Case: 1:1l-cv-01722 Document #: 58 Filed: 06/20/12 Page 1 of 3 PagelD #:200

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
LOUIS FROBE, Plaintiff, vs.
)

VILLAGE OF LINDENHURST, et al., Defendants.

) ) ) ) ) ) ) ) )

Case No.: ll-CV -1 722 Hon. Rebecca R. Pallmeyer

DEFENDANT LISA MADIGAN'S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF HER MOTION TO DISMISS

With leave of the Court (Dkt. No. 55), defendant Lisa Madigan, the Attorney General of Illinois , submits this supplemental memorandum in support of her motion to dismiss plaintiff' s claim against her.

l.

Plaintiff Louis Frobe filed this lawsuit challenging the constitutionality of In addition to the Village of Lindenhurst, three

Illinois' Eavesdropping Act ("Act").

Lindenhurst police officers, and the Lake County State's Attorney, plaintiff named Attorney General Madigan as a defendant. 2. Plaintiff's claim against Attorney General Madigan should be dismissed

because plaintiff has not alleged a credible threat that she will enforce the Act against him . (Dkt. No. 29 at 4-6; see also Dkt. No. 42 at 1-6) . This supplement confirms that there is no threat of enforcement by the Attorney General:

Attorney General Madigan has not prosecuted violations of the Act.

To the best of our knowledge, Attorney General Madigan has not prosecuted anybody for violating the Act. At oral argument, plaintiffs counsel claimed that Attorney General Madigan prosecuted Annabel Melongo under the Act, but plaintiff's counsel was mistaken, as explained in a statement 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 a prosecution under the Act. The Illinois Attorney General "cannot direct
the prosecution activities of the 102 States' Attorneys," and "lacks the power to take exclusive charge of the prosecution of those cases over which 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. Buffalo Confectionary Co., 401 N.E.2d 546, 549 (Ill. 1980). Because the Act does not 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 has represented that he will not prosecute plaintiff under the Act.

Attorney General Madigan represents that she will not prosecute plaintiff under the Act. Attorney General Madigan will not prosecute
plaintiff under the Act; nor will she assist in any prosecution of plaintiff under the Act. Attorney General Madigan made this representation at the December 19, 2011 oral argument, and repeats it here. This position has been 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 in public. The Seventh Circuit concluded that the ACLU has a "strong likelihood of success on the merits" and instructed the district court to enter a preliminary injunction preventing the State's Attorney from applying the Act against the ACLU. ACLU v. Alvarez, 679 F.3d 583, 608 (7 th Cir. 2012).

Attorney General Madigan withdrew her appeal in People v. Allison. The Circuit Courts for Crawford County and Cook County, Illinois have held that the Act is unconstitutional as applied to the recording of police officers. The Attorney General intervened in the Crawford County case, People v. Allison, but has withdrawn her appeal.
Accordingly, this Court should grant Attorney General Madigan's motion

3.

to dismiss on Eleventh Amendment grounds because there is no credible threat that she will enforce the Act against plainti ff. Attorney General Madigan reserves the right to file a separate motion 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.

Case: 1:11-cv-01722 Document #: 58 Filed: 06/20/12 Page 3 of 3 PagelD #:202

Dated: June 20,2012 Respectfully submitted, LISA MADIGAN Attorney General of Illinois
/s/ Michael T. Dierkes

Michael T. Dierkes Office of the Illinois Attorney General General Law Bureau 100 West Randolph Street, l3 ib Floor Chicago, illinois 60601 (312) 814-3000 Counsel for Defendant Attorney General Madigan

CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on June 20, 2012, he caused copies of the foregoing Defendant Lisa Madigan's Supplemental Memorandum in Support of Her Motion to Dismiss to be served on all registered counsel via the Northern District of Illinois Electronic Filing System.
/s/ Michael T. Dierkes

Michael T. Dierkes