Central Alabama Fair Housing Center et al v. Magee et al

Filing 74

OPINION AND ORDER that defendant Julie Magee's 57 Motion to Dissolve the Temporary Restraining Order is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 12/1/2011. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

CENTRAL ALABAMA FAIR
HOUSING CENTER, et al.,
Plaintiffs,
v.
JULIE MAGEE, in her
official capacity as
Alabama Revenue
Commissioner, and
JIMMY STUBBS, in his
official capacity as
Elmore County Probate
Judge,
Defendants.

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CIVIL ACTION NO.
2:11cv982-MHT
(WO)

OPINION AND ORDER
Defendant Julie Magee, Revenue Commissioner for the
State of Alabama, has filed a motion
temporary

restraining

November 23, 2011.

order

this

to dissolve the

court

entered

on

In that order, Central Alabama Fair

Housing Center v. Magee, 2011 WL 5878363 (M.D. Ala. Nov.
23, 2011), the court found that the plaintiffs were
likely to prevail on their claim that § 30 of the BeasonHammon Alabama Taxpayer and Citizen Protection Act, 2011

Ala.

Laws

535

(HB

56),

as

applied

to

Alabama’s

manufactured-homes statute, 1975 Ala. Code § 40-12-255,
is preempted by federal law.
*2.

Magee, 2011 WL 5878363, at

Commissioner Magee’s motion to dissolve will be

denied.

I.
As explained, § 30 of HB 56 makes it unlawful for
“[a]n alien not lawfully present in the United States” to
enter

into,

or

attempt

to

enter

into,

“a

business

transaction with the state or a political subdivision of
the state.”

HB 56 § 30 (Doc. No. 31-1, at 68).

Under

§ 30(d) of HB 56, an individual who enters into or
attempts to enter into such a transaction commits a Class
C felony, id., and can be imprisoned up to ten years.
1975 Ala. Code 13A-5-6(a)(3).

Meanwhile, in lieu of an

ad valorem property tax, § 40-12-255 requires that owners
of manufactured homes pay an annual registration fee to
obtain

an

identification

decal

2

that

must

be

visibly

displayed on the exterior of their manufactured home.
1975 Ala. Code § 40-12-255(a).

The registration and fee

are due October 1 of each year and considered delinquent
if

not

paid

by

November

30,

at

which

point

a

non-

compliant owner of a manufactured home can be given a
civil

fine

or

face

criminal

charges

for

a

Class

misdemeanor, punishable up to three months in jail.
Ala.

Code

§

13A-5-7(a)(3).

In

addition,

§

C

1975

40-12-255

requires that the owner of a manufactured home obtain a
permit “to move said manufactured home on the highways of
Alabama,”

and

a

current

obtain the moving permit.

registration

is

required

to

1975 Ala. Code § 40-12-255(j).

As above, moving a manufactured home without a permit is
subject to civil penalties and criminal prosecution as a
Class C misdemeanor.

Id.

Taken together, application of § 30 of HB 56 to § 4012-255 puts in an intractable dilemma aliens who wish to
keep their mobile homes but are unable to verify their
lawful residency: they face civil and criminal liability

3

for

not

paying

their

manufactured

home

tax,

while

simultaneously facing civil and criminal liability if
they attempt to remove their homes from the State.
can neither stay, nor can they go.
attempting

to

pay

the

They

In addition, even

registration

fee

without

verification of lawful residence amounts to a felony.
Because States “enjoy no power with respect to the
classification of aliens,” Plyler v. Doe, 457 U.S. 202,
225 (1982), and the power to “regulate immigration is
unquestionably exclusively a federal power,” state laws
that conflict with federal laws are invalid as preempted.
DeCanas v. Bica, 424 U.S. 351, 354 (1976).
order,

the

court

concluded

that

In its prior

defendant

Magee’s

application of § 30 of HB 56 to § 40-12-255 was likely
preempted because she was not, as required by HB 56
itself,

using

federal

standards--through

either

the

Systematic Alien Verification for Entitlements (SAVE)
Program
Homeland

or

by

verification

Security

(DHS)

with

the

pursuant

4

Department
to

8

of

U.S.C.

