United States of America v. State of California et al

Filing 168

MOTION for LEAVE to file Amici Curiae Brief by City of Aliso Viejo, City of Escondido, City of Glendora, City of Laguna Niguel, City of Yorba Linda, Rebecca Jones, Mike Spence . Attorney Joseph, Lawrence John added. (Attachments: # 1 Proposed Order, # 2 Updated Corporate Disclosure, # 3 Proposed Amici Curiae Brief)(Joseph, Lawrence) Modified on 6/11/2018 (Donati, J).

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Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Dale L. Wilcox*
Sarah R. Rehberg*
Immigration Reform Law Institute
25 Massachusetts Avenue, NW, Suite 335
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
* Not admitted in this jurisdiction
Counsel for Prospective Amici Curiae: MUNICIPALITIES AND ELECTED OFFICIALS

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.

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______________________________

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CASE No. 2:18-cv-00490-JAM-KJN
MUNICIPALITIES & ELECTED
OFFICIALS’ MOTION FOR LEAVE TO
FILE AMICI CURIAE BRIEF IN SUPPORT
OF PLAINTIFF’S OPPOSITION TO
MOTION TO DISMISS
NO HEARING NOTICED
Complaint filed: March 6, 2018
Honorable John A. Mendez

The seven California municipalities and elected officials listed herein (collectively,
“Movants”) respectfully seek this Court’s leave to leave to file the accompanying amici curiae

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brief in support of the federal plaintiff’s opposition (ECF #166) to the California state defendants’

MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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motion to dismiss (ECF #077). Movants’ coalition previously filed an amici brief (ECF #057) in

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support of the federal plaintiff’s motion for a preliminary injunction. The undersigned counsel

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have conferred with the parties’ counsel, and the plaintiffs consent, but the defendants do not

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consent to filing on the amici brief,1 but stipulated to the motion’s being submitted without a

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hearing, upon the record and briefs, pursuant to Local Rule 230(g). Accordingly, Movants

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respectfully submit that a hearing would be unnecessary. A proposed Order is attached.

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INTRODUCTION

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Unlike the federal appellate rules, the Federal Rules of Civil Procedure do not provide for

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amicus briefs. This Court’s rules contemplate amicus briefs, L.R. 5-133(h), as do this Court’s
Minute Orders dated March 12 and March 26, 2018, but the Court’s rules do not expressly provide

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procedures unique to amici briefs. Accordingly, Movants seek this Court’s leave pursuant to L.R.

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230(g), but rely on the related principles of appellate amicus procedure for guidance. Under those

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principles, this motion sets forth the prospective amici coalition’s interest in these proceedings and

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the manners in which their amici brief will aid the Court.

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INTEREST AND IDENTITY OF AMICUS CURIAE

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The following California municipalities and elected officials respectfully seek this Court’s

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leave to file the accompanying amici brief:
The City of Yorba Linda; the City of Escondido; the City of Aliso Viejo; the City of

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Glendora; and the City of Laguna Niguel.

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Specifically, the federal plaintiff “consent[s], contingent on [Movants’] filing this timely,
meaning California would have a chance to respond, if it chose to, in its … reply due June 13,”
and “California does not consent to [Movants’] request” “[s]ince the deadlines for amicus briefs
in support of either party has passed.” Having withheld their consent, without indicating whether
they will file an opposition to this motion, it is unclear what the defendants will do. Failure to
respond can be taken as consent. Brydges v. Lewis, 18 F.3d 651, 652-53 (9th Cir. 1993).

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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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The Hon. Mike Spence, City of West Covina Councilman, and the Hon. Rebecca Jones,

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Vice-Mayor of the City of San Marcos, in their respective individual capacities.

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In their respective capacities, amici are or represent political subdivisions of not only plaintiff

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United States but also defendant California. With two competing sovereigns at loggerheads on

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these issues, the current situation is untenable. Under the California Constitution, officials must

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“solemnly swear … [to] support and defend the Constitution of the United States and the
Constitution of the State of California,” CAL. CONST. art. XX, §3; see also CAL. GOV’T CODE
§§1360, 36507, which is impossible when the two sovereigns impose conflicting commands.2
To ensure the liberties guaranteed to them and to their constituents by both the U.S.

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Constitution and the California Constitution, amici feel compelled to support the federal sovereign

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over the state sovereign in this dispute. The challenged state laws attempt not only to usurp the

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federal government’s exclusive and plenary power over immigration, but also to restrict amici and

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their constituents from supporting the federal government in the exercise of that power. In addition

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to violating the federalist structure of the U.S. Constitution with respect to immigration policy —
an exclusively federal concern, DeCanas v. Bica, 424 U.S. 351, 354 (1976) — the challenged laws
also purport to abridge the First amendment rights of free speech and petition, U.S. CONST. amend.
I, cl. 3, 6. The “loss of First Amendment freedoms, for even minimal periods of time,

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unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976), which

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this Court should remedy expeditiously.

