Escobar v. Brewer et al

Filing 72

MOTION for Preliminary Injunction by Tucson, City of. (REW)

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Escobar v. Brewer et al Doc. 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MICHAEL G. RANKIN City Attorney Michael W.L. McCrory Principal Assistant City Attorney P.O. Box 27210 Tucson, AZ 85726-7210 Telephone: (520) 791-4221 State Bar 3899 PCC No. 37268 Attorneys for City of Tucson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MARTIN H. ESCOBAR, Plaintiff, vs. JAN BREWER, Governor of the State of Arizona, in her Official and Individual Capacity; THE CITY OF TUCSON, a municipal corporation, and BARBARA LaWALL, County Attorney, Pima County, ) ) ) ) ) ) ) ) ) ) ) ) ) ) )_ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-249 TUC DCB MOTION FOR PRELIMINARY INJUNCTION ____________________________ THE CITY OF TUCSON, a municipal corporation, Cross-plaintiff, vs. THE STATE OF ARIZONA, a body politic; and JAN BREWER, in her capacity as Governor of the State of Arizona, Cross-defendants. Defendants. Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Defendant/Cross-plaintiff, City of Tucson ("Tucson" or the "City"), hereby {A0028677.DOC/} 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 moves for an order enjoining the defendants from enforcing in any manner Senate Bill 1070 as amended by House Bill 2161 (hereafter "SB 1070" or the "Act"). 1 Cross-plaintiff's motion is based upon the attached points and authorities, the affidavit of Laura Brynwood that has been filed with the Court (Docket No. 14) and such other and further materials as the Cross-plaintiff may present to the Court by affidavit or testimony at a hearing on the motion. Respectfully submitted this 7th day of June, 2010. MICHAEL G. RANKIN City Attorney By: /s/ Michael W.L. McCrory Michael W.L. McCrory Principal Assistant City Attorney 1 SB 1070 and HB 2162 are attached as Exhibit B to Plaintiff's Motion for Preliminary Injunction Enjoining the Enforcement of the "Support Our Law Enforcement and Safe Neighborhood Act", a.k.a. SB 1070 (hereafter "Plaintiff's Motion"), Docket No. 17(3). Cross Plaintiff joins in Plaintiff's Motion and incorporates cross references herein where appropriate. {A0028677.DOC/} 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 {A0028677.DOC/} TABLE OF CONTENTS 1. 2. A. B. C. D. 3. A. B. INTRODUCTION..................................................................................................1 THE COURT HAS JURISDICTION TO GRANT THE PRELIMINARY INJUNCTION........................................................................................................3 THE COURT HAS SUPPLEMENTAL JURISDICTION OVER THE CROSSCLAIM ..................................................................................................3 THE COURT HAS INDEPENDENT JURISDICTION OVER THE CROSSCLAIM ..................................................................................................5 SOUTH TAHOE LAKE DOES NOT DEPRIVE TUCSON OF STANDING ....7 TUCSON IS ENTITLED TO A PRELIMINARY INJUNCTION .....................10 SB 1070 IS PREEMPTED BY FEDERAL IMMIGRATION LAW.........................13 SB 1070 INFRINGES UPON THE FEDERAL GOVERNMENT'S PLENARY POWER OVER IMMIGRATION......................................................................13 SB 1070 CONFLICTS WITH FEDERAL LAW AND POLICY ......................17 i. ICE HAS ADOPTED COMPREHENSIVE FEDERAL ENFORCEMENT POLICIES .......................................................................................................18 ii. THE ACT'S MANDATE FOR FULL ENFORCEMENT OF IMMIGRATION LAWS CONFLICTS WITH FEDERAL LAW AND POLICIES ..........................22 4. 5. 6. 7. SB 1070 VIOLATES THE CONSTITUTIONAL SEPARATION OF POWERS ....27 SB 1070 UNCONSTITUTIONALLY GRANTS INDIVIDUALS THE RIGHT TO CONTROL THE POLICE POWER .....................................................................32 SB 1070 EXPRESSLY DISCRIMINATES AGAINST INTERSTATE COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE ................................................34 CONCLUSION ...................................................................................................36 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1. INTRODUCTION. The State of Arizona has enacted SB 1070 for the singular and stated purpose of implementing a state policy to force unlawful aliens to leave the State under threat of criminal prosecution on state immigration charges. In doing so, Arizona takes a political stand on how immigration should be enforced and expressly seeks to confront what it claims is a failure by the federal government to act effectively on the immigration issue. The merits of that political choice are not before this Court nor is it for this Court to decide if the immigration system is broken and what should be done to fix it. That is a matter that can solely and exclusively be decided by the legislative and executive branches of the federal government. Immigration has not been subject to state regulation since the founding of our country and is not subject to such regulation now. The drafters of SB 1070 are well aware of the constitutional prohibition on state regulation of immigration. In crafting the Act, they have sought to cover the obvious state regulation of immigration with a disingenuous patina of state criminal law concepts. But the drafters were unable to shy away from their purpose of confronting the federal government and pushing their particular political solution to a federal problem. The result is that that Act is patently unconstitutional for the following reasons: {A0028677.DOC/} 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 A. SB 1070 as a whole establishes state immigration laws and mandates enforcement of a state immigration policy. Immigration is in the sole and exclusive jurisdiction of the federal government, acting on behalf of all states and for a common foreign policy. It is not subject to individual regulation by the separate states and the Act thus violates federal supremacy in immigration. B. SB 1070 establishes state immigration crimes that duplicate, expand and contradict federal law and enforcement policy. The Act's overall purpose and effect is to indiscriminately force unlawful immigrants to leave the state. That directly conflicts with federal law and policies that require training and supervision of local law enforcement pursuing immigration violations. It further conflicts with federal priorities for the arrest and deportation of those who pose the greatest danger to the public and inhibits or prevents the federal government from carrying out that priority. State laws that conflict and inhibit the enforcement of federal laws are preempted under the supremacy clause. C. SB 1070 forces the legislature's political view that there should be full enforcement of immigration laws as defined by Arizona on the federal executive branch and local executive and judicial branches of the government. The Act deprives those branches of their constitutional authority to determine how to implement laws and what must be done to achieve justice. It thus violates the constitutional separation of powers. {A0028677.DOC/} 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 D. SB 1070 creates a private right of action to compel a particular That unconstitutionally exercise of the governmental police power. compromises the inalienable authority of the government to act on behalf of the public rather than particular individuals. E. SB 1070 expressly discriminates against the residents of other states by requiring that they travel and engage in commerce in Arizona with proof of citizenship in addition to their driver's license. Arizona residents are not required to carry such