§

1373(c)--to

Magee’s

verify

practice

immigration

involved

the

use

status.
of

Instead,

“state-created

criteria” for determining immigration status, which is
impermissible.

See DeCanas, 424 U.S. at 355; League of

United Latin Am. Citizens v. Wilson, 908 F. Supp. 755,
770 (C.D. Cal. 1995) (Pfaelzer, J.).
In response, as expressed in a memorandum dated
November 28, 2011, and sent to various unnamed county
officials (probate judges, revenue commissioners, county
tax

collectors,

and

county

licensing

officers),

Commissioner Magee has interpreted the court’s ruling as
concerning

only

“the

process

to

be

followed

in

determining an alien’s lawful presence in the United
States” and as inapplicable to “the process to be used in
determining a person’s United States Citizenship.” Magee
Memo (Doc. No. 57-1, at 1).

Based on a distinction

between determining citizenship and an alien’s lawful
presence, the Department of Revenue’s policy now allows
state and local officials encountering those who wish to

5

enter

into

a

“business

transaction”

with

that

state

agency to first ask whether the individual has a valid
driver’s license.

If a person says “yes,” state and

local officials may use “the AL-Verify Program to confirm
that

...

applicant

has

a

valid,

unexpired

Alabama

driver’s license or non-driver’s identification card.”
Id.

If a person says “no” but claims to be a United

States

citizen,

then

the

officials

may

verify

his

citizenship through an enumerated list of documents.
(The list, apparently, is derived from § 29(k) of HB 56,
which § 30 incorporates by reference).

The policy does

not state what happens to a person who claims to be a
citizen but does not have an acceptable document for
verification; presumably the officials must refuse the
“business transaction.”

However, if a person says “no”

to having a driver’s license and again says “no” to being
a citizen but instead “states that he is a lawful alien
(lawfully

present

in

the

United

6

States),

then

the

person’s status as a lawful alien should be verified
through” SAVE or DHS.

Id. at 2.

As the new policy recognizes, registration for SAVE
See id.

is not automatic.
U.S.

Citizenship

and

Instead, as indicated by the

Immigration

Services

(USCIS)

website, use of SAVE requires each agency to apply for
authorization by providing background information on the
agency,

which

includes

both

the

source

of

law

“authorizing [the] agency to administer the benefit or
license or engage in another activity for which [the]
agency

will

be

verifying

immigration

status”

and

an

estimate of the “number of queries [the] agency will
submit each year.”

USCIS Website (Doc. No. 67-7, at 2).

After that, an agency must await “legal review,” which
can take several weeks to complete.

Id. at 3.

The

agency must then enter into a memorandum of agreement
with

USCIS

that

outlines

the

agency’s

financial

obligations and the amount it will pay to use SAVE.
Given

this

process,

Commissioner

7

Magee’s

policy

memorandum acknowledges that state and local officials
cannot begin using SAVE immediately.
No. 57-1, at 2-3).

Magee Memo (Doc.

At the same time, this memorandum

says nothing about how any state or local subdivision
will obtain DHS verification under 8 U.S.C. § 1373(c).
Regardless, where DHS does not verify the lawful
presence of an alien, the new policy recognizes that
Commissioner Magee’s old standards, listed in § 12(d) of
HB 56, are “no longer valid” and that state or county
officials “can no longer allow an alien to document his
lawful presence in the United States through the use of
documents or legible photocopies of documents.”
Memo (Doc. No. 57-1, at 2-3).

Magee

Instead, if state or local

officials are unable to verify an alien’s lawful presence
through SAVE or verification with DHS, then the officials
“should allow the alien to conduct the requested business
transaction.”

Id.