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Further, amici seek to protect their right to exercise their police power as they see fit: “Upon

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In pertinent part, GOV’T CODE §1360 provides that “before any officer enters on the duties
of his or her office, he or she shall take and subscribe the oath or affirmation set forth in Section 3
of Article XX of the Constitution of California,” and GOV’T CODE §36507 provides that “each city
officer shall take and file with the city clerk the constitutional oath of office.”
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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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the principle of self-defense, of paramount necessity, a community has the right to protect itself.”

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Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905); Cty. of Plumas v. Wheeler, 149 Cal. 758, 762

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(1906). Significantly, amici have grave concerns about the lawfulness of the challenged state laws,

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not only civilly as a matter of preemption, but also criminally as the unlawful concealment,

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harboring, or shielding from detection of illegal aliens under 8 U.S.C. §1324(a)(1)(A)(iii), (v).

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Amici thus urgently need judicial clarity on the permissible reach of the challenged laws.

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Further, the recent Information Bulletin3 entitled “Responsibilities of Law Enforcement

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Agencies Under [sic] the California Values Act, California TRUST Act, and the California
TRUTH Act” issued by the California Department of Justice’s Division of Law Enforcement does

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nothing to ameliorate the concerns that amici raise here. First, an agency’s “written statement of

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policy that an agency intends to apply generally, that is unrelated to a specific case, and that

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predicts how the agency will decide future cases is essentially legislative in nature even if it merely

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interprets applicable law.” Yamaha Corp. of Am. v. State Bd. of Equalization, 19 Cal. 4th 1, 18

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(Cal. 1998) (internal quotations omitted, emphasis in original). Second, agencies cannot lawfully
issue such “house rules” without complying with the procedural requirements of the California

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Administrative Procedure Act, see CAL. GOV’T CODE § 11342.600 (defining regulation broadly as
“every rule, regulation, order, or standard of general application or the amendment, supplement,

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or revision of any rule, regulation, order, or standard adopted by any state agency to implement,

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interpret, or make specific the law enforced or administered by it, or to govern its procedure”),

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which California’s Department of Justice did not do here. Third, the foregoing elemental

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protections apply every bit as much to enforcement polices as they do to more formal rule-like

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Available at https://oag.ca.gov/sites/all/files/agweb/pdfs/law_enforcement/dle-18-01.pdf
(last visited June 8, 2018).
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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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pronouncements. Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557, 570-75 (Cal.

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1996). Finally, such ultra vires administrative constructions are not entitled to any deference in

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either California or federal courts. See Peabody v. Time Warner Cable, Inc., 689 F.3d 1134, 1137

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(9th Cir. 2012). Under the foregoing blackletter, basic provisions of our representative democracy,

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the recent Information Bulletin is void ab initio and, as such, irrelevant here, except to signal that

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the California Department of Justice admits that the California Legislature overstepped its bounds.

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As explained in the accompanying amici brief, Movants concur with the Court’s finding

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that plaintiff’s motion for a preliminary injunction raises issues similar to defendants’ motion to
dismiss, Minute Order (May 7, 2018) (ECF #079), and offer this brief only to address the impact

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of the Supreme Court’s subsequent decision in Murphy v. NCAA, 200 L.Ed.2d 854 (2018), on the

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commandeering and preemption issues raised in connection with 8 U.S.C. §1373.

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For all of the foregoing reasons, movants have direct and vital interests in the issues

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presented before this Court, and respectfully request leave to file their accompanying brief in

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support of the federal government.

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THIS MOTION IS TIMELY

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Although California’s email withholding its consent argues that “the deadlines for amicus

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briefs in support of either party has passed,” see note 1, supra, California is mistaken. The Court

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did not set a deadline for amicus briefs in support of either or neither party in connection with the

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motion to dismiss (ECF #077), and the only deadline that the Court set for amicus briefs in support

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of the federal plaintiff clearly concerned the plaintiff’s motion for a preliminary injunction, not

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amicus briefs in support of plaintiff’s opposition to California’s motion to dismiss.4 The schedule

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See Minute Order (Mar. 12, 2018) (ECF #017) (“amicus briefs in support of Plaintiffs
motion are due March 26, 2018”); Minute Order (Mar. 26, 2018) (ECF #034) (“Amicus briefs in

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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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for defendants’ motion to dismiss is silent on amicus briefs.5 By filing this motion on June 8,

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Movants leave the defendants ample time to respond, should they wish to respond.6 That said, the

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issues that Movants raise about the Necessary and Proper Clause, the criminal prohibition against

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harboring illegal aliens, and the First Amendment right to work with the federal government on

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these issues all were raised in Movants’ initial amici brief (ECF #057), filed well before

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California’s motion to dismiss (ECF #077), and California elected not to address those issues.

