State and Local Legislation Bulletin
Carl Little, Esq., Editor · Issue 31, January 2010
In this Issue:
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Senator Pearce Moves State Omnibus Enforcement Bill through Committee in Arizona
On January 20, the Arizona Senate Public Safety and Human Services Committee passed Senator Russell Pearce's bill SB 1070, Support Our Law Enforcement and Safe Neighborhood Act. The committee vote cleared the measure for a floor vote by the full Senate. The package of related measures contains many innovations intended to discourage illegal aliens from travelling to or residing in the state in violation of federal laws.
If enacted, SB 1070, would be the first state legislation in the nation to make a trespassing misdemeanor for an alien to enter state public lands, or certain designated private property, without carrying his or her alien registration documents as required by federal immigration law (8 U.S.C. § 1301 et seq.). Any person arrested twice under the proposed law would be charged with a felony.
SB 1070 also includes provisions proscribing sanctuary policies, prohibiting and restricting any government agency or city from limiting immigration enforcement, and imposing penalties on those who transport, harbor, or conceal illegal aliens. The bill also seeks to discourage day labor employment by prohibiting the solicitation of work in a public place or from hiring someone from a vehicle.
Senator Pearce has expressed his confidence that the measure will pass through the legislature and be signed into law.
Panel Passes Senator Delph's Bill in Indiana
The Indiana Senate Committee on Pensions and Labor on January 20, approved SB 213 on January 20. The bill was scheduled for a hearing by the Senate Appropriations Committee on January 26.
SB 213 combines a number of related enforcement measures. State and local agencies would be required to use E-Verify for new employees, state or local government sanctuary policies would be forbidden, and the use of a foreign consular card or ITIN for official purposes would be restricted. SB 213 also increases criminal penalties for false identification offenses, and creates new state offenses which mirror the federal immigration crimes of transporting or harboring illegal aliens.
SB 213 closely tracks IRLI-draft legislation sponsored by Senator Delph in past legislative sessions. IRLI worked with Senator Delph for the past three years, providing technical drafting assistance.
For 2010, the Senator modified several provisions, as Indiana's budget problems have pushed the legislature to reduce fiscal impacts across the board. While the bill includes no spending measures, some Senators opposed to cooperative enforcement are reported to be arguing that the enforcement provisions of the bill come with a cost. Senator Lindal Hume told the Evansville Courier & Press, "There are many fiscal implications tied into this bill. Increased penalties for falsely producing driver's licenses is fiscal." Apparently Senator Hume places enforcement of the law as a low priority, since the provision that he mentions already exists in Indiana law and the increased penalty for its violation was included last year in Senator Delph's bill at the request of the Indiana Prosecuting Attorneys Council.
Respect Washington Files Omnibus Ballot Initiative
On January 12 the Associated Press reported that the citizen activist group Respect Washington, has filed Initiative Measure I-1056, The Washington Respect for Law Act of 2010, with the Secretary of State.
I-1056 was originally drafted by IRLI in 2008, based on a request from Washington state activists to create a measure that would incorporate as many IRLI model state enforcement laws as was consistent under the "single subject" rule, which limits the content of ballot measures in Washington and most other states that provide for citizen initiatives.
The ballot initiative contains multiple interrelated provisions which support cooperative immigration law enforcement by Washington state officials. Most of the provisions are derived from measures already enacted or introduced in other states.
- Section 1 bars non-cooperation or sanctuary polices by state and local agencies, mirroring similar federal statutes enacted in 1996.
- Section 2 requires that the immigration status of all persons jailed for a felony or DUI charge be verified, and creates a rebuttable presumption for purposes of determining bail that illegal aliens are flight risks.
- Section 3 requires the state Attorney General to negotiate a 287g cooperative enforcement agreement with the Department of Homeland Security.
- Section 4 requires all public employers and public contractors to participate in the E-Verify online work authorization verification program.
- Section 5 mandates eligibility screening of all noncitizen applicants for state or local public benefits, using the federal SAVE system.
- Section 6 would make it an unlawful discriminatory practice for an employer to discharge a US worker while retaining an unauthorized alien, or for a union to refer a known illegal alien to an employer for work.
- Section 7 requires all employers in the state to participate in the E-Verify program, and suspends the business licenses of employers who willfully employ unauthorized aliens.
- Section 8 makes an employer who has received two or more workers compensation claims from illegal aliens with 12 months an "uninsured employer" subject to fines and penalties, and requires illegal aliens to return to their country of origin before they may collect disability payments.