Commissioner Magee argues these policy changes, as
outlined

in

her

memorandum,

8

mean

“the

basis

of

the

temporary restraining order no longer exists” and that
the order should therefore be dissolved.
(Doc. No. 57, at 2).1

Mo. to Dissolve

The court cannot agree.

II.
As an initial matter, Commissioner Magee has failed
to point to any legal standard or Federal Rule of Civil
Procedure under which the court should find her requested
relief is warranted.
should

use

the

The plaintiffs argue that the court

standard

for

evaluating

whether

a

preliminary injunction should be modified or dissolved,
namely,

whether

changed

circumstances

order,

which

the

“may

be

movant

has

warrant

made

a

showing

discontinuation

satisfied

by

showing

of

that
the

either

significant change in factual conditions or law.”

a

11A

1. The court reads Magee’s motion to dissolve as
applying to only whether the plaintiffs can demonstrate
a substantial likelihood of success on the merits of
their claim, not as challenging any of the other factors
that are necessary to obtain temporary equitable relief.
Accordingly, Magee’s motion in no way questions the
determination made in court’s prior order regarding these
factors, Magee, 2011 WL 5878363, at * 3.
9

Wright et al., Federal Practice and Procedure § 2961 (2d
ed. 1995).

This standard echos the test described in

Rufo v. Inmates of Suffolk County Jail, where the Supreme
Court explained that a party seeking modification of a
consent

decree

“bears

the

burden

of

establishing

a

significant change in circumstances warrants revision of
the decree” and that this burden may be satisfied “by
showing either a significant change in factual conditions
or in law.”

502 U.S. 367, 383-84 (1992).

party

this

meets

standard,

the

court

If the moving
then

considers

“whether the proposed modification is suitably tailored
to the changed circumstance.”

Id. 391.

The Eleventh Circuit Court of Appeals has applied
Rufo to the context of permanent injunctions, see Riccard
v. Prudential Ins. Co., 307 F.3d 1277, 1298 (11th Cir.
2002), and other courts have relied on the same standard
in the preliminary-injunction context as well.

E.g.,

Concilio de Salud Integral de Loiza, Inc. v. PerezPerdomo,

551

F.3d

10,

16

10

(1st

Cir.

2008);

Sprint

Communications

Co. v. CAT Communications Int’l, Inc.,

335 F.3d 235, 242 (3d Cir. 2003).
Given this analogous treatment of requests to modify
or dissolve various forms of equitable relief and because
Commissioner
changed

Magee’s

argument

circumstances,

analysis here.

this

is

essentially

court

employs

one

the

of

Rufo

Indeed, the rationale behind looking to

changed circumstances is especially applicable in this
case.

“The need for changed circumstances prevents an

enjoined party from constantly challenging the imposition
of a[n] ... injunction,” Sprint, 335 F.3d at 242, and a
court should redraft or vacate its order only when doing
so is necessary “to insure that the decree accomplishes
its intended result.”

Wright, supra, § 2961 (emphasis

added).
The

intended

result

of

the

court’s

temporary

restraining order was to ensure that, statewide, § 30 of
HB 56 would in no way be applied to individuals seeking
to renew their manufactured-home decals under § 40-12255.

While the memorandum indicates that, under the new
11

policy,

the

impermissible

“state-created

criteria”

identified in the prior order can no longer be used,
nothing about that policy change, by itself and in the
abstract, indicates that state and local officials have
stopped engaging in conduct preempted by federal law.
Put differently, nothing in the memorandum necessarily
and

conclusively

demonstrates

that

there

has

been

a

change in the actual circumstances of how § 30 of HB 56
will be and has been applied.
In fact, and contrary to the new policy as expressed
in

the

memorandum,

the

plaintiffs

have

introduced

evidence indicating that, in practice, nothing on the
ground has changed, and particularly at the county level:
On November 28 and 29, 2011, the first two business days
following the court’s order, plaintiffs’ counsel say that
they received numerous calls from individuals who were
not permitted to pay registration fees because they could
not provide sufficient proof of their immigration status.
See Tumlin Decl. (Doc. No. 67-4, at 2); Brooke Decl.
(Doc. No. 67-1, at 2).