additional documentation of their immigration status. Thus the Act expressly discriminates against interstate commerce in violation of the commerce clause. For these reasons, as more fully set forth below, this Court must enjoin any enforcement of the Act. 2. THE COURT HAS JURISDICTION TO GRANT THE PRELIMINARY INJUNCTION. A. THE COURT HAS SUPPLEMENTAL JURISDICTION OVER THE CROSSCLAIM. Under this Court's supplemental jurisdiction and pursuant to Rule 13(g) of the Federal Rules of Civil Procedure, Tucson has standing to file a crossclaim against Governor Brewer and the State of Arizona. Supplemental jurisdiction encompasses earlier concepts of ancillary and pendent jurisdiction, and lets the Court decide all issues constituting a single case or controversy in one case. Ruud v. U.S. Dept. of Labor, 347 F.3d 1086, 1089 (9th Cir.,2003); United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, {A0028677.DOC/} 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 16 L.Ed.2d 218 (1966). Exercising supplemental jurisdiction prevents relitigation of the same issues in later actions. Thus, because Tucson's crossclaim falls within this Court's supplemental jurisdiction, the cross-claim does not require independent jurisdiction. Glens Falls Indem. Co. v. U.S. ex rel. and to Use of Westinghouse Elec. Supply Co., 229 F.2d 370, 373 -374 (C.A.9 1956). The cross-claim challenges SB 1070's constitutionality. This challenge requires this Court to decide legal issues about the same law that the present Plaintiff is challenging. The cross-claim raises similar issues based on the same facts as those that the Plaintiff raises in his complaint and this brief cross-references similar and supplemental arguments in the Plaintiff's brief. Both Tucson and the Plaintiff challenge the Act on the grounds that it is preempted. Both allege that Tucson police, including the Plaintiff, will be mandated to increase immigration enforcement in conflict with federal law and policies. In paragraph 72 of Plaintiff's complaint, he alleges that one section of SB 1070 will expose him to liability to lawsuits. Tucson agrees that the section will lead to lawsuits that will result in many divergent decisions. In fact, Tucson stands financially liable, since it will have to indemnify the Plaintiff, and others similarly situated, for any liability involved in enforcing SB 1070. The cross-claim raises some issues that are not in Plaintiff's complaint. Those issues include violation of the constitutional separation of powers and {A0028677.DOC/} 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the commerce clause. Those distinct issues supplement and do not conflict with the main thrust of both the Plaintiff's and Cross-plaintiff's arguments. These issues are integral to determining SB 1070's constitutionality and they form the heart of Plaintiff's case. In fact, if Tucson could not bring this cross-claim, it would not be able to fully defend itself against Plaintiff's statutory and constitutional claims and arguments. See Alberti v. Sheriff of Harris County, Tex., 937 F.2d 984 (5th Cir.,1991) (In case alleging unconstitutional jail overcrowding, County sheriff brought cross-claim in federal court against state for policies that forced it to violate plaintiff's rights.) B. THE COURT HAS INDEPENDENT JURISDICTION OVER THE CROSSCLAIM. This Court also has independent jurisdiction over Tucson's cross-claim. The City has a unique role in that it has raised issues regarding the separation of powers and prosecutorial discretion and impact of the Act's mandate for full enforcement of immigration laws on the City's legal authority to establish budgets and law enforcement priorities. These are issues that most directly impact the City itself and its ability to carry out its governmental functions. As with all cities in Arizona, Tucson is required by state law to adopt an annual budget starting July 1. Tucson has already prepared its recommended budget which includes a 3.5% cut in wages for city workers and other cut backs. That budget does not provide for any additional enforcement of If this Court does not enjoin SB 1070, the City will be immigration laws. {A0028677.DOC/} 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 harmed by the imposition of substantial new expenses for full immigration law enforcement or sued for budget policies that preclude such enforcement. 2 These are issues that have not been addressed by the individual plaintiffs who have challenged SB 1070, precisely because they are not in the forefront of the concerns of individual plaintiffs. They are in the forefront of the City's concerns which ensures they will be fully presented. It is true that, in the 1980 South Tahoe Lake case, the Ninth Circuit held that a municipal government lacks standing to sue a state in federal court for violating the Fourteenth Amendment of the United States Constitution. City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980). That decision was solely predicated on cases arising under the Fourteenth Amendment involving individual rights. Under that case, a city official likewise lacks standing to sue a state in federal court, if the city official merely seeks redress for "abstract outrage at the enactment of an unconstitutional law." 3 But Tucson's cross-claim is not a nebulous or potential Fourteenth Amendment claim. Nor are Tucson's officials suing for "abstract outrage." Among other reasons, Tucson is filing a cross-claim because Plaintiff has sued Tucson. Now that it has been sued, Tucson is bringing its own cross-claim, because SB 1070 violates the federal Constitution's Fourth Amendment, supremacy clause, and commerce clause. 2 See also the City's irreparable injuries in Sec. 5 infra. {A0028677.DOC/} 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The violations expose Tucson to financially harmful international and national criticism and boycotts. 4 More important for the cross-claim, the violations entangle it in enforcing a preempted, unconstitutional state statutory scheme. That is, to the extent that Tucson and its officials and employees must enforce SB 1070, that enforcement compels them to violate the Fourth Amendment, the commerce clause, and the supremacy clause. SB 1070 also forces Tucson to violate the state constitution's mandate to follow the federal Constitution. 5 Those violations are something that Tucson will not willingly commit. C. SOUTH TAHOE LAKE DOES NOT DEPRIVE TUCSON OF STANDING. This Court should note that some later Ninth Circuit opinions have loosely treated the 1980 South Lake Tahoe case as creating a per se rule extending to cases brought under the supremacy clause. 6 The Ninth Circuit has not, however, directly addressed whether a city may bring a cross-claim to Id. at 237. See, e.g., Bob Christie, Arizona Immigration Law Sparks Boycott, THE CHARLESTON GAZETTE [West Virginia] A-7 (May 1, 2010); Sabrina Ford, Rebecca Rosenberg, Joe Walker, Arizona Immigration Law Stirs Angry NY Protests, NEW YORK POST 22 (May 2, 2010); Kevin Johnson, Mexico Issues Travel Alert over New Arizona Immigration Law; Cautions Citizens about `Negative' Environment, USA TODAY A-5 (April 28, 2010); Stacy St. Clair, 8,000 Rally in Chicago Against New Arizona Immigration Law, CHICAGO TRIBUNE 18 (May 2, 2010); United States: Hysterical Nativism; Arizona's Immigration Law, 395 THE ECONOMIST 28 (April 24, 2010); United States: The Backlash Begins; Arizona's Immigration Crackdown, 395 THE ECONOMIST 31 (May 8, 2010). 5 Ariz. Const., Art. 2, 3 ("The Constitution of the United States is the supreme law of the land."). See also State v. Ikeda, 61 Ariz. 41, 48, 143 P.2d 880, 883 (1943) ("It is elementary that where both the Congress of the United states and a state legislative act have reference to the same subject matter, the action of the congress is controlling in case of conflict."). 