United States of America v. State of California et al

Filing 183

REPLY by Xavier Becerra, Edmund Gerald Brown, Jr, State of California re 77 Motion to Dismiss. (Sherman, Lee)

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1 2 3 4 5 6 7 8 9 10 XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General MICHAEL NEWMAN SATOSHI YANAI ANTHONY HAKL Supervising Deputy Attorneys General CHRISTINE CHUANG CHEROKEE DM MELTON LEE I. SHERMAN Deputy Attorneys General State Bar No. 272271 300 S. Spring Street Los Angeles, CA 90013 Telephone: (213) 269-6404 Fax: (213) 897-7605 E-mail: Lee.Sherman@doj.ca.gov Attorneys for Defendants 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 SACRAMENTO DIVISION 14 15 THE UNITED STATES OF AMERICA, Case No. 2:18-cv-00490-JAM-KJN 16 Plaintiff, REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 17 18 19 v. 21 THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of California, in his official capacity; and XAVIER BECERRA, Attorney General of California, in his official capacity, 22 Hearing Date: Time: Courtroom: Judge: Trial Date: Action Filed: June 20, 2018 10:00 a.m. 6 Honorable John A. Mendez None set March 6, 2018 Defendants. 20 23 24 25 26 27 28 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) 1 2 I. THE UNITED STATES’ SB 54 CLAIM SHOULD BE DISMISSED In its opposition, the United States makes the remarkable assertion that California either 3 must acquiesce to full participation in federal immigration enforcement once it “chooses” to arrest 4 or prosecute an “alien” for violating a state criminal statute, or it must decline to arrest or 5 prosecute such a person in the first place. See Opp’n at 13-14. Although the United States claims 6 that SB 54 “forces local law enforcement to release . . . criminals,” Reply at 26, that is exactly 7 what the United States instructs California to do in order to avoid being subject to the federal 8 government’s demands. Id. This Hobson’s Choice is unconstitutional and turns federalism on its 9 head. It is not Congress that offers California the “opportunity” to enforce state criminal laws, 10 Opp’n at 13, it is a right inherent in California’s sovereignty. See U.S. Const. amend. X; United 11 States v. Morrison, 529 U.S. 598, 618 (2000). Under the United States’ theory, California would 12 be left with no “legitimate choice” to decline participation in immigration enforcement. See, e.g., 13 New York v. United States, 505 U.S. 144, 177, 185 (1992). That simply cannot be the case. 14 Not once does the United States explain how it may commandeer the State’s allocation of 15 law enforcement resources. See, e.g., ECF 77 at 5, 7. The United States relies on the Supreme 16 Court’s recognition that Congress may regulate the states in certain circumstances, Opp’n at 14, 17 but its examples do not support commandeering of the State’s executive or legislative processes. 18 While Congress may preempt a state law that subjects private actors to different requirements 19 than federal laws, see generally Arizona v. United States, 567 U.S. 387 (2012), here the United 20 States seeks to impose restrictions directly on the State’s law enforcement officers. Cf. Murphy v. 21 NCAA, 138 S. Ct. 1461, 1480 (2018) (referring to federal right for airline carriers to be subject to 22 just federal constraints). 23 Reno v. Condon, 528 U.S. 141 (2000) is also inapposite. There, the Court upheld the 24 Driver’s Privacy Protection Act because Congress regulated states as operators of databases and 25 sellers of information in the same manner as private entities. Id. at 151. Here, the United States is 26 attempting to regulate the state qua state when it attempts to control how the state’s law 27 enforcement officers must act in the context of the state’s criminal laws. The Tenth Amendment 28 prohibits such directions on the “functioning of the state executive,” particularly when a statute 1 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) 1 regulates information that “belongs to the State and is available to them in their official capacity.” 2 Printz v. United States, 521 U.S. 898, 932 & n.17. 3 Last week a federal court rejected the same arguments the United States makes here, 4 finding that, under Murphy, § 1373(a) and (b) “[o]n their face … regulate state and local 5 governmental entities, which is fatal to their constitutionality under the Tenth Amendment.” 6 Compare Philadelphia v. Sessions, -- F. Supp. 3d --, 2018 WL 2725503, at 32-34 (E.D. Pa. June 7 6, 2018) with Opp’n at 15 & Reply at 17-22. These problems with § 1373 infect all of the United 8 States’ preemption claims here since the federal government is seeking to direct that the State 9 allow the exchange of information and compliance with notification and transfer requests, which 10 are purely state and local law enforcement functions. See, e.g., Printz, 521 U.S. at 932. 11 Aside from the Tenth Amendment, Congress must be “unmistakably clear” in the text of 12 the statute to preempt the State’s allocation of responsibilities among government officials. 13 Gregory v. Ashcroft, 501 U.S. 452, 461 (1992). Although the United States interprets § 1373 to 14 include release dates and addresses, 1 two courts have found that § 1373 does not include release 15 dates. Philadelphia, 2018 WL 2725503, at 35; 2 Steinle v. City & Cty. of San Francisco, 230 F. 16 Supp. 3d 994, 1015 (N.D. Cal. 2017). For the same reasons, § 1373 does not include addresses. 