These reports were from five
12

counties in the state.

A woman in Gadsden (Etowah

County, Alabama), for example, was “told nothing had
changed” in light of the court’s order, “and that she had
to produce a driver’s license.”
67-1, at 2).

Meanwhile,

Brooke Decl. (Doc. No.

in Birmingham and Bessemer

(both in Jefferson County) two individuals were told,
respectively, that they needed a valid driver’s license
and

that

they

“needed

to

provide

proof

of

lawful

immigration status” to register their manufactured homes.
Tumlin Decl. (Doc. No. 67-4, at 3).

In similar fashion,

an employee of plaintiff Central Alabama Fair Housing
Center

called

the

Houston

County

Probate

office

on

November 28, and was told that “a driver’s license is
still required.”

Singh Decl. (Doc. No. 67-3, at 2).2

2. In addition, before the court is the plaintiffs’
motion, filed yesterday, to enforce the temporary
restraining order. This motion, as supported by
declarations, alleges that more individuals, including at
least one in a sixth county, have been denied the ability
to register their manufactured homes on the basis that
they failed to provide evidence of citizenship or lawful
residence. See id. at 5-7; Brooke Decl. (Doc. No. 70-1).
13

Additional record evidence, the plaintiffs argue,
suggests that compliance has not been confirmed:

When

the plaintiffs’ attorneys notified Commissioner Magee’s
counsel that several individuals across five counties
were still being denied the ability to register their
manufactured homes because they could not demonstrate
lawful immigration status, defense counsel replied that
the new policy memorandum had been sent to these offices.
Brooke Decl. (Doc. No. 67-1, at 3).

When asked about how

the memorandum was sent and to whom it was sent and, most
important, about whether there was any way to confirm
that

these

offices

were

now

counsel failed to confirm.

in

compliance,

defense

Instead, he replied: “I am

representing to you that the referenced offices ... have
received Commissioner Magee’s ... Memo.

If you would

notify me of an office unaware of the Memo, I would
appreciate it.”

Id. at 6 (emphasis added).

The problem, of course, is that awareness is not
compliance.

The

fact

that

Commissioner

Magee’s

memorandum expressed a new policy for enforcement of HB
14

56 does not necessarily reflect a change in practice. As
the adage goes, a change in theory does not always mean
a change in practice.
evidence

of

alleged

Confronted with the plaintiffs’
noncompliance,

the

court

cannot

conclude at this time on the current record, without a
hearing, that circumstances have changed in a manner to
warrant

immediate

dissolution

of

the

temporary

restraining order.3

3. The court makes no finding, at this time, that
the plaintiffs’ noncompliance allegation is true. The
denial of Commissioner Magee’s motion for immediate
dissolution is therefore without prejudice to her right
to challenge the evidence submitted by the plaintiffs.
To warrant immediate dissolution of a temporary
restraining order, without a hearing, based on changes
circumstances, a movant would have to come forward with
undisputable evidence of full compliance in all material
aspects or ask for a hearing on the disputed evidence,
although, as indicated later in the instant opinion and
order, Magee’s motion is due to be denied on other
grounds as well.
Indeed, with their motion to enforce, see supra note
2, the plaintiffs also contend that there is a change in
circumstances
but
the
change
warrants
additional
injunctive relief.
15

III.
In any event, even assuming that there has been a
change

in

practice

as

contemplated

in

Commissioner

Magee’s memorandum, the court is not convinced that this
new policy achieves the intended result of the court’s
prior order.
that

the

To be perfectly clear, the court intends

defendants

apply

§

40-12-255

without

any

modification by HB 56 or reference to citizenship status;
the question of citizenship or lawful immigration status
is completely off-the-table.

