State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 15, July 2008

In this Issue:
Behind the Headlines
New State Legislative Activity
New State Enforcement Laws
Local Legislation
IRLI Tip of the Month

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Behind the Headlines

VICTORIES

Missouri Omnibus Immigration Measure Enacted into Law
Governor Matt Blunt has signed into law significant immigration legislation to respond to the illegal immigration dilemma within Missouri. This legislation is being touted as one the strongest pieces of legislation around the country.

The legislation is a package of four complementary acts which mandates the following important reforms: (1) the Highway Patrol shall enter into a 287(g) agreement with the federal government; (2) no city, county, town or village shall enact sanctuary city policies; (3) illegal aliens are precluded from receiving public benefits except where mandated by federal law; (4) an employer is prohibited from classifying their workers as independent contractors instead of employees and they must file 1099-Misc with the Department of Revenue; (5) an employer must not knowingly employ an unauthorized alien and all public employers, public contractors, and state grantees must enroll in the E-Verify program; (6) applicants must demonstrate lawful status to obtain a driver's license, and licenses from states that do not verify status will no longer be recognized in Missouri; (7) bail shall be denied to persons that cannot demonstrate lawful status; (8) the federal felony of transporting illegal aliens will be added to the state criminal code; (9) the immigration status of all persons convicted of a crime shall be verified; and (10) no government officials can be restricted from communicating with federal immigration officials.

IRLI advised the legislative sponsors to adapt successful attrition through enforcement provisions from other omnibus state measures, focusing on a careful technical balancing of state inherent authority and federal plenary power. See June bulletin for further details.

California Minutemen First Amendment Victory
The San Diego Minuteman (SDMM) have won an important civil rights battle by successfully challenging the revocation of their participation in the state Adopt-a-Highway (AAH) Program. United States District Court Judge William Q. Hayes issued a preliminary injunction (or injunction for the duration of the trial) against the California Department of Transportation (CalTrans). The Judge found that the hardships tipped in favor of the Plaintiffs.

SDMM had been approved for the AAH program and were assigned a sector on the northbound I-5 Interstate, near a major Border Patrol checkpoint. Pro open border groups and legislators protested the designation, alleging that SDMM were a "hate-group." These groups further claimed that assigning the I-5 sector to SDMM would create a safety risk and argued that CalTrans was violating a policy by approving the application. Timid CalTrans officials were unwilling to respond to these political attacks, and suddenly relocated the Minutemen to a less traveled portion of another more remote state highway.

To challenge this act of anti-citizen bias, SDMM took legal action, claiming that CalTrans discriminated against the political viewpoints of the citizen activists in violation of their rights protected by the First Amendment.

Restrictions on expression in a nonpublic forum (a restricted access freeway) are constitutional only if the distinctions drawn are viewpoint neutral and reasonable in light of the purposes served by the forum in question.

The court noted that it was improbable that Caltrans could demonstrate that the state restriction furthered a legitimate purpose, as required. Caltrans had argued that the reassignment promoted public safety, by responding to fears that the public would throw objects at the SDMM members picking up trash along the highway. The court found that the standards Caltrans used to classify these "safety risks" were vague and conjectural. Judge Hayes also reminded Caltrans that government agencies may not restrict speech simply because of a feared negative reaction from the public.

The court also did not find credence in Caltran's claim that the SDMM sign was removed because it was near a law enforcement checkpoint where all signs were removed to promote safety. The court held there was no evidence in the record to suggest Defendants had removed any other signs.

IRLI congratulates the SDMM and their counsel Howard Kaloogian. There is a coordinated national campaign underway to demonize local activist group activities as quasi-criminal, in order to intimidate supporters of immigration reform and drive them from the public square. This campaign is particularly threatening because illegal aliens themselves do not have the constitutional right of free association, a privilege reserved to citizens and legal immigrants. The SDMM, by undertaking the often onerous task of defending citizen rights in the courts, have played an important role safeguarding one of the fundamental rights and privileges of citizenship — free speech and association.

COURTROOM REPORTS

Arizona HB 2779 New Legal Challenge
HB 2779, which went into effect in January, provides that an employer's business license may be suspended or revoked for employing unauthorized aliens. This successful law is presently facing another legal challenge. The Ninth Circuit Court of Appeals heard the challenge to the Arizona employers' sanctions law on June 12, 2008. Kris Kobach, represents the state to defend this employer sanctions law. Kris stated after the hearing, "[b]ased on the questions that the Judges asked at oral arguments, I'm cautiously optimistic that the Ninth Circuit will affirm the decision of the District Court below and uphold Arizona's statute preventing the employment of unauthorized aliens. The law is on our side. No matter how creative the attorneys on the other side get, they can't make a serious dent in Arizona's legal position."