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AUTHORITY TO FILE AMICUS BRIEF

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Motions under FED. R. APP. P. 29(b) must explain the movant’s interest and “the reason

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why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the
case.” FED. R. APP. P. 29(b). The Advisory Committee Note to the 1998 amendments to Rule 29

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explain that “[t]he amended rule [Rule 29(b)] … requires that the motion state the relevance of the

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matters asserted to the disposition of the case.” The Advisory Committee Note then quotes Sup.

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Ct. R. 37.1 to emphasize the value of amicus briefs that bring a court’s attention to relevant matter

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not raised by the parties:

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An amicus curiae brief which brings relevant matter to the attention
of the Court that has not already been brought to its attention by the
parties is of considerable help to the Court.

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Id. (quoting Sup. Ct. R. 37.1). “Because the relevance of the matters asserted by an amicus is
ordinarily the most compelling reason for granting leave to file, the Committee believes that it is
helpful to explicitly require such a showing.”

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support of Plaintiff’s motion are now due April 6, 2018”); see also Minute Order (Mar. 29, 2018)
(ECF #041) (concerning defendants’ amici).
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Minute Order (May 7, 2018) (ECF #079).

Movants’ amici brief also conforms to the 5-page limit that this Court set for supplemental
briefing on Murphy. Minute Order (May 22, 2018) (ECF #145).
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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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As now-Justice Samuel Alito wrote while serving on the U.S. Court of Appeals for the

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Third Circuit, “I think that our court would be well advised to grant motions for leave to file amicus

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briefs unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly

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interpreted. I believe that this is consistent with the predominant practice in the courts of appeals.”

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Neonatology Assocs., P.A. v. Comm’r, 293 F.3d 128, 133 (3rd Cir. 2002) (citing Michael E. Tigar

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and Jane B. Tigar, Federal Appeals -- Jurisdiction and Practice 181 (3d ed. 1999) and Robert L.
Stern, Appellate Practice in the United States 306, 307-08 (2d ed. 1989)). Now-Justice Alito

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quoted the Tigar treatise favorably for the statement that “[e]ven when the other side refuses to
consent to an amicus filing, most courts of appeals freely grant leave to file, provided the brief is

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timely and well-reasoned.” 293 F.3d at 133. As explained in the next section, the accompanying

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brief will aid this Court.

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FILING THE AMICI BRIEF WILL AID THE COURT
In addition to the Murphy issues pressed by the United States, Movants make several
additional related arguments under Murphy that would aid this Court in deciding the issues
presented here:

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Illegality of Shielding and Harboring. Movants distinguish Murphy first on the basis that
immigration law makes it criminal to shield or harbor illegal aliens, whereas Congress in

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the Murphy statute did not criminalize sports gambling. See Amici Br. at 2-3.

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Section 1373(a)’s Individual Protections. Moreover, and disregarding how Congress

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framed 8 U.S.C. §1373, the statute protects the First Amendment petition rights of Movants

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and their constituents, thus falling with the ambit of laws allowed under Murphy. See Amici

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Br. at 2, 4-5.

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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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Necessary and Proper Clause. Movants then analyze the foregoing aspects of 8 U.S.C.

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§1373(a) under the Constitution’s Necessary and Proper Clause, U.S. CONST, art. I, §8, cl.

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18, to show how Section 1373 does not violate the tenets of federalism that the Murphy

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statute violated, See Amici Br. at 3-5.

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Preemption Analysis. Movants also analyze Section 1373 under the preemption analysis

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in Murphy to show that Section 1373’s protection of individual rights under the First
Amendment distinguishes the Supreme Court’s analysis of the Murphy statute. See Amici
Br. at 5.
For the foregoing reasons, Movants respectfully submit that their amici brief would aid this Court’s
analysis of the important issues presented here.

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CONCLUSION

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WHEREFORE, Movants respectfully request leave to file the accompanying amici curiae

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brief in support of the federal plaintiff’s opposition (ECF #166) to the California defendants’

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motion to dismiss (ECF #077).
Dated: June 8, 2018

Respectfully submitted,

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/s/ Lawrence J. Joseph

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Dale L. Wilcox
Sarah R. Rehberg
Immigration Reform Law Institute
25 Massachusetts Avenue, NW, Suite 335
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Prospective Amici Curiae

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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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CERTIFICATE OF SERVICE

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I hereby certify that on this 8th day of June, 2018, I electronically filed the foregoing

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motion for leave to file together with the accompanying amici curiae brief, with the Clerk of the

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Court for the United States District Court for the Eastern District of California by using the

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CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the

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CM/ECF system. Notice of this filing will be sent by mail to anyone unable to accept electronic

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filing as indicated on the Notice of Electronic filing. Parties may access this filing through the
Court’s CM/ECF System.

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/s/ Lawrence J. Joseph

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Lawrence J. Joseph (SBN 154908)

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Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE

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