6 See, e.g., Indian-Oasis Baboquivari Unified Sch. Dist. v. Kirk, 91 F.3d 1240, 1242 (9th Cir. 1996), reh'g. en banc granted, 102 F.3d 999 (9th Cir. 1996), appeal dismissed, 109 F.3d 634 (9th Cir. 1997) (en banc). But see San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) ("While there are broad dicta that a political subdivision may never sue its maker on constitutional grounds, we doubt that the rule is so broad." (citation omitted). 4 3 {A0028677.DOC/} 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 prevent violations of the constitutional separation of powers, commerce clause or to settle supplemental jurisdiction claims. After all, South Lake Tahoe did not involve a commerce clause claim or a state-constitutional claim. Thus, the Ninth Circuit has not directly addressed those issues. The point here is that no clear Ninth Circuit precedent bars a city from suing a state on a supremacy clause claim, on a commerce clause claim, or on a supplemental jurisdiction state constitutional claim. That is especially true when Tucson has a sufficient interest to merit pursuing those issues in a federal court cross-claim. 7 Just as important, the South Lake Tahoe doctrine rests in large part on the notion that a state's political subdivision cannot sue the state that created it. As the Ninth Circuit explained in the 1999 Palomar Pomerado Health System case, courts have denied standing to sue the state to political subdivisions like municipal corporations "on the ground that they have no rights against the state of which they are a creature."8 Indeed, the first question in the Palomar Pomerado Health System case was whether the health care district trying to sue the state was a political subdivision of the state and thus unable to sue the state that had created it. 9 See Thomas v. Mundell, 572 F.3d 756, 764 (9th Cir., 2009) ("In this case, Thomas and the individual plaintiffs have not alleged sufficient interest in this dispute to merit their entry into federal court."). 8 Palomar Pomerado Health System v. Belshe, 180 F.3d 1104, 1107 (9th Cir. 1999), cert. denied, 528 U.S. 1074 (2000) (citation and internal quote marks omitted). 9 Id. {A0028677.DOC/} 7 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 But Tucson is not a hapless, subservient creature unable to sue the State to protect its rights and to determine constitutional issues. In fact, under the Arizona Constitution, Tucson is a charter city--sovereign in its municipal affairs. 10 It has an independent right to sue and be sued. 11 Under Arizona law, that independent right to sue includes the right to sue the State to challenge the constitutionality of its statutes.12 That state-approved standing to challenge a state statute's constitutionality is notably absent from the South Lake Tahoe case. Moreover, the Ninth Circuit has also explained that South Lake Tahoe had found that there was no threat of any lawsuit or any reason to believe that a lawsuit was inevitable. Indeed, since many contingencies had to happen before any alleged injury occurred, "the threat of civil liability" in South Lake Tahoe "was only potential." 13 Therefore, in South Lake Tahoe, the threatened lawsuit was "too attenuated and conjectural" to provide a basis for standing. 14 Here, in contrast, there is nothing potential. The lawsuit confronting Tucson is real, on file, and moving forward. Plaintiff sued Tucson, which is asserting a ARIZ. CONST., Art. 13, 2. See also McMann v. City of Tucson, 202 Ariz. 468, 471-472, 47 P.3d 672, 675 - 676 (App 2002), review denied (Oct. 29, 2002). 11 See ARIZ. R. CIV. P. 17(d) ("Actions brought by [an] incorporated city or town shall be in its corporate name."). 12 See, e.g., City of Tucson v. Woods, 191 Ariz. 523, 525-26, 959 P.2d 394, 396-97 (App. 1997), review denied (July 17, 1998) (City had standing to sue the State to challenge the constitutionality of a statute letting certain communities within the same county as the city incorporate as towns without the city's consent.). 13 Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1988) (emphasis in original). 14 Id. {A0028677.DOC/} 10 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 responsive cross-claim. Thus, under South Lake Tahoe, independent jurisdiction exists for Tucson's cross-claim. D. TUCSON IS ENTITLED TO A PRELIMINARY INJUNCTION. "A preliminary injunction is appropriate when a plaintiff demonstrates either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor. These two options represent extremes on a single continuum: the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor." Wong v. Bush, 542 F.3d 732, 735 (9th Cir., 2008). Tucson submits that as set forth below, there is a very strong likelihood of success on the merits. SB 1070 is by stated intent and actual effect a regulation of immigration. Since that is a field exclusively left to the federal government, and since the Act will conflict with federal government enforcement and policies, it is very likely the Cross-plaintiff will succeed on the merits. Likewise with the Act's clear imposition of a specific political policy on all other branches of the government and its express discrimination against interstate commerce, it is patently unconstitutional. The pole on the other end of the continuum also favors the City. There is little impact on the State if enforcement is enjoined since the criminal conduct addressed is already subject to federal criminal sanctions. The State cannot argue that crimes will go unpunished. Indeed, the only impact of delay in enforcement during a preliminary injunction is that the State cannot increase the level of immigration law enforcement. That impact, as set forth in section 3 {A0028677.DOC/} 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 infra., will conflict with federal law and enforcement policies and thus is not a valid policy concern. The impact on Tucson, however, is substantially different. Tucson will be put in the position of implementing state laws that conflict with federal laws and forced to choose which one it will violate. Tucson's police officers, including the Plaintiff, will be faced with similar choices and will be mandated to unconstitutionally discriminate against persons from other states whose driver's licenses don't meet Arizona standards. The day the Act goes into effect, Tucson will be forced to abandon its practice of citing and releasing persons arrested for misdemeanors. In fiscal year 2009, there were 36,821 such arrests more than 100 a day.15 Tucson will have to begin verifying, through the authorized federal agencies, the immigration status of each such person. Since it is impossible for federal authorities to respond immediately to all those requests for verifications along with similar requests from every jurisdiction in the State, Tucson will have to start incarcerating such individuals. That will require increased funding at a time when the City is already experiencing employee furloughs and layoffs, including in its public safety workforce. Delays in verification of the immigration status of arrestees will almost inevitably cause some individuals to be held in custody after a release is ordered by a judge, bail is posted, or a fine is paid. That places the City in the 15 Affidavit of Laura Brynwood, Document 14. {A0028677.DOC/} 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 position of violating the individual's Fourth Amendment rights with consequent liability in addition to the increased incarceration costs. See Wyoming v. Oklahoma, 502 U.S. 437, 448-450, 112 S.Ct. 789, 797 - 798 (U.S.,1992); Buckley v. Valeo, 424 U.S. 1, 114, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)). ["[w]here