a
       citizen and that defendant failed to carry out his legal duties. Plaintiff only cites to the record
       three times, specifically citing to the circuit court order. He also cites to several Illinois cases in
       which the plaintiff citizens were found to have standing to seek mandamus against a public
       official, none of which involve the federal immigration statutes under which plaintiff here is
       seeking relief. See People ex rel. Gamber v. Board of Supervisors, 

 (1920); People
       ex rel. Faulkner v. Harris, 

 (1903); Hill v. Butler, 

 (1982);
       People ex rel. Newdelman v. Swank, 

 (1970). Plaintiff concludes that he
       “plainly alleged that he is a lifelong citizen and that Defendant failed to carry out his legal
       duties” and that, therefore, he “indisputably alleged sufficient facts to satisfy the standing
       requirement.” However, the right of a citizen to bring a mandamus action against a public


                                                      -5-
       official does not exist in a vacuum. “Mandamus is an extraordinary remedy traditionally used
       to compel a public official to perform a purely ministerial duty.” Bremen Community High
       School District No. 228 v. Cook County Comm’n on Human Rights, 

,
       ¶ 14 (citing People ex rel. Birkett v. Konetski, 

, 192-93 (2009)). A court will only
       grant mandamus if the plaintiff has established: (1) a clear, affirmative right to relief; (2) a
       clear duty of the public officer to act; and (3) clear authority in the public officer to comply.
       Bremen, 

, ¶ 14. Here, plaintiff failed to establish any of the
       requirements for a grant of this extraordinary remedy in his opening brief. He does not once
       reference the federal immigration statutes and he does not cite any authority suggesting that the
       unnamed statutes require defendant to follow the directives within.
¶ 17       In his opening brief, plaintiff concedes that a decision on standing “may differ depending
       on the issue involved and the nature of the relief sought. [Citations.] Whether the plaintiff has
       standing to sue is to be determined from the allegations contained in the complaint.” Martini v.
       Netsch, 

, 695 (1995). Despite this acknowledgment, plaintiff does not cite
       the complaint in his opening brief and only refers to his allegations that he is a citizen and that
       defendant is a public official. These minimal references to what amount to the first two
       paragraphs of a 37-paragraph complaint are insufficient to comply with the rule.
¶ 18       Furthermore, in Illinois, standing does require “some injury in fact to a legally cognizable
       interest.” Greer v. Illinois Housing Development Authority, 

, 492 (1988). Here,
       plaintiff does not name his injury or a legally cognizable interest; he does not name the specific
       injury that plaintiff, as a citizen, suffered and he does not refer to the specific legal duty he is
       alleging the defendant failed to fulfill. Plaintiff never cites to his complaint for mandamus and
       he does not analyze why he has standing for the extraordinary relief he is requesting. The
       subject of plaintiff’s actual argument is completely and conspicuously missing from his
       opening brief. The appellate court is “not a depository in which the burden of argument and
       research may be dumped.” Holzrichter, 

, ¶ 80.
¶ 19       Additionally, plaintiff’s reply brief highlights his complete failure to provide any reasoned
       argument about the facts of the present case in his opening brief. For the first time in his reply
       brief, plaintiff references the federal immigration statutes under which he argues he is entitled
       to relief. In a footnote, plaintiff explains that “[d]ue to an intervening change of circumstances,
       Plaintiff has elected not to pursue his claim regarding ICE detainers.” Then, again for the first
       time in his reply brief, plaintiff argues that defendant has a legal duty to refrain from
       prohibiting or restricting communications or the exchange of information with federal
       immigration officials about a person’s citizenship or immigration status pursuant to 

 and 1644. However, Rule 341(h)(7) provides that “[p]oints not argued [in the opening
       brief] are waived and shall not be raised in the reply brief.” (Emphasis added.) Ill. S. Ct. R.
       341(h)(7). Plaintiff did not argue the merits of his underlying claim in his opening brief and
       has, therefore, waived consideration of the merits on appeal.
¶ 20       For the reasons outlined above, we find that plaintiff’s opening brief is completely
       deficient and fails to comply with Rule 341. Although we seldom enter an order dismissing an
       appeal for failure to comply with supreme court rules, our sound discretion permits us to do so.
       Holzrichter, 

, ¶ 77. Therefore, in our discretion, we strike plaintiff’s
       brief and dismiss the appeal.

¶ 21      Appeal dismissed.

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