Cavecreek, Arizona Solicitation Litigation
United States District Judge Silver has ruled that it was unconstitutional to stop day laborers from engaging in verbal solicitation for employment on the streets of Cave Creek. Three day laborers filed a lawsuit stating that the ordinance was an unconstitutional restriction on their First Amendment rights (see article).

IRLI believes that localities can enact ordinances prohibiting day labor solicitation. However, this cannot be achieved by broadly proscribing workers' constitutionally protected freedoms of expression (i.e. gesturing included) with distinguishing between unauthorized aliens and citizens or immigrants with work authorization. IRLI attorneys have repeatedly advised local jurisdictions over the past decade that pre-textual restrictions invite equal protection challenges from the ACLU and other militant legal defense groups. If a city adopts a "neutral" nuisance or public safety ordinance to furtively deal with what is really an immigration problem, and then issues most of its enforcement citations to persons of the same national origin, the city is at serious risk of an expensive racial profiling claim, with intrusive ongoing enforcement by civil rights agencies. The Cave Creek initiative exemplifies the hazards of an unsophisticated approach, in this case attempting to outlaw making a public gesture of readiness to work by members of the public, an act which is clearly protected expression and conduct under the First Amendment if made by a citizen.

Having stated the limitations — IRLI has developed a model day labor ordinance which, by focusing on the undisputed fact, confirmed by every research study on the topic, that between 60 and 90 percent of all day labors at a given site lack work authorization. The model language avoids constitutional problems by limiting sanctions to illegal alien laborers.

Idaho Medical Care Ruling
The Idaho State Supreme Court has held that illegal aliens are entitled to medical care when they are injured (see article). One justice dissented. In Saint Alphonsus Regional Medical Center, Inc. v. Board of County Commissioners of ADA County, a county board denied a hospital's application for reimbursement of $187,000 in medical bills not paid by an indigent illegal alien, on the ground that this illegal alien could not be a resident of Idaho. On appeal, the state high court in the state determined that immigration status does not determine residency.

IRLI believes that this finding contradicts federal case law which has long held that illegal aliens are barred as a matter of federal law from claiming legal domicile in a state. In almost all 50 states, domicile requires a two-part test, physical presence in the jurisdiction, as well as intent to remain permanently. An illegal alien as a matter of law lacks the requisite intent to permanently remain in the United States, since they are subject to detention and deportation at any moment. (See Toll v. Moreno,458 U.S. 1 (1982)). Any attempt by a state to circumvent federal immigration law by recognizing illegal aliens as state residents for official ID purposes is either a state "regulation of immigration" or a durational residency requirement, both of which are unconstitutional.

Los Angeles Special Order 40 Lawsuit
On June 10th, a Superior Court judge dismissed a challenge to L.A.'s infamous Special Order 40 (SO 40) (see article). Special Order 40 is one of the oldest police non-cooperation measures in the United States. SO 40 restricts Los Angeles police officers from inquiring into a person's immigration status or reporting illegal aliens to federal immigration authorities.

The 2006 suit was a facial challenge brought by the Judicial Watch group on behalf of a nominal plaintiff, L.A. resident Harold Sturgeon under California's taxpayer standing statute.

Facial challenges on preemption grounds are risky legal maneuvers. As the Court pointed out, the Plaintiff had no personal experience with any officers within the Los Angeles Police Department and was thus not directly affected by its implementation. In other words, because the token plaintiff had shown no personal harm, the court would examine only the text of SO 40, and not its effects.

Judicial Watch argued that SO 40 conflicted with the federal anti-sanctuary statutes, 8 U.S.C. §§1373 & 1644. These laws prohibit restrictions on the discretion of government officials at all levels to communicate with federal immigration authorities regarding the immigration status of any person. Because Judicial Watch had shown no harm to Mr. Sturgeon, the Court insisted that the Plaintiffs must demonstrate a total conflict with the provisions, and that there must be no instance in which SO 40 was valid. Since SO 40 does not refer to such communication on its face, and does not prevent a police officer from communicating with immigration officials once an arrest has been made, the Court found there was no fatal conflict.

