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Sheriff's 'frivolous' appeal dismissed

Thursday, April 29, 2010
Crain's Chicago Business
by John Flynn Rooney

The Cook County sheriff pursued a frivolous appeal as a delaying tactic in a case where jurors found that jail officers subjected inmates to unreasonable strip searches over a two-year period, a federal appeals court has ruled.

The 7th U.S. Circuit Court of Appeals panel on Wednesday dismissed an interlocutory appeal of a trial court's ruling that Sheriff Thomas J. Dart is not immune from any liability under the 11th Amendment.

"This appeal is substantively frivolous," Chief Judge Frank H. Easterbrook wrote for the three-judge panel in Wednesday's decision. "It is nothing but a delaying tactic and deserves to be swiftly squelched."

The underlying class-action lawsuit challenged the manner in which prisoners were searched at intake. U.S. District Judge Matthew F. Kennelly presides over the class-action case.

In a ruling issued in September 2009, Kennelly declined to stay the proceedings in the lawsuit while Dart pursued the interlocutory appeal.

Dart asserted that a provision of the Illinois Administrative Code allegedly requiring that incoming prisoners be strip-searched transforms the county jailers who conduct those searches ó as well as county officials who order them ó into state actors.

As state actors, jailers and officials are protected from those claims that the manner in which the intake searches were conducted at the Cook County Jail from February 2007 to March 2009 violated the Constitution, Dart argued.

But Kennelly rejected that argument when Dart raised it at the end of trial.

The jury went on to return a verdict finding that the rights of the prisoners were violated by the manner in which the strip searches were performed.

In Kennelly's opinion issued last fall denying Dart's request for a stay, Kennelly described the sheriff's interlocutory appeal on the immunity issue frivolous.

The appeals court panel also rejected Dart's assertions about the state's Administrative Code.

"The sheriff is responsible for his own policies ó and as a state actor (but not himself 'the state') for any unconstitutional policies that Illinois has directed him to implement," Easterbrook wrote for the panel. "This interlocutory appeal is dismissed because it is not from a 'final decision' and because it is frivolous. Any remaining arguments are open to review on appeal from this decision."

Judges William J. Bauer and Diane P. Wood joined in the 13-page opinion. Lee Mercado, et al. v. Thomas J. Dart, Sheriff of Cook County, No. 09-3092.

Michael Kanovitz of Loevy & Loevy in Chicago argued the case for the plaintiffs before the appeals court panel on April 5.

"It's a fantastic victory for the class, and it's exactly what we expected would happen," Kanovitz said of Wednesday's decision, adding that the class consists of between 500,000 and 600,000 members.

Christopher P. Keleher, a shareholder with Querrey & Harrow Ltd. in Chicago argued the case on Dart's behalf.

The lead attorney for Dart is Daniel F. Gallagher, another Querrey & Harrow shareholder. Gallagher could not be reached for comment early Thursday afternoon.

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