United States of America v. Arizona, State of, et al

Filing 30

MOTION and Memorandum for Request to File Brief of Amici Curiae by Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia. (Casey, Timothy) Modified on 7/16/2010 CORRECTED: filers (REW).

United States of America v. Arizona, State of, et al

Doc. 30

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Timothy J. Casey (#013492) SCHMITT, SCHNECK, SMYTH & HERROD, P.C. 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540 Telephone: [phone] Facsimile: [phone] [e-mail] Attorney No. 013492 Special Assistant Attorney General for Michigan For Amici Curiae Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia Michael A. Cox Attorney General of the State of Michigan B. Eric Restuccia (MI Bar No. 49550) Solicitor General Mark Sands (MI Bar No. 67801) Assistant Attorney General P.O. Box 30212, Lansing, MI 48909 Telephone: [phone] [e-mail] [e-mail] UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA The United States of America, Plaintiff, No. CV-10-1413-PHX-SRB MOTION AND MEMORANDUM FOR REQUEST TO FILE BRIEF OF AMICI CURIAE MICHIGAN, FLORIDA, ALABAMA, NEBRASKA, NORTHERN MARIANA ISLANDS, PENNSYLVANIA, SOUTH CAROLINA, SOUTH DAKOTA, TEXAS, AND VIRGINIA

20 v. 21 The State of Arizona; and Janice K. Brewer, 22 Governor of the State of Arizona, in her Official Capacity, 23 Defendants. 24 25 26 27 28

Pursuant to Fed. R. Civ. P. 7 and L.R. 7.2, Michigan respectfully moves for leave to file the concurrently-lodged brief as amici curiae on behalf of itself and Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia in 1
Dockets.Justia.com

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opposition to Plaintiff's Motion for Preliminary Injunction (dkt. 6). The amici, as co-participants with Arizona in the concurrent enforcement scheme envisioned by Congress, seek to offer their expertise and perspective to this Court considering this important question of State authority under the immigration law. Specifically, the amici wish to address the question of whether they will be permitted to provide assistance to the Federal government in enforcing Federal immigration law ­ and in particular whether the amici will continue to have the authority to arrest a person for violating Federal immigration law. This Court has full discretion in determining whether to grant amicus status to ILWU. Hoptowit v. Ray, 682 F.2d 1237, 1261 (9th Cir. 1982); Silver v. Babbitt, 166 F.R.D. 418, 434 (D. Ariz. 1994). Like Arizona, the amici are voluntary participants in the Congressional scheme to provide for concurrent enforcement of Federal immigration law. The primary tool of the States to assist the Federal government in enforcing Federal immigration law is the power of State lawenforcement officers to arrest persons where there is probable cause that an individual is unlawfully present in the United States, Gonzalez v. Peoria, 722 F.2d 468, 477 (9th Cir. 1983), or to investigate an individual's immigration status where there is reasonable suspicion that the person is in the country unlawfully. See United States v. Salinas-Calderon, 728 F.2d 1298, (10th Cir. 1984). In fact, the Department of Justice itself in a 2002 memorandum expressed the view that States have "inherent power" to arrest aliens for immigration violations. If the United States's preemption argument were to prevail, and this Court were to conclude that Arizona could not mandate that its law enforcement officers investigate potential violations of Federal immigration law when there is "reasonable suspicion" that the laws have been violated, the ability of the amici to assist in the enforcement of immigration law would be compromised. In the place of the cooperative-enforcement scheme established by Congress, the

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position of the United States would allow the executive branch on its own authority to selectively enforce the laws enacted by Congress. Because the amici derive their authority to concurrently enforce Federal immigration laws for sources other than the Arizona law at issue, this brief will serve the important role of "bring[ing] relevant matter[s]" to the attention of the Court that have not already been brought to its attention by the parties. See Funbus Systems, Inc. v. Cal. Pub. Util. Comm'n, 801 F.2d 1120, 1124-25 (9th Cir. 1986); see also Neonatology Assocs. v. Commissioner, 293 F.3d 128, 132-33 (3d Cir. 2002) (Alito, J.) (discussing standards for acceptance of amicus briefs). Accordingly, this Court should grant the motion of the amici to participate as amici curiae. CONCLUSION WHEREFORE, Michigan, on behalf of itself and Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia seek leave to provide this Court with the prospective harm that could result to their ability to assist in enforcement of immigration law if Plaintiff's Motion for Preliminary Injunction were to be granted. Respectfully submitted, SCHMITT, SCHNECK, SMYTH & HERROD, P.C. s/Timothy J. Casey Timothy J. Casey #013492 1221 East Osborn Road, Suite 105 Phoenix, AZ 85014-5540 Telephone: [phone] Facsimile: [phone] [e-mail] Special Assistant Attorney General for Michigan For Amici Curiae Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia Dated: July 14, 2010 3 Michael A. Cox Attorney General of the State of Michigan B. Eric Restuccia (MI Bar No. 49550) Solicitor General Mark Sands (MI Bar No. 67801) Assistant Attorney General P.O. Box 30212, Lansing, MI 48909 Telephone: [phone] [e-mail] [e-mail]

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CERTIFICATE OF SERVICE I hereby certify that on July 14, 2010, I electronically transmitted the attached document (Motion and Memorandum) to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Plaintiff United States of America represented by Joshua Wilkenfeld Email: [e-mail] Varu Chilakamarri Email: [e-mail] Defendant State of Arizona and Janice K Brewer Governor of the State of Arizona represented by John J Bouma Email: [e-mail] Joseph G Adams Email: [e-mail] Joseph Andrew Kanefield Email: [e-mail] Robert Arthur Henry Email: [e-mail] Amicus Center on the Administration of Criminal Law represented by Anne Milgram Email: [e-mail] Anthony S Barkow, Email: [e-mail] Ellen London, Email: [e-mail] Jessica Alexandra Murzyn, Email: [e-mail] Ricardo Solano, Jr, Email: [e-mail] By: SCHMITT, SCHNECK, SMYTH & HERROD, P.C. s/Timothy J. Casey Timothy J. Casey #013492 [e-mail] Special Assistant Attorney General for Michigan For Amici Curiae Michigan, Florida, Alabama, Nebraska, Northern Mariana Islands, Pennsylvania, South Carolina, South Dakota, Texas, and Virginia In addition a COURTESY COPY was mailed to: HONORABLE SUSAN R. BOLTON United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 522 401 West Washington Street, SPC 50, Phoenix, AZ 85003-2153

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