IRLI has not learned whether an appeal will be taken. However, the disposition of this case illustrates the hazards of "press release advocacy" by supporters of immigration reform. Asking a court to decide a highly controversial public policy question without first preparing evidence to demonstrate severe and compelling harm to the plaintiff-advocate has again lead the immigration reform movement down a shortcut to nowhere.

Oklahoma HB 1804 Ruling
HB 1804 remains a high profile target for special interests on both the right and left. In early June, a federal district judge blocked the employer provisions of this bill and granted the opposition a preliminary injunction (enjoining execution of these sections for the duration of the district court proceedings). Oklahoma state officials have appealed this decision (see article). Advocates are concerned that the state attorney general's office may choose to defend the measure using certain obscure state rights legal theories that avoid reliance on the state's inherent authority to cooperatively enforce immigration law. The Oklahoma attorney general and Governor Henry were public opponents of HB 1804.

The judge's opinion adopted the most radical "field preemption" theory promoted by the ACLU, namely that citizens and local jurisdictions have no rights at all to protect themselves against illegal aliens in the federal courts. No federal circuit court has yet supported this sweeping judicial restriction of the privileges of citizenship.

A state's right to sanction companies for employing unauthorized aliens, by suspending business licenses, has been upheld by two district court judges. In Missouri, U.S. District Court Judge Webber found that federal law specifically permits licensing laws. Gray et al. v. City of Valley Park, No. 4:07-cv-00881-ERW (Eastern District of Missouri).

In Arizona, Judge Wake issued an even more sweeping decision to county attorneys, who are directed by Arizona's Legal Arizona Workers Act (LAWA) to enforce a statewide ban on the use of illegal alien workers by licensed Arizona businesses. Arizona Contractors Ass'n. et al v. Candelaria et al. No. CV07-2496-PHX (District of Arizona). Judge Wake rejected facial challenges to LAWA on numerous grounds, finding that (1) the business licensing enforcement approach was approved by Congress, (2) states have an interest in preventing the disproportionate harm to the state economy caused by the employment of illegal aliens and (3) states may exercise their inherent police power in the area of business licensing.

The underlying dispute over the rights of citizens to protect themselves in the face of federal inaction against unlawful foreign settlement raises questions as important to our future society as Dred Scott v. Sandford and Plessey v. Ferguson posed for the Civil War and Jim Crow eras of the past.

OTHER HEADLINE EVENTS

Phoenix Operations Order 1.4
As reported in the IRLI June Bulletin, Police Chief Jack Harris had announced changes to this controversial non-cooperation directive. News reports stated that the changes removed restrictions on a police officer's authority to inquire into immigration status. A panel, established by Mayor Phil Gordon, promulgated "new" guidelines for Phoenix police officers pertaining to immigration issues.

However, the Mayor's claims are disputed by the Phoenix Law Enforcement Association (PLEA). In a press release, PLEA claims that this policy recommendation "offers very little deviation from what Phoenix officers were already allowed to do..." PLEA further states that this "change" is just a rewording of the current policy. Essentially, Phoenix officers are still not permitted to inquire into a person's immigration status when conducting a routine traffic stop or upon reasonable suspicion.

When an arrest is not made, but there is a reasonable basis to believe the individual is an illegal alien, the guidelines state that an officer may fill out an Immigration Status Form and report the person to ICE. The officer completes the form based on information given to them by the suspected illegal alien. PLEA complains that is it is ludicrous to assume that an illegal alien will disclose their actual name and other identification information which would facilitate their removal from the United States. Furthermore, PLEA notes that this policy continues the Department's existing "catch and release" policy for aliens detained on non-felony charges.

Portland Day Labor Center Opens
The city of Portland has joined a growing list of local governments who directly sponsor day labor hiring centers which cater to unauthorized workers (see article). The City repeats the arguments of day labor advocates who claim that operation of a sponsored site will ensure that an employer pays a fair wage and does not take advantage of the day-laborer. All available studies of day labor operations contradict this claim.

The national pattern, without exception, has been that day labor centers attract large numbers of additional unauthorized workers who further depress the market for unskilled labor.