the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect."] Having publicly stated its position that it does not have the budget or police resources for increased immigration enforcement, Tucson is also highly likely to be immediately subject to a private lawsuit under the Act to require the City to enforce immigration laws to the full extent permitted by federal law. That will require concurrent litigation in state court of the federal issues before this Court. Finally, aside from the legal impact of enforcement, there is also the economic impact. By increasing the requirements for proof of legal status for both tourists and business representatives from Sonora, Mexico, only about 65 miles to the south, and from New Mexico, about 130 miles by interstate highway to the east, SB 1070 has already decreased tourism and commerce between these areas and Tucson. Tucson has a "bed tax" on each night a visitor stays in a local hotel, Tucson Code 19-66, et. seq. The City also has a {A0028677.DOC/} 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 sales tax that will likewise be reduced by the loss of tourism and commercial business. These sources of revenue will be seriously diminished if SB 1070 is allowed to go into effect, increasing the already dire budget problems faced by the City. The likelihood of success, balance of hardship, and irreparable injury to the City all favor the granting of a preliminary injunction. 3. SB 1070 IS PREEMPTED BY FEDERAL IMMIGRATION LAW. A. SB 1070 INFRINGES UPON THE FEDERAL GOVERNMENT'S PLENARY POWER OVER IMMIGRATION. In adopting Senate Bill ("SB") 1070 (the "Act"), the State of Arizona has stated that its intent is to regulate which immigrants are allowed to stay in the State by forcing the attrition of immigrants it determines to be unlawfully present through enforcement of new state criminal codes. SB 1070, 1. The Act creates new state criminal immigration offenses such as failing to comply with immigration registration requirements or committing offenses that are removable under immigration law. The new statutory sections, while minimally cloaked in a chimera of state law, implement the stated purpose by compelling local law enforcement agencies to enforce immigration law to the fullest extent permitted by federal law. The Act then provides any state resident with the legal tool to follow up and make sure immigration law is enforced to the maximum extent. The Act was adopted with a public record that it was meant {A0028677.DOC/} 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 to be the "toughest immigration law" in the country and was meant to do what its supporters say the federal government is not doing. 16 In doing so, the State adopted an immigration law and trespassed on the exclusive plenary power of the federal government to control immigration. It has long been recognized that the federal government has exclusive jurisdiction to regulate immigration. Chy Lung v. Freeman, 92 U.S. 275 (1875); Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 11 (1915) ("The authority to control immigration-to admit or exclude aliens is vested solely in the Federal government."); Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399 (1941), DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976). 17 This federal supremacy is premised on the fact that regulation of immigration and individual immigrants inherently involves issues of foreign policy which are exclusively federal. As stated in Hines: "The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties. `For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference. As Mr. Justice Miller well observed of a California statute burdening immigration: `If (the United States) should get into a difficulty which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union?'" 16 17 See also Plaintiff's Motion, pg. 8-9, fn 22, pg. 29, Dkt. No. 17 See also Plaintiff's Motion, pg. 12, Dkt No. 17. {A0028677.DOC/} 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [footnotes and citations omitted] 402. U.S. at 63-64, S.Ct. at While SB 1070 focuses on the exclusion of immigrants who are unlawfully present or subject to removal procedures, that does not diminish the impact on federal sovereignty. SB 1070 has already led to a controversy in the address to Congress by the President of Mexico, as well as travel advisories to foreign citizens from Mexico and other countries. It has created substantial opposition in the neighboring state of Sonora, Mexico, which has impacted foreign affairs and diminished tourism and business injuring Tucson's economy. 18 Contrary to the new Arizona policy, the federal immigration policy has not sought to target removal of all unlawful aliens since the early 1950's. 19 Over the past decades, the Congress through its budget authority and the executive branch through enforcement policies have focused limited resources on identifying the aliens who pose a danger to the community and not on mass deportation. There are an estimated 11.6 million undocumented immigrants currently in the country. 20 That is essentially the same estimate made by the Commissioner of the I.N.S. in 1974 and cited by the Supreme Court in U.S. v. Brignoni-Ponce, 422 U.S. 873, 879, 95 S.Ct. 2574, 2579 (U.S., 1975). The Governor of Sonora canceled the June meeting of the Arizona-Mexico Commission which is held to bring business and political leaders together and foster cross border trade and relations. Arizona Daily Star, Apr. 27, 2010, available at 44d8bc2e523d-11df-a9b9-001cc4c03286.html. 19 See Plaintiff's Motion, fn 22, pg. 29, Dkt. No. 17. 20 U.S. Dept. of Homeland Security, Estimates of the Unauthorized Immigrant Population Residing in the United States, Jan. 2005, available at Ill PE 2005.pdf. {A0028677.DOC/} 18 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 21 22 Both Republican and Democratic presidents have rejected mass deportation of undocumented aliens. On December 21, 2000, President Clinton signed The Legal Immigration and Family Equity Act of 2000 ("LIFE Act") into law. 21 That allowed persons who entered without inspection or otherwise violated certain immigration rules to adjust their status upon payment of a penalty. In 2006, President Bush stated that mass deportations were unrealistic. 22 Currently, President Obama supports a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens. 23 There are international repercussions as well. A major shift in immigration policy forcing a substantial number of Mexican nationals to return home can undermine the political and economic stability of Mexico. The money sent by Mexican nationals working in the United States, "remittances", is Mexico's largest source of dollars after oil exports. 24 cannot ignore these issues even if Arizona does. It is not the role of the State to legislate on immigration matters, Hines, supra., DeCanas, supra. Nor can a single state require that the federal The United States government enforce immigration laws in a particular way. Texas v. United Pub. L. 106-554, December 21, 2000, 114 Stat 2763. George W. Bush, Immigration Reform: Address in Irvine, California, Apr. 24, 2006. 