United States of America v. State of California et al

Filing 50

MOTION for LEAVE to FILE AMICI CURIAE BRIEF by City of Aliso Viejo, City of Barstow, City of Escondido, City of Fountain Valley, City of Hesperia, City of Mission Viejo, City of Yorba Linda, Mike Spence, David Harrington, Jim Desmond, Rebecca Jones, Ryan Vienna, Dana T Rohrabacher. Attorney Joseph, Lawrence John added. (Attachments: # 1 Corporate Disclosure, # 2 Proposed Order, # 3 Proposed Amici Curiae Brief, # 4 Addendum to Amici Brief)(Joseph, Lawrence) Modified on 4/9/2018 (Donati, J).

Download PDF
1 2 3 4 5 6 7 8 9 10 11 Lawrence J. Joseph (SBN 154908) Law Office of Lawrence J. Joseph 1250 Connecticut Ave, NW, Suite 200 Washington, DC 20036 Tel: 202-355-9452 Fax: 202-318-2254 Email: ljoseph@larryjoseph.com Dale L. Wilcox* Sarah R. Rehberg* Immigration Reform Law Institute 25 Massachusetts Avenue, NW, Suite 335 Washington, DC 20001 Tel: 202-232-5590 Fax: 202-464-3590 Email: dwilcox@irli.org Email: srehberg@irli.org * Not admitted in this jurisdiction Counsel for Prospective Amici Curiae: MUNICIPALITIES AND ELECTED OFFICIALS 12 13 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 14 15 16 17 18 UNITED STATES OF AMERICA, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants. 19 20 21 ______________________________ ) ) ) ) ) ) ) ) ) ) ) CASE No. 2:18-cv-00490-JAM-KJN MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF NO HEARING NOTICED Complaint filed: March 6, 2018 Honorable John A. Mendez 22 23 The thirteen California municipalities and elected officials listed herein respectfully move 24 this Court for leave to file the accompanying amici curiae brief in support of the federal plaintiff’s 25 motion for a preliminary injunction. The undersigned counsel have conferred with the parties’ 26 counsel, and the parties consent to filing on the amici brief. A proposed Order is attached. MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 1 INTRODUCTION 1 2 Unlike the federal appellate rules, the Federal Rules of Civil Procedure do not provide for 3 amici briefs. This Court’s rules contemplate amici briefs, L.R. 5-133(h), as does this Court’s 4 Minute Orders dated March 12 and March 26, 2018, but the Court’s rules do not expressly provide 5 procedures unique to amici briefs. Accordingly, movants seek this Court’s leave pursuant to L.R. 6 230(g). In this motion, the prospective amici seek to demonstrate their interest in these proceedings 7 8 9 10 11 and the manners in which their amici brief will aid the Court. INTEREST AND IDENTITY OF AMICUS CURIAE The following California municipalities and elected officials (collectively, “Municipalities and Officials”) respectfully seek this Court’s leave to file the accompanying amici brief: 12 The City of Yorba Linda; the City of Hesperia; the City of Escondido; the City of Aliso 13 Viejo; the City of Mission Viejo; the City of Fountain Valley; and the City of Barstow. 14 The Hon. Mike Spence, Mayor of the City of West Covina; the Hon. David Harrington, 15 Mayor of the City of Aliso Viejo; the Hon. Jim Desmond, Mayor of the City of San Marcos; 16 17 18 19 20 and the Hon. Rebecca Jones, Vice-Mayor of the City of San Marcos, in their respective individual capacities. The Hon. Ryan A. Vienna, City of San Dimas Council Member, in his individual capacity. The Hon. Dana T. Rohrabacher, Member of Congress, in his individual capacity. 21 In their respective capacities, amici are or represent political subdivisions of not only plaintiff 22 United States but also defendant California. With two competing sovereigns at loggerheads on 23 these issues, the current situation is untenable. Under the California Constitution, officials must 24 “solemnly swear … [to] support and defend the Constitution of the United States and the 25 26 MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 2 1 2 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.1 3 To ensure the liberties guaranteed to them and to their constituents by both the U.S. 4 Constitution and the California Constitution, amici feel compelled to support the federal sovereign 5 over the state sovereign in this dispute. The challenged state laws attempt not only to usurp the 6 7 federal government’s exclusive and plenary power over immigration, but also to restrict amici and their constituents from supporting the federal government in the exercise of that power. In addition 8 9 10 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 11 also purport to abridge the First amendment rights of free speech and petition, U.S. CONST. amend. 12 I, cl. 3, 6. The “loss of First Amendment freedoms, for even minimal periods of time, 13 unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976), which 14 this Court should remedy expeditiously. 15 16 Further, amici seek to protect their right to exercise their police power as they see fit: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself.” 17 18 19 Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905); Cty. of Plumas v. Wheeler, 149 Cal. 758, 762 (1906). Amici understand that other amicus briefs – including victims groups and law-enforcement 20 groups – will emphasize the factual side of the risks posed by illegal aliens to public safety; as 21 such, amici do not repeat those arguments here. Indeed, when factual arguments rely on aggregated 22 data, they may obscure localized inconsistencies in the data: what is true in Marin County may not 23 24 25 26 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.” 1 MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 3 1 be true in the border areas of San Diego or Imperial Counties. Instead, amici argue for their right 2 to decide for their own communities on how best to protect the public safety in their communities, 3 based on the facts in their communities.2 The best allocation of municipal law-enforcement 4 resources is not set in either Washington, DC, or Sacramento, but in each of the amici communities. 