17 The United States’ reliance on Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215, 2018 WL 18 2465174 (S. Ct. June 4, 2018), Opp’n at 13, is unavailing. There, the Court’s decision involved an 19 interpretation of “respecting” in the Bankruptcy Code tied to a private debt that did not, in any 20 way, involve the structure and duties of state and local governments. Instead this Court should 21 look to Presley v. Etowah Cty. Comm’n, 502 U.S. 491 (1992) where the Supreme Court refused to 22 interpret the phrase “with respect to voting” to mean “with respect to governance,” because that 23 interpretation “fail[ed] to provide a workable standard for distinguishing between changes in rules 24 governing voting and changes in the routine organization and functioning of government.” Id. at 25 1 26 27 28 To argue that § 1373 includes a person’s “presence” or “whereabouts,” Reply at 22, the United States cites to a legislative report for a different statute. Compare H.R. Conf. Rep. 104-725 with H.R. Conf. Rep. 104-828 (the conference report for the act that spawned § 1373). In any event, the cited report does not support its interpretation since it distinguishes between information “regarding … immigration status” and “whereabouts” information, H.R. Conf. Rep. 104-725 at 383, the latter of which does not appear in the statute. 2 Contrary to the United States’ contention, Reply at 21 n.7, the Philadelphia decision thoroughly considered the potential impact of other INA statutes such as 8 U.S.C. §§ 1226 and 1231 on the reading of § 1373. Id. at 35-40. 2 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) 1 504. The Supreme Court recognized the harm such an interpretation would cause to federalism by 2 delimiting state and local governments from “exercis[ing] power in a responsible manner within a 3 federal system.” Id. at 507. Interpreting release dates and addresses as “information … regarding 4 immigration status” is similarly unworkable, ECF 74 at 11-14, and undermines the State’s ability 5 to structure its government. See Presley, 502 U.S. at 510. Any intent by Congress to preempt 6 beyond § 1373 is even less clear. ECF 74 at 19-23. 7 Finally, there is no support for the claim that intergovernmental immunity allows the 8 United States to commandeer the State’s allocation of its own resources. Cf. United States v. 9 Arcata, 629 F.3d 986, 991-92 (9th Cir. 2010) (Tenth Amendment not a defense where city 10 directly regulated federal government). In Boeing Co. v. Movassaghi, 768 F.3d 832 (9th Cir. 11 2014), Opp’n at 12, the state directly regulated a federal contractor. Id. at 839-42. Since SB 54 is 12 facially neutral, treats similarly situated persons the same, and deals within the scope of “proper 13 domestic concerns,” ECF 77 at 7-8, the United States’ claim fails. See USPS v. Berkeley, 2018 14 WL 2188853, at *3 (N.D. Cal. May 14, 2018) (zoning law did not discriminate against USPS 15 though it did not “lump together” all historic properties as “similarly situated constituents”). 16 II. 17 THE UNITED STATES’ AB 450 CLAIM SHOULD BE DISMISSED AB 450 is a valid exercise of the State’s historic police powers to regulate the workplace 18 and employment relationships. The United States cannot show that AB 450 “frustrate[s] the 19 objectives” of the Immigration and Reform Control Act of 1986 (IRCA), see Silkwood v. Kerr- 20 McGee Corp., 464 U.S. 238, 256-57 (1984), or that Congress’s “clear and manifest purpose” is to 21 supersede the State’s powers here. See Wyeth v. Levine, 555 U.S. 555, 565 (2009). IRCA’s 22 purpose is to deter employers from hiring unauthorized workers, 8 U.S.C. § 1324a, and Congress 23 chose not to criminalize engaging in unauthorized work. Arizona, 567 U.S. at 405-06. AB 450 is 24 consistent with Congress’s goal of combatting unlawful employment while maintaining labor 25 protections and state processes to address unfair business practices. See H.R. Rep. 99-682(I) at 58 26 (no intent to “undermine or diminish in any way labor protections” or limit remedies of “unfair 27 practices committed against undocumented employees”); Wyeth, 555 U.S. at 574 (state law did 28 not interfere with Congress’s purpose to bolster consumer protection). AB 450 does not disturb 3 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) 1 IRCA’s employer inspections, requires compliance with federal law, and gives immigration 2 officials “reasonable access” to private areas with a warrant and employee records with a warrant 3 or subpoena. See 8 U.S.C. § 1374a(e)(2); Cal. Gov’t Code §§ 7285.1(a)(1), 7285.2(a)(1). 4 The United States argues that any law that makes its work more “difficult” is preempted. 