23 24 Remittances drop from $26 to 25 billion, are second highest source of dollars, Jan. 28, 2009, Wall Street Journal, available at 16 {A0028677.DOC/} 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 States, 106 F.3d 661 (5th Cir., 1997); Chiles v. United States, 69 F.3d 1094 (11th Cir., 1995). By enacting SB 1070, Arizona has sought to take control of the immigration policy of the country regardless of the will of 49 other states or the established federal process for determining federal national policy. In doing so, it has violated the plenary power that has resided with the federal government since the inception of our country. B. SB 1070 CONFLICTS WITH FEDERAL LAW AND POLICY. SB 1070 does not simply tread into a field that is the exclusive province of the federal government, it also creates state laws that directly conflict with federal laws and enforcement policies. Federal immigration enforcement over the last two decades has evolved into a comprehensive set of programs to coordinate all aspects of enforcement by local agencies. immigration, the Federal laws regulate the terms and conditions for entry of immigrants, transportation, harboring, and employment of unlawful immigrants, cooperation with state and local agencies and numerous other areas in extensive detail. Those laws are supplemented with enforcement policies of the Immigration and Custom Enforcement ("ICE") agency of the Department of Justice. The federal government has occupied the field of immigration regulation and thus any state law must yield to the federal law. Crosby v. National Foreign Trade Council, 530 U.S. 363, 372{A0028677.DOC/} 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 374, 120 S.Ct. 2288, 2293 - 2294 (2000); U.S. v. Locke, 529 U.S. 89, 108-109, 120 S.Ct. 1135, 1147 - 1148 (U.S., 2000). SB 1070 conflicts with the implementation of these laws and polices. Laws which conflict with federal laws are likewise preempted. Id. The cases involving field preemption and conflict preemption often overlap. As summarized in Crosby, where, as here, a law creates circumstances where Plaintiff and Cross-plaintiff cannot comply with the provisions of both state and federal law or where, in doing so, the parties will frustrate the objective of federal law, the state law is preempted. 25 i. ICE HAS ADOPTED COMPREHENSIVE ENFORCEMENT POLICIES. FEDERAL Federal immigration policy emphasizes two fundamental policies the necessity of prioritizing enforcement of the law against those who pose the greatest danger to the public and the necessity of protecting civil rights and civil liberties. To accomplish these policies, there are comprehensive programs for cooperation with local law enforcement. These programs include delegation of legal authority to local officers subject to federal training and supervision to ensure that authority is properly implemented. The Office of State and Local Coordination for ICE provides fourteen distinct options under its Agreements of Cooperation in Communities to Enhance Safety and Security ("ACCESS") program. 26 Under ACCESS, ICE 25 26 See also Plaintiff's Motion, pg. 13, Dkt No. 17. The listing of the programs is available at {A0028677.DOC/} 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 agents meet with communities requesting assistance to assess local needs and draft appropriate plans. The programs include programs such as asset forfeiture/equitable sharing, Criminal Alien Program, Fugitive Operation Team, Operation Community Shield and Secure Communities. These various ICE/ACCESS programs provide a variety of options that allow local law enforcement to coordinate its activities with federal agents in conformance with federal policies. These programs also carry out the fundamental ICE policy of prioritizing its enforcement to attack those aliens who pose the greatest danger to the public and local communities rather than indiscriminate enforcement against unlawful aliens. Thus Operation Community Shield targets violent transnational street gangs and Secure Communities is designed to prioritize actions on those posing the greatest threat to public safety. One of the programs under ACCESS is for the 287(g) agreements. These agreements were authorized by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIR") of 1996 as amendments to section 287 of the Immigration and Nationality Act ("INA") 27 . Under 287(g) agreements, local "officers are authorized to question aliens as to their immigration status and removability, serve warrants for immigration violations, and issue immigration detainers for state and local detention facilities to hold aliens for a short time after completing their sentence." Department of 27 Pub. L. 104-208, Sec. 133, Sept. 30, 1996, now codified as 8 U.S.C. 1357(g). {A0028677.DOC/} 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Homeland Security, Office of Inspector General, The Performance of 287(g) Agreements, OIG-10-63 ["OIG Report], pg. 3. 28 These agreements provide the federal government's primary process for delegation of immigration enforcement authority to local law enforcement. By statute, these agreements must be in writing and must include substantial training of the local officers, a specification of duties and supervision by federal officials. The agreements require local agencies to adhere to federal law in their immigration enforcement actions, including the protection of civil rights and civil liberties. 8 U.S.C.A. 1357(g). 29 The effectiveness of the 287g agreements was reviewed for Congress by the General Accounting Office ("GAO") in 2009. 30 The report found that better controls were necessary for the program. GAO determined that although ICE had stated that the objective of the program was to address serious crime, four of the 29 agencies "used 287(g) authority to process individuals for minor crimes, such as speeding, contrary to the objective of the program." (Id, pg. 1) GAO found that of the 43,000 aliens apprehended in the agencies it studied, ICE detained only about 34,000 over 20% of those apprehended by local law enforcement were not detained. Id., pg. 1. Of those who were detained, 5,000 (15%) were either given humanitarian releases, referred to a federal or state prison, or released due to the minor nature of the 28 29 The OIG Report is in Plaintiff's Motion, Exhibit J, Dkt. No. 17 (11). A copy of the model 287(g) agreement is in Plaintiff's Motion, Exhibit I, Dkt 17 (10). 30 GAO-09-109, available at {A0028677.DOC/} 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 offense. The report states that "if all the participating agencies sought assistance to remove aliens for such minor offenses [such as carrying an open container of alcohol], ICE would not have detention space to detain all of the aliens referred to them." Id., pg. 4. The GAO report addresses another critical issue for enforcement, namely the potential for abuse, and found that "over half of the 29 agencies GAO contacted reported concerns from community members that use of the program authority would lead to racial profiling and intimidation by law enforcement officers." Id. The GAO report, which was followed by the OIG Report in March, 2010. The Report states that the 287(g) agreements were able to increase immigration enforcement and that in delegating immigration enforcement to local agencies, ICE "must ensure that its 287(g) efforts achieve a balance among immigration enforcement, local public safety priorities, and civil liberties." OIG Report, pg. 7. The OIG Report states that the purpose of the agreements is "to identify and process for removal criminal aliens who pose a threat to public safety or a danger to the community." Id., pg. 8. But the OIG Report found that only 9% of the aliens apprehended by local agencies were in the top priority classification. "These results do not show that 287(g) resources have been focused on aliens who pose the greatest risk to the public." Id., pg. 9. {A0028677.DOC/} 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 31 "Since the audit was conducted, ICE has fundamentally reformed the 287(g) program, strengthening public safety and ensuring consistency in immigration enforcement across the country by prioritizing the arrest and detention of criminal aliens - fulfilling many of the report's recommendations." 