- Section 9 makes it unlawful for a non-profit organization to offer employment services to unauthorized aliens. Section 10 ends the practice of issuing drivers licenses and state ID cards to illegal aliens.
To qualify for the ballot, Respect Washington will need to gather 241,153 valid signatures from voters by July 2.
Lake St. Louis City Council Passes Investigation Measure
Lake St. Louis City Council approved a municipal ordinance on January 19 that creates a system to identify and report illegal immigrants to federal authorites.
The measure, which was reported on KSDK.com had been on the legislative calendar for 18 months. Passage of the ordinance was delayed while a similar ordinance, approved by the City of Valley Park, another St. Louis suburb, was being challenged in court. After the Valley Park law, for which IRLI provided legal defense assistance, was upheld in court, the Lake St. Louis City Council concluded that it would be on firm legal ground to pass a its ordinance.
The ordinance was sponsored by Alderman Harry Slyman and requires City Administrator Paul Markworth to enforce it administratively after citizens report suspected illegal aliens working in the City. Markworth would then be required to conduct an initial investigation, after which he would contact the federal government if the investigation indicated suspected unlawful employment.
Lancaster, California Requiring E-Verify
According to the Los Angeles Times the city of Lancaster, California is requiring all businesses to use E-Verify for all of their newly hired employees. Businesses that do not comply with the new ordinance risk having their business licenses revoked. Lancaster Mayor R. Rex Parris noted that tough economic times had led to 17% unemployment in the Antelope Valley, and added, "We are working to ensure that all available jobs in our city go to hard-working, law-abiding citizens."
New Jersey Fails to Pass In-State Tuition for Illegal Aliens
On January 11th, New Jersey Senator Ronald Rice called off a vote on a bill he sponsored to offer in-state tuition to illegal aliens at new Jersey's public colleges. Senator Rice called off the vote after he realized he lacked the necessary votes needed to pass the bill. According to NorthJersey.com, the bill would have benefited an estimated 2,000 illegal aliens. Governor-elect Chris Christie opposes such a policy, and threatened to veto any similar measure reaching his desk. The in-state tuition rate is aproximately $11,000.00 a year, while non-resident students are charged nearly twice that amount.
Under federal law, such benefits offered to illegal aliens are unlawful unless the state makes in-state tuition available to all U.S. citizen students.
IRLI Challenges Nebraska Illegal Alien In-State Tuition Law
On January 26, IRLI sued the Board of Regents for the University of Nebraska System, the Board of Governors for the State College System, and the Board of Governors for each of the Nebraska Community Colleges to end the practice of public universities offering in-state tuition to illegal aliens at the expense of Nebraska taxpayers.
A 2006 state law, NRS § 85-502, made illegal aliens living in Nebraska eligible for in-state tuition. In-state tuition only covers a part of the expense of university study and is heavily subsidized by public funds. At stake are millions of dollars in improper tuition fees.
The plaintiffs are taxpayers from Jefferson County. The complaint alleges that implementation of NRS § 85-502 by Nebraska higher education institutions was preempted by federal law. Declaratory and injunctive relief to nullify the state measure is sought. A favorable ruling would also open the door for the many out-of-state American students improperly charged non-resident tuition to apply for refunds.
Kris Kobach, IRLI Senior Counsel, will argue the case for the citizens. "This lawsuit not only saves Nebraska taxpayers money, it also vindicates Governor Heineman," said Kobach. Gov. Heineman vetoed the bill in 2005, stating that it would violate federal law, but the Legislature overrode his veto.
Ten states have enacted measures like Nebraska's in defiance of federal law. However, four of those laws have now been challenged in court, including Nebraska's. Oklahoma partially repealed its law in 2007, and bills to repeal the laws in Utah and Kansas have been introduced.
"Through legal action or repeal legislation like LB 1001, the bill just introduced by Senator Janssen of Fremont, the states are beginning to step back from open defiance of the Constitution and renounce unlawful policies that treat illegal aliens better than American citizens," said IRLI General Counsel Mike Hethmon.
Nebraska Supreme Court Hears Freemont Nebraska Case
On January 7th, the Supreme Court of Nebraska heard a challenge to a proposed Freemont, Nebraska ordinance that would prohibit residents from hiring illegal aliens and from renting residences to those who cannot prove their legal presence. The ordinance was rejected in 2008 when the Mayor of Freemont cast the tie-breaking vote. Three Freemont residents, Jerry Hart, Wanda Kotas and John Wiegert then organized a petition drive and succesfully placed the proposed ordinance on the ballot. The city contends that the proposed ordinance conflicts with federal housing law and that they lack authority to enforce such a measure, however, a district court ruled in April that it had no authority to judge the validity of a law that had not yet been enacted.