5 Opp’n at 7. But that is not the law. Congress accepted that there might be tension between the 6 states’ regulation of employment and federal immigration enforcement, and any supposed 7 difficulties do not meet the high threshold for preemption. See Silkwood, 464 U.S. at 256-57; 8 Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 607 (2011). Nothing in IRCA, outside 9 of I-9 inspections, which do not require a subpoena or warrant, is “premised” on consent as the 10 intended tool for inspections. See Opp’n at 5. Thus, unlike Oregon Prescription Drug Monitoring 11 Program v. D.E.A., 860 F.3d 1228 (9th Cir. 2018), where a state law requiring a court order to 12 obtain information conflicted with federal provisions expressly allowing the use of subpoenas by 13 the DEA without a court order, AB 450 does not conflict with IRCA’s enforcement tools. The 14 United States’ reliance on Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1983), is misplaced since that 15 case does not establish a “right” to consent, and the United States routinely obtains warrants to 16 enter businesses. See, e.g., Int’l Molders’ & Allied Workers’ Local Union No. 164 v. Nelson, 799 17 F.2d 547, 552 (9th Cir. 1983); I.N.S. v. Delgado, 466 U.S. 210, 212 (1984). Nor is conflict 18 “imminent” here because two separate remedies have not been “brought to bear on the same 19 activity.” See Opp’n at 6 (citing to Wisconsin Dept. of Indus., Crosby, and Garamendi). These 20 cases all involve uniquely federal areas not falling within the State’s police powers and state 21 systems conflicting with federal operation of the same activity. But AB 450 is not a scheme 22 regulating unlawful employment, cf. Arizona, 567 U.S. at 406, nor one that provides sanctions for 23 employers violating IRCA. Cf. Wisconsin Dept. of Indus., Labor and Human Relations v. Gould, 24 475 U.S. 282, 286-87 (1986). And where the State has authority to enact a law, it can impose 25 penalties. Whiting, 563 U.S. at 605. 26 Regarding intergovernmental immunity, AB 450 applies to employers as a result of doing 27 business in the State in response to any person or entity acting as an immigration enforcement 28 agent—federal, state, or local. See North Dakota v. United States, 495 U.S. 423, 438 (1990). AB 4 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) 1 450 balances employees’ inalienable privacy rights, see Cal. Const. art. I, § 1, with allowing 2 immigration agents reasonable access to records, Cal. Gov’t Code § 7285.2(a), like other laws 3 requiring a warrant or court order for information. See, e.g., id. § 6254.18 (information of those 4 with reproductive health facilities); Cal. Civ. Code § 56.10(b)(6) (medical information). And 5 providing employees with notice of an inspection, which is focused on employers, is not akin to 6 warning criminal suspects, especially where notice is contemplated as part of the process. ECF 7 138 at 11 (amicus brief discussing when ICE instructs employers to give notice). 8 III. THE UNITED STATES’ AB 103 CLAIM SHOULD BE DISMISSED 9 On its face, AB 103 does not obstruct the United States’ authority to “arrange” for 10 detention, control conditions of confinement, or affect an individual’s removal. See Opp’n at 9- 11 10. The United States cites nothing to support the proposition that California may not evaluate 12 detention facilities, nor does it explain how such a review obstructs federal law enforcement. 13 Where there is no clear grant of exclusive jurisdiction, state and federal governments operate as 14 dual sovereigns. See generally, Murphy, 138 S. Ct. at 1475; see also Melton Decl., ECF 83-2, 15 Exs. M-S. Lastly, as the United States admits, “AB 103 does not itself require public disclosure of 16 detainee information,” Opp’n at 10, nor is “sensitive information” required to be released. State 17 laws should not be interpreted to “create[] a conflict with federal law.” Arizona, 567 U.S. at 415. 18 Intergovernmental immunity is not violated where the burden placed on non-federal entities 19 contracting with the federal government is not solely based on their affiliation with the 20 government. North Dakota, 495 U.S. at 437. Here, the State’s interest in reviewing conditions in 21 facilities under AB 103 is no different than its interest in other State detention facilities. Indeed, 22 AB 103 is far less onerous than inspection regimes that apply elsewhere. E.g., Penal Code §§ 23 6030-6031.2; see also In re Nat’l Sec. Agency Telecommunications Records Litig., 633 F. Supp. 24 2d 892, 903 (N.D. Cal. 2007). An indirect burden on the United States from overlapping state and 25 federal jurisdiction is insufficient to state a claim. North Dakota, 495 U.S. at 434-35. 26 IV. 27 CONCLUSION For the foregoing reasons, the Court should dismiss the United States’ complaint. 28 5 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) 1 Dated: June 13, 2018 Respectfully Submitted, 2 XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General ANTHONY HAKL MICHAEL NEWMAN SATOSHI YANAI Supervising Deputy Attorneys General 3 4 5 6 7 /s/ Christine Chuang /s/ Cherokee DM Melton /s/ Lee Sherman 8 9 CHRISTINE CHUANG CHEROKEE DM MELTON LEE SHERMAN Deputy Attorneys General Attorneys for the State of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Reply in Supp. of Defs.’ Mot. to Dismiss (18-cv-00490-JAM-KJN) CERTIFICATE OF SERVICE Case Name: United States v. California, et al No. 2:18-cv-00490-JAM-KJN I hereby certify that on June 13, 2018, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 13, 2018, at Los Angeles, California. Lee Sherman Declarant /s/ Lee Sherman Signature

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