31 ii. THE ACT'S MANDATE FOR FULL ENFORCEMENT OF IMMIGRATION LAWS CONFLICTS WITH FEDERAL LAW AND POLICIES. SB 1070 does exactly the opposite of what ICE has been trying to achieve in federal enforcement. It promotes the indiscriminate apprehension of unlawful aliens in order to overwhelm federal facilities and force a political change in enforcement. It enacts state laws criminalizing immigration status rather than adhering to federal laws and creates laws that conflict with federal laws. It provides local officers with legal authority but without adequate training and without any federal supervision. It allows Arizona local agencies to entirely forgo the 287(g) agreement process and independently enforce immigration law, thereby destroying any federal efforts to obtain consistent and prioritized enforcement. Section 2 of SB 1070 enacted A.R.S. 11-1051 which created two new mandates for Arizona law enforcement the investigation of any suspected unlawful alien "where practicable" and the continued detention of Updated Facts on ICE 287(g) Programs, April 12, 2010, available at factsheets/section287_g-reform.htm, and are attached to Plaintiff's Motion, Exhibits K,O, Dkt. 17 (12, {A0028677.DOC/} 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 any person who is arrested until his immigration status is determined by federal officials. The mandate to investigate any suspected unlawful alien creates the obligation both to question and pursue the matter and, if it turns out the person is an unlawful alien, to arrest. This is clearly the intent of the Act as stated in Section 1 "to deter and discourage the unlawful entry and presence of aliens . . ." This is buttressed by the Act's requirement that immigration law be enforced to the full extent permitted by federal law, which can be enforced by a private lawsuit by any "legal resident" of the state. Any officer, whether the Plaintiff, other Tucson police officers or other local officers, will be compelled to pursue immigration enforcement unless the officer can be sure there are circumstances that clearly allow an exception as impracticable or necessary to further an investigation. This obligation applies in all cases, whether a violent felony involving danger to the public or a misdemeanor such as a college kid drinking alcohol, someone speeding or someone involved in a minor fight. The Act's mandate is to pursue anyone who may be an illegal alien regardless of the overall danger to the community. enforcement priorities and policies. SB 1070 provides new authority for local officers to not only arrest, but to transfer to a federal facility. 16). {A0028677.DOC/} That is directly contrary to federal The obvious purpose of that 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 provision is to dictate to the federal government who will be detained and processed by ICE. The equally obvious result will be exactly what GAO warned ICE will not have adequate detention space for all of the aliens referred to it. Section 11-1051(B) further states that any person who is arrested must have his immigration status verified by federal officials before his release. This provision applies regardless of whether there is any basis for suspicion that a person is an alien or in the country unlawfully. Read in the context of the intent of the Act and its other provisions, this is plainly directed at immigration enforcement within a targeted population - persons who are arrested. This contravenes established Fourth Amendment law and further intrudes upon and conflicts with federal enforcement policies. In establishing this target group, the drafters overlooked or ignored the fact that many people are technically arrested on misdemeanors and then released at the time with a citation to appear in court. This process of cite and release is authorized by A.R.S. 13-3903. The City of Tucson used this procedure to cite and release 36,821 persons arrested for misdemeanors during fiscal year 2009. Affidavit of Laura Brynwood, Docket No. 14. This is more than half of the total number of individuals identified for removal by ICE by all 287(g) officers throughout the {A0028677.DOC/} 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 country in 2009. 32 ICE simply cannot manage an increase that large from one city, let alone every jurisdiction in the State. The City also faces situations where persons who are arrested are then ordered released by a court prior to the federal verification of their immigration status. This requires that the City detain the person without any reasonable suspicion, probable cause or other legal basis to question their citizenship in violation of the Fourth Amendment to the U.S. Constitution. Both such detentions for minor offenses and demands for verification from federal officials are outside the scope of federal priorities. The Act nonetheless forces Tucson to implement the detentions and make the 36,000 or more requests for verification. If ICE tries to process those verifications, and those from every other community in Arizona, the State will have dictated its use of resources and destroyed any ability to prioritize enforcement. If ICE does not respond, the local communities are stuck with people in detention who cannot, under Arizona law, be released even though there may be no basis to hold them. SB 1070 establishes other state crimes that conflict with federal law. A.R.S. 13-1509 establishes a state crime for failure to register as an alien or carry a registration card. 33 A.R.S. 13-2928 adds a new crime of soliciting employment where it obstructs a highway a provision solely directed 32 33 OIG Report, Table 2, page 6. cf. 8 U.S.C.A. 1302(a), 1304(e), 1306(a), (e), 18 U.S.C.A. 3282(A). {A0028677.DOC/} 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 at the employment of unauthorized aliens. 34 A.R.S. 13-2929 parallels, but does not equal, federal criminal provisions for the transportation of unlawful aliens. 35 A.R.S 13-3838(5) gives state law enforcement the authority to arrest a person subject to removal under immigration laws. 36 None of these sections addresses actions that are subject to traditional state police power. All of them parallel federal immigration enforcement. But these new laws allow for separate interpretations by local law enforcement, allow the state courts to determine the meaning of each, separate from any prevailing federal law and impose distinct state penalties. That inherently conflicts with the supremacy of federal immigration law enforcement. Hines, supra.; Crosby, supra. The impact of SB 1070 is not solely upon undocumented aliens. Increased enforcement of immigration laws inevitably will encompass questioning and possible detentions of legal aliens and citizens. As stated in the OIG Report, pg. 22, "[o]ne aspect of DHS' primary mission is to ensure that civil rights and civil liberties are not diminished by its efforts, activities and programs aimed at securing the homeland." The OIG Report found that civil rights and civil liberties had not been consistently included and monitored in the 287(g) programs. It specifically noted one jurisdiction that "is subject of (1) an ongoing racial cf. 8 U.S.C.A. 1324a. cf. 8 U.S.C.A. 1324. 36 For further discussion of the conflicts between SB 1070 and federal immigration laws see Plaintiff's Motion, pg. 11-27, Dkt No. 17. 35 34 {A0028677.DOC/} 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 profiling lawsuit related to 287(g) program activities; (2) a lawsuit alleging physical abuse of a detained alien; and (3) A DOJ investigation into alleged discriminatory police practices, unconstitutional searches and seizures and national origin discrimination." Id., pg. 23. To address this, the Report recommends that ICE incorporate a civil rights and civil liberties review into the approval process. Id. pg. 24. SB 1070 circumvents this federal concern for enforcement consistent with civil rights and civil liberties by allowing local law enforcement to exercise the powers that would be delegated in a 287(g) agreement under state law and without the supervision of the federal government. That inherently trespasses on the federal government's control of immigration law enforcement. 