The arguments before the Nebraska Supreme Court were not on the substance of the ordinace but on the authority of a court to make a determination of its validity before it is enacted. IRLI's counsel, University of Missouri-Kansas City law professor Kris Kobach, argued that it would violate the Nebraska constitutional separation of powers doctrine for a court to rule on the validity of the ordinance prior to its adoption by the voters because it would amount to an unconstitutional advisory opinion—essentially, ruling on a law that may never be enacted.
Frederick County Maryland Sheriff Moves to Dismiss Illegal Alien Lawsuit
On January 19, IRLI filed a motion asking Maryland federal judge Benson E. Legg to dismiss a lawsuit filed by illegal alien Roxana Santos against Sheriff Charles Jenkins, the County Board of Commissioners and two Sheriff's deputies. The lawsuit claims that Santos, a Salvadoran alien who had absconded from a removal hearing in Texas and was working unlawfully in Maryland, suffered a violation of her civil rights when she was detained by the deputies, after presenting them a consular ID card when asked for identification. The deputies detained Santos while running an NCIC computer check, which reported an outstanding civil warrant from ICE. Santos was held overnight and transferred into ICE custody.
The Sheriff's motion explains that the deputies possessed police authority under existing state law to arrest Santos, and that her disclosure that she only possessed a foreign consular card as identification established reasonable suspicion, leading to probable cause to detain her for violations of both civil and criminal provisions of federal immigration law. The motion also moves to dismiss the Equal Protection claim against the Sheriff citing recent Supreme Court and Fourth Circuit case law which rejects the claims made by Santos. See Ashcroft v. Iqbal, 129 S. Ct 1937 (2009); see also Monroe v. City of Charlottesville, 579 F.3d 380, 387 (4th Cir. 2009).
As the practice of including a requirement that public contractors screen their new hires using the E-Verify system in state and local laws spread, IRLI has received multiple inquiries about the definition of covered employers. Some legislators have said that they were concerned that a broad draft, covering providers of all goods and services, would present them with an overwhelming enforcement burden, considering that many governments buy goods in quantities from a single item to bulk quantities. Another issue has been how to fairly fashion the proper exceptions for this legislation. In some of the earliest measures, concerns over scope promoted legislators to narrowly limit the verification requirement to service contracts.
IRLI has now drafted several legislative proposals for states and localities that require E-Verify for contractors of both goods and services, but which include exceptions based upon the federal executive order requiring E-Verify for federal contractors.
The model legislation we have developed can be tailored to a specific state or localities needs. IRLI recommends the inclusion of a short list of exceptions to the general requirement for government contractors to use E-Verify. The exceptions are designed to accomplish several things. First, they are designed to ensure that enforcement of the law does not become a barrier to bidding by law-abiding small businesses. Second, they ensure that the law will fully conform to federal standards and not raise preemption concerns. For instance, a state may contract with a foreign contractor who performed all the work overseas and whose employees thus are not subject to federal employment authorization procedures. The state law should reflect, through the inclusion of an exemption, that it is not enforceable internationally. Additionally, many public contracts are for commercially available off-the-shelf items, for which the federal government does not require contractor participation. IRLI model language mirrors the exemption of these "purchase order" type commercial item contracts.
Another frequent question has been the status of the out-of-state employees of a state public contractor. Although a formal rule has not been issued, it appears to be the position of the Department of Homeland Security, which administers the E-Verify program, that may elect one of two approaches.
We would also recommend adding a layer of enforcement and protection for contractors in their relationship with subcontractors. In our draft legislation we have included a provision that would require contractors to include in their contracts with subcontractors a flow-down clause requiring the subcontractor to use E-Verify. In return, the contractor would be exempt from liability for the use of unauthorized labor by a subcontractor, so long as the contractor cooperated with state officials in the investigation of a complaint against the subcontractor's workforce. IRLI recommends that the proposed law allow the contractor to terminate the contract for a material breach. We believe that this type of arrangement gives notice to subcontractors of the law and adds a layer of enforcement for which the state would not have to expend funds.
If you would like to consult with our staff on best practices for implementing online employment verification authorization in your state or locality, please do not hesitate to contact us.