Advocate-operated sites typically require day-laborers to "take a number" when they use the center to meet employers, on a lottery or first-come-first-served basis. As illegal aliens are attracted to the hiring hall neighborhood because of its outlaw reputation, the most desperate recent arrivals invariably bypass the center to solicit work on nearby streets and parking lots. The scofflaw employers who seek exploitable labor find employing the "outlier illegals" more profitable and less risky. The day labor center thus re-produces the dilemma the site was designed to prevent on a larger scale.

Day labor regulation is one of the most persistent and difficult challenges for reform advocates. As the Cave Creek case emphasizes, any government program which fails to respect work authorization law, whether "pro" or "anti" illegal worker, invariably leads to increased lawlessness and exploitation.

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New State Legislative Activity

Michigan HB 6224
HB 6224 was introduced on June 5th. If an officer of the state Workman's Compensation Agency receives information that the applicant was an "undocumented" alien, HB 6224 would require the official to immediately notify federal immigration authorities. IRLI believes that that "undocumented" alien is not a legally cognizable immigration status. HB 6224 should have utilized a definition from the Immigration and Nationality Act (8 U.S.C. 1101) — which defines illegal alien.

California AB 2076
AB 2076 passed a senate committee in late June. This bill prohibits any California agencies from utilizing the e-verify program required by federal law due to the alleged rampant discrepancies in this database system.

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New State Enforcement Laws

Colorado HB 1325
HB 1325, the Colorado Nonimmigrant Agricultural Seasonal Worker Pilot Program Act, was signed into law by Governor Ritter, Jr. on June 5th. HB 1325 establishes the Nonimmigrant Agricultural Seasonal Worker Pilot Program Council, a quasi-official state agency which will apparently coordinate and expedite the application process for Colorado agribusiness entities seeking to temporarily import farm labor under the federal H-2A program.

Florida SB 948
SB 948 was introduced in January and signed into law by Governor Crist on June 10th. SB 948 provides that the Department of Agriculture and Consumer services shall issue a gun license only if the individual is a lawful citizen or permanent resident.

Vermont SB 358
SB 358 was enacted into law by Governor Douglas on June 5th. This bill mandates that an individual must show proof that they are a U.S. citizen before they can obtain a driver's license.

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Local Legislation

Harris County, Texas
The Harris County Sheriff's Office has enrolled in the 287(g) program. (see the July Legislation Bulletin for further information on these programs) and is sending nine jailers for immigration training that will teach them how to adequately inquire into an inmate's lawful status and detain them for federal immigration officials. The officers will be trained at an Immigration and Customs Enforcement (ICE) Federal Law Enforcement Training Center in Georgia.

Loudon County, Virginia
Sheriff Stephen Simpson recently informed the County Board of Supervisors that he has reached an agreement with the Immigration and Customs Enforcement (ICE) (see article). Law enforcement officials in this affluent northern Virginia suburb will routinely check the immigration status of arrested persons suspected of being illegal aliens. The dropping crime rates in neighboring jurisdictions like Prince William County are demonstrating to local elected officials that programs to facilitate the removal of criminal aliens — in particular illegal aliens who commit crimes — is a highly cost-effective law enforcement practice.

Raleigh, North Carolina
The Raleigh sheriff's department will check the status of all of their jail inmates. Other selected North Carolina counties will receive ICE training this July.

Salt Lake City, Utah
Weber and Washington counties in Utah have also entered into 287(g) agreements with ICE (see article). Certain officers within these counties will be trained to verify the immigration status of inmates in county detention facilities.

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IRLI Tip of the Month:

Impermissible Meddling by Foreign Consulates

Foreign consular officials have diplomatic immunity pursuant to the Vienna Convention. However, interference by foreign consulates in the internal affairs and the duties of state and local elected officials is not authorized by the Convention or other international law.

Under the guise of "protecting" their nationals who are illegally in the U.S., certain foreign consulates, notably those of Mexico, have begun to aggressively intimidate state officials and local officials in order to deter them from enforcing American immigration law. IRLI is receiving increasing reports of consular officers attempting to utilize taxpayer funds to facilitate their unauthorized interference and subversion.

If you are concerned about this aforementioned dilemma, IRLI urges you to report abuses to the Office of Foreign Missions within the U.S. Department of State. This federal bureau is responsible for monitoring foreign diplomatic activity to protect the American public from abuses by diplomatic personnel admitted to this country with diplomatic immunity. However, the OFB is notorious for failing to advise or warn foreign diplomatic agents when abuses of diplomatic status are reported.

Please contact IRLI if you would like to report or discuss cases of possible foreign diplomatic interference in your local government.