4. SB 1070 VIOLATES THE CONSTITUTIONAL SEPARATION OF POWERS. The drafters of SB 1070 have created a law that ignores the separation of governmental powers in their determination to ensure the mass deportation of unlawful aliens. The Act reduces police and prosecutors to being agents of any resident of the State who wants stricter immigration enforcement, disregarding their separate roles and functions. SB 1070 states that its purpose is to discourage and deter unlawful aliens from remaining in the State. It mandates that local jurisdictions such as Tucson shall have no policy that limits the enforcement of immigration laws to {A0028677.DOC/} 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the full extent permitted by federal law. SB 1070, Sec. 2, A.R.S. 11-1051(G). It delegates to individual state residents the authority to sue to compel police compliance with this provision with the threat of substantial fines. It preordains the decision in the suits the court must enforce immigration laws to the full extent permitted by federal law. Taken together, these effectively force the city to place full enforcement of immigration laws above every other local concern of the executive branch of local government. United Steelworkers of America v. Weber, 443 U.S. 193, 201 (1979) (courts interpret legislation "against the background of the legislative history . . . and the historical context from which the Act arose.") The Act violates the separation of powers on multiple levels. On one level, it takes over the role of the federal executive branch in determining immigration law enforcement policies. Greenlaw v. United States, 544 U.S. 237, 128 S.Ct. 2559 (2008); Hecker v. Chaney, 470 U.S. 821, 832 (1985); "The prerogative of enforcing the criminal law was vested by the Constitution, therefore, not in the Courts, nor in private citizens, but squarely in the executive arm of the government. Congress has implemented the power of the President by conferring the power and the duty to institute prosecution for federal offenses upon the United States Attorney for each district. 28 U.S.C.A. 507. In exercising his power, the United States Attorney acts in an Moses v. administrative capacity as the representative of the public." Kennedy, 219 F.Supp. 762, 764 -765 (D.C.D.C. 1963) (Denial of claim by civil {A0028677.DOC/} 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 rights activists to compel enforcement of federal civil rights laws by the Attorney General in Mississippi.) "Such considerations apply to investigations, arrests, and imprisonments, just as much as they do to actual prosecutions." Id. By mandating that every local jurisdiction enforce immigration laws to the fullest extent permitted by federal law, it lets state judges determine what immigration laws get enforced and thus usurps the exclusive executive authority and absolute executive discretion to decide whether to prosecute cases. U.S. v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100 (1974), Confiscation Cases, 1869, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196, Powell v. Katzenbach, 1965, 123 U.S.App.D.C. 250, 359 F.2d 234, cert. den., 1966, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, reh. den., 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679. "[A]s an incident of the constitutional separation of powers, . . . the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." U.S. v. Cox, 342 F.2d 167, 171 (5th Cir., 1965). On another level, it infringes on state law separation of powers. 37 Under Arizona law, the court evaluates a separation of power claim using the following four factors as guidance: (1) the essential nature of the power exercised; (2) the Legislature's degree of control in exercising the power; (3) the Legislature's objective; and (4) the practical consequences of the action. 37 Tucson submits that the Court's supplemental jurisdiction extends to the state law claim. {A0028677.DOC/} 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 San Carlos Apache Tribe v. Superior Court ex rel. County of Maricopa, 193 Ariz. 195, 211, 972 P.2d 179, 195 (Ariz.,1999). The essential nature of the power exercised is executive in terms of decisions as to allocation of financial resources, allocation of police resources and law enforcement arrest, investigation and prosecution functions. Alternatively, it is the judiciary's power to determine whether an individual has standing to sue to compel a specific type of law enforcement and whether there is any legal basis for the court to intervene in the prosecutorial function of the executive. It is not a legislative power. Under SB 1070, the Legislature has assumed full control over the issue, mandating that the level of immigration enforcement shall be to the maximum extent permitted by federal law. The Legislature's purpose in doing so is impermissible. intent is to impose a state immigration policy. The stated That itself infringes on the exclusive province of the federal government and is not subject to state legislation. There is certainly no effort to cooperate with either the federal executive or any of the local executives forced to implement state immigration policy. Instead, the "objective of the legislature [is] obviously one of establishing its superiority over the executive department in an area essentially executive in nature. State ex rel. Schneider v. Bennett, 219 Kan. 285, 290-91, 547 P.2d 786, 792-3 (Kan. 1976), quoted in J.W. Hancock Enterprises, Inc. v. {A0028677.DOC/} 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Arizona State Registrar of Contractors, 142 Ariz. 400, 405, 690 P.2d 119, 124 (Ariz.App.,1984). The practical result is to force cities and their individual police officers such as the Plaintiff to subordinate local public safety concerns to the impermissible state policy and to force them to act in conflict with the federal government. The further practical result is to open the path for numerous lawsuits against cities that will lead to financial liability and a variety of mixed decisions and directions. On yet another level, SB 1070 usurps Tucson's legislative authority to set its own budget and its executive authority to implement that budget. Tucson's budget is essentially complete for the coming fiscal year that starts July 1, 2010. That budget does not provide for additional immigration enforcement as mandated by SB 1070. The City has already experienced furloughs and layoffs of employees due to the recession. It simply cannot budget sufficient funds for all law enforcement. That legislative policy decision in turn requires that the Tucson Police Department establish priorities in how they enforce the law. Both the budget policy of the Mayor and Council and of the Tucson Police Department will by necessity limit the enforcement of immigration law to something less than the full extent permitted by federal law. As a charter city, Tucson has the sovereign right to determine how to allocate its budget and to set the policies for law enforcement by the Tucson Police Department. {A0028677.DOC/} Strode v. Sullivan, 72 Ariz. 360, 363, 236 P.2d 48 (1951), 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Robertson v. Graziano, 189 Ariz. 350, 354, 942 P.2d 1182, 1186 (Ariz.App. Div. 1,1997) ["the power of a charter city . . . to conduct its operations is not derived from the budget laws, but from the Constitution. See City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 4, 164 P.2d 598, 599 (1945)."] Finally, a separate section of SB 1070 requires that all persons who are arrested must have their immigration status verified prior to their release. Sec. 2, A.R.S. 11-1051(B). SB 1070 provides no exception where a judge determines that release is appropriate, the person posts the required bail or simply pays the assessed fine. The statute thus prevents the courts from exercising the fundamental judicial function of determining the length of incarceration. 