By its text, § 40-12-255

requires only that:
“The owner of the manufactured home
shall furnish to the registration
official the make, model, year, length,
width, number of transportable modules,
and serial number of the manufactured
homes and the registration official
furnish
a
receipt
to
the
shall
manufactured home owner containing the
above referenced information.”
1975 Ala. Code. § 40-12-255(a) (emphasis added).
Even under the new policy, however, the State appears
to burden manufactured home registration in ways not
contemplated by § 40-12-255, which could, in practical
16

effect, deter individuals from attempting to register
their manufactured homes.

As the memorandum concedes,

there is no practical way any state agency could have
registered for SAVE over the weekend, and the memorandum
does nothing to address how verification from DHS works
or how it can be obtained.

Therefore, if an alien lacks

documentation and the agency cannot lawfully verify his
citizenship

status,

then,

under

the

Commissioner’s

proposed procedures, that alien will have gone through a
three-step process related to immigration status all for
naught, for regardless of the outcome of this questioning
he must be given the registration papers.

The purpose of

the court’s prior order was not to empower state and
local

officials

to

erect

a

hurdle

of

ultimately

inconsequential questioning and possible harassment for
those attempting to reside in their manufactured homes
without violating § 40-12-255.
The fact that the new policy still allows state and
local

government

units

to

announce

that

immigration

status will be verified by either SAVE or § 1373(c), but
17

acknowledges that this verification will not actually
occur is akin to a fraud.

On one hand, state and local

actors make public--for example, through probate office
websites--their intention to condition manufactured home
registration

upon

verification

of

an

alien’s

lawful

residence, but, on the other hand, simultaneously and
quietly recognize that such verification, and the denial
of a manufactured home registration, cannot actually
occur.

Cf. Singh Decl. (Doc. No. 67-3, at 5) (depicting

county website indicating that “proof of U.S. Citizenship
is required when renewing all manufactured homes”); Crook
Decl. (Do. No. 67-2, at 5,9) (same).

Importantly, the

ultimately hollow requirement of verification is not
insubstantial: it comes backed, as per the text of HB 56,
with the threat of felony criminal sanction should anyone
dare

to

attempt

to

register

their

knowing they lack verification.

manufactured

home

Just as a wooden owl

perched atop the bridge of a fishing boat wards off
seagulls with its menacing but ultimately harmless glare,
the Commissioner’s new policy appears designed to keep
18

undocumented immigrants from even attempting to register
their mobile homes, even though their immigration status
can have no bearing on that transaction.

In short, the

court is not convinced that the new policy outlined in
Commissioner

Magee’s

memorandum

would

not

achieve

indirectly what the court’s order directly prohibits.

IV.
Even

without

the

foregoing,

the

court

remains

convinced that dissolving the temporary restraining order
would be inappropriate.

As noted in the prior order, the

plaintiffs have presented several reasons why § 30 of HB
56 as applied to § 40-12-255 should be enjoined.
they

have

presented

several

independent

Indeed,

grounds

for

finding preemption as well, none of which turn upon
whether

“state-created

criteria”

are

being

used

to

enforce § 30 of HB 56.
The court finds that the plaintiffs are substantially
likely to prevail on their claim that § 30 of HB 56 is
preempted as applied to Alabama’s manufactured homes
19

statute.

State law is “naturally preempted to the extent

of any conflict with a federal statute,”

Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 372 (2000), which
can occur when a state law frustrates “the accomplishment
of a federal objective.”

Geier v. Am. Honda Motor Co.,

529 U.S. 861, 873 (2000).

Here, that federal “objective”

is

found

in

the

Immigration

and

Nationalization

Act

(INA), 8 U.S.C. § 1101 et seq., a “comprehensive federal
statutory

scheme

for

regulation

of

immigration

and

naturalization” that sets “the terms and conditions of
admission to the country and subsequent treatment of
aliens lawfully in the country.”

Chamber of Commerce v.

Whiting, 131 S. Ct. 1968, 1973 (2011) (internal quotes
omitted).
The INA establishes a number of classifications for
aliens who have entered the United States (for example,
visitors and other non-immigrants, immigrants who plan on
staying permanently, or those seeking refugee or asylum)
and each classification has its own set of statutory
requirements for determining the length, conditions, and
20

terms of an alien’s stay.