5 Significantly, amici have grave concerns about the lawfulness of the challenged state laws, 6 7 not only civilly as a matter of preemption, but also criminally as the unlawful concealment, harboring, or shielding from detection of illegal aliens under 8 U.S.C. §1324(a)(1)(A)(iii), (v). 8 9 Amici thus urgently need judicial clarity on the permissible reach of the challenged laws. Finally, the recent Information Bulletin3 entitled “Responsibilities of Law Enforcement 10 11 Agencies Under [sic] the California Values Act, California TRUST Act, and the California 12 TRUTH Act” issued by the California Department of Justice’s Division of Law Enforcement does 13 nothing to ameliorate the concerns that amici raise here. First, an agency’s “written statement of 14 policy that an agency intends to apply generally, that is unrelated to a specific case, and that 15 16 predicts how the agency will decide future cases is essentially legislative in nature even if it merely interprets applicable law." Yamaha Corp. of Am. v. State Bd. of Equalization, 19 Cal. 4th 1, 18 17 18 19 20 (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 Administrative Procedure Act, see CAL. GOV’T CODE § 11342.600 (defining regulation broadly as 21 22 Amici in no way imply that the aggregate data are unimportant to resolving the issues before this Court. At the state level, California is a one-party state with an open-border agenda, and California’s state government thus seeks to downplay or ignore the significant threat to public safety that illegal immigration poses in some — but perhaps not all — of the state. 2 23 24 25 26 Available at https://oag.ca.gov/sites/all/files/agweb/pdfs/law_enforcement/dle-18-01.pdf (last visited April 6, 2018). 3 MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 4 1 “every rule, regulation, order, or standard of general application or the amendment, supplement, 2 or revision of any rule, regulation, order, or standard adopted by any state agency to implement, 3 interpret, or make specific the law enforced or administered by it, or to govern its procedure”), 4 which California’s Department of Justice did not do here. Third, the foregoing elemental 5 protections apply every bit as much to enforcement polices as they do to more formal rule-like 6 7 pronouncements. Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557, 570-75 (Cal. 1996). Finally, such ultra vires administrative constructions are not entitled to any deference in 8 9 10 either California or federal courts. See Peabody v. Time Warner Cable, Inc., 689 F.3d 1134, 1137 (9th Cir. 2012). Under the foregoing blackletter, basic provisions of our representative democracy, 11 the recent Information Bulletin is void ab initio and, as such, irrelevant here, except to signal that 12 the California Department of Justice admits that the California Legislature overstepped its bounds. 13 For all of the foregoing reasons, movants have direct and vital interests in the issues 14 presented before this Court, and respectfully request leave to file their accompanying brief in 15 support of the federal government. 16 17 18 19 AUTHORITY TO FILE AMICUS BRIEF Motions under FED. R. APP. P. 29(b) must explain the movant’s interest and “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the 20 case.” FED. R. APP. P. 29(b). The Advisory Committee Note to the 1998 amendments to Rule 29 21 explain that “[t]he amended rule [Rule 29(b)] … requires that the motion state the relevance of the 22 matters asserted to the disposition of the case.” The Advisory Committee Note then quotes Sup. 23 Ct. R. 37.1 to emphasize the value of amicus briefs that bring a court’s attention to relevant matter 24 not raised by the parties: 25 26 MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 5 2 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. 3 Id. (quoting Sup. Ct. R. 37.1). “Because the relevance of the matters asserted by an amicus is 4 ordinarily the most compelling reason for granting leave to file, the Committee believes that it is 5 helpful to explicitly require such a showing.” 1 6 7 8 9 10 11 As now-Justice Samuel Alito wrote while serving on the U.S. Court of Appeals for the Third Circuit, “I think that our court would be well advised to grant motions for leave to file amicus briefs unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly interpreted. I believe that this is consistent with the predominant practice in the courts of appeals.” Neonatology Assocs., P.A. v. Comm’r, 293 F.3d 128, 133 (3rd Cir. 2002) (citing Michael E. Tigar 12 and Jane B. Tigar, Federal Appeals -- Jurisdiction and Practice 181 (3d ed. 1999) and Robert L. 13 Stern, Appellate Practice in the United States 306, 307-08 (2d ed. 1989)). Now-Justice Alito 14 quoted the Tigar treatise favorably for the statement that “[e]ven when the other side refuses to 15 16 17 18 19 20 consent to an amicus filing, most courts of appeals freely grant leave to file, provided the brief is timely and well-reasoned.” 293 F.3d at 133. As explained in the next section, the accompanying brief will aid this Court. FILING THE AMICI BRIEF WILL AID THE COURT In addition to supporting the conflict-preemption arguments pressed by the United States, 21 the Municipalities and Officials make several additional related arguments that would aid this 22 Court in deciding the issues presented here: 23 First Amendment Protections. The Municipalities and Officials argue that public and 24 private employers and officials have a First Amendment right to work with federal 25