5. SB 1070 UNCONSTITUTIONALLY GRANTS INDIVIDUALS THE RIGHT TO CONTROL THE POLICE POWER. SB 1070, Section 2, establishes in A.R.S. 11-1051(G), the right of any legal resident to bring an action against a local government to challenge any "policy" that does not fully enforce immigration laws to the full extent permitted by federal law. The Act provides no definition of what constitutes a policy nor is there any legal definition of what constitutes "to the full extent permitted by federal law." Indeed, the "full extent" of federal immigration law is not now known nor will it ever be known. It is constantly evolving as Congress adopts new laws, modifies existing laws and the federal courts interpret those laws. Despite the lack of outer parameters, there is no question that SB 1070 is the state legislature's challenge to every local agency that it is not doing {A0028677.DOC/} 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 enough to enforce immigration laws. In order to force the communities to do so, the Legislature has delegated control over immigration policy to private individuals. SB 1070, Sec. 2, A.R.S. 11-1051(G). The Act then offers them the prospect of imposing substantial fines on the local communities for not following their political views and the recovery of their attorney's fees. SB 1070, Sec. 2, A.R.S. 11-1051(I) These individuals need not be members of the community that is sued. They need not have any personal interest in how law is enforced in the community and may be pursuing a case solely because of their own political bias. Nonetheless, SB 1070 has stripped the law of the standard protections requiring standing and personal interest to allow these individuals to determine the exercise of the fundamental police power of local communities. SB 1070 leaves no room for the courts to exercise their judicial authority to determine what constitutes the appropriate enforcement of the law in each case. Instead, the courts are required to follow the dictate of the Legislature and require enforcement to the full extent permitted by federal law. The police power, including the executive authority to determine how laws are enforced and how enforcement is prioritized, are fundamental governmental powers that are inalienable. Those powers cannot constitutionally be delegated to private individuals. Carter v. Carter Coal Co., 298 U.S. 238, 310-312, 56 S.Ct. 855, 872 - 873 (U.S. 1936); 6A McQuillin Mun. Corp. 24:7 (3rd ed.); Am. Jur. Constitutional Law 342; Emmett {A0028677.DOC/} 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 McLoughlin Realty, Inc. v. Pima County, 203 Ariz. 557, 559-560, 58 P.3d 39, 41-42 (Ariz.App. Div. 2, 2002); Industrial Commission v. Navajo County, 64 Ariz. 172, 179-180, 167 P.2d 113, 117 (Ariz.1946) ("It is a fundamental principle of constitutional law that the police power is inalienable and cannot be surrendered or delegated, by affirmative action, by inaction, by contract, or otherwise.") 6. SB 1070 EXPRESSLY DISCRIMINATES AGAINST INTERSTATE COMMERCE IN VIOLATION OF THE COMMERCE CLAUSE. SB 1070 strives to deter and discourage the presence of unlawful aliens within the State by obligating all law enforcement officers to commence immigration investigations when there is any "reasonable suspicion" a person the officer contacts is an alien. SB 1070 also seeks to protect its Arizona residents from the obvious intrusive nature of such investigations by establishing a presumption of lawful residency upon the showing of an Arizona driver's license. A.R.S.11-1051(b)(1). The Act then goes on to expressly discriminate against residents from other states by allowing the presumption to apply only if the other state "requires proof of legal presence in the United States before issuance." A.R.S. 11-1051(b)(1). This is not simply an issue of describing an effect of state documents. Rather, it is another example of the intent of the Arizona legislature to force its own political views upon the federal government and other states on the issue {A0028677.DOC/} 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 of immigration. Whether or not to give driver's licenses to undocumented residents has been a hotly contested political issue throughout the country. 38 The neighboring state of New Mexico has taken a different political approach on the issue of providing driver's licenses to undocumented aliens. New Mexico only require an applicant's name, birthdate, sex, New Mexico address, and either a tax identification number or social security. It specifically allows foreign nationals to use an individual taxpayer identification number "regardless of immigration status." N.M.S.A. 1978 66-5-9. Arizona, however, is not content to have this issue decided differently by other states nor content to wait until the federal government resolves the issue.39 It effectively forces its own immigration policy on other states by making the drivers of those states carry citizenship documentation in addition to the state license if they wish to travel in Arizona without the threat that each may be detained while their immigration status is checked. By requiring the drivers from other states to carry citizenship documentation along with the standard state driver's license, SB 1070 imposes an express discriminatory burden on interstate commerce. "When a state statute clearly discriminates against interstate commerce, it will be struck 38 See e.g. Obama takes big risk on driver's license issue, Carolyn Lochhead, Chronical, Washington Bureau, Jan. 28, 2008, available at; States slow to give driver's licenses to illegal aliens, Kathleen Hunter,, available at siteNodeId=136&languageId=1&contentId=15696 39 The State's Office of Tourism advises travelers of the express discrimination in driver's license status citing from the Act the preference for Arizona driver's license and the questionable status of all others. The Arizona Office of Tourism advisory is available at {A0028677.DOC/} 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 down, see, e.g., New Energy Co., [of Indiana v. Limbach, 486 U.S. 269, 273, 108 S.Ct. 1803, 1807, 100 L.Ed.2d 302 (1988)], unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism, see, e.g., Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). Indeed, when the state statute amounts to simple economic protectionism, a "virtually per se rule of invalidity" has applied." Wyoming v. Oklahoma, 502 U.S. 437, 454-455, 112 S.Ct. 789, 800 (U.S.,1992); U.S. v. Eckhart, 569 F.3d 1263, 1272 -1273 (10th Cir., 2009); Lynch v. Public Service Commission of State of Nev., 376 F.Supp. 1033, 1038 (D.C.Nev. 1974); Abraham v. Hodges, 255 F.Supp.2d 539, 555 (D.S.C., 2002). The stated purpose of SB 1070 is to establish an immigration policy that decreases the presence of unlawful aliens. As set forth above, that cannot be a valid state policy since it is within the exclusive jurisdiction of the federal government. In any event, it cannot justify the express discrimination against the legal effect of the driver's licenses of other states. National Collegiate Athletic Ass'n v. Miller, 10 F.3d 633, 638 (9th Cir.,1993). 7. CONCLUSION. SB 107

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