At the heart of this scheme is

enforcement, which rests squarely within the discretion
of the executive branch of the federal government, and
often times the Attorney General.

See, e.g.,

8 U.S.C.

§ 1229b(a) (empowering the Attorney General to withhold
removal); 8 U.S.C. § 1229b(b)(2) (providing discretion to
withhold removal for victims of domestic abuse).

But,

even with this discretion, the federal determination
about whether aliens must be deported or the conditions
under which they may remain is incomplete; the executive
must provide a hearing before an immigration law judge to
remove a person from the United States or when it seeks
to determine whether an individual deserves some other
form of relief.

See, e.g., 8 U.S.C. § 1254a (barring

deportation of those with “temporary protected status”);
8 U.S.C. § 1255(a) (setting standards for adjustment of
status

to

permanent

residency).

In

fact,

the

INA

permits, and due process may require, judicial review of
deportation decisions.

8 U.S.C. § 1229a; Alhuay v. U.S.

Atty Gen., ___ F.3d___, 2011 WL 5061386, at *10 (11th
21

Cir. Oct. 26, 2011).

Thus, given the INA, the executive

has wide latitude to allow aliens to remain in the
country as a matter of discretion, and may be prevented
from deporting certain individuals all-together.
Applied to § 40-12-255, § 30 of HB 56 stands as an
obstacle to the INA’s balance of discretion and process
by making it difficult for those who have been permitted
to remain in the country to live in their homes.

While

Congress has created a number of statutes sanctioning
various forms of unlawful entry into the United States,
see, e.g., 8 U.S.C. §§ 1323-28, and for the “harboring”
of an alien, 8 U.S.C. § 1324, Congress never criminalized
an alien’s attempt to lawfully reside in his home; nor
has Congress permitted States to regulate the residence
of

aliens.

executive.
additional

Instead,

enforcement

is

left

to

the

Any state law, like HB56, that “imposes
criminal

laws

on

top

of

a

comprehensive

federal scheme that includes no ... carve out for state
regulation” is likely preempted.

22

Ga. Latino Alliance for

Human Rights v. Deal, 2011 WL 2520752, at *14 (N.D. Ga.
June 27, 2011) (Thrash, J.).
In fact, every court that has considered a locality’s
attempt to regulate immigration by limiting access to
housing for individuals who cannot prove citizenship or
lawful residence has been enjoined as preempted.

See,

e.g., Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.
2010), vacated and remanded on other grounds, 131 S. Ct.
2958 (2011); Villas at Parkside Partners v. City of
Farmers Branch, 701 F. Supp. 2d 835 (N.D. Tex. 2010)
(Boyle, J.); Garrett v. City of Escondido, 465 F. Supp.
2d 1043 (S.D. Cal. 2006) (Houston, J.).
Perhaps most convincingly, the other provisions of HB
56 that, on their face, apply to housing were enjoined as
likely preempted in United States v. Alabama, 2011 WL
4469941, at *41-45 (Sept. 28, 2011) (Blackburn, C.J.).
There, it was clear that § 13 of HB 56--which prohibits
anyone from entering into rental agreements with aliens
without verifying their lawful residence--applied to the
housing context, but the court did not believe, and
23

expressly declined to find, that § 30 had the broad reach
it has been given.

Id. at 59-60 & n.25.

It is now clear

that § 30 of HB 56 reaches § 40-12-255 and thereby
conditions lawful residence in a manufactured home upon
verification of immigration status.

In light of this

consistent body of precedent, the court finds that the
plaintiffs are substantially likely to prevail on their
preemption claim.
***
Accordingly,

it

is

ORDERED

that

defendant

Julie

Magee’s motion to dissolve the temporary restraining
order (Doc. No. 57) is denied.
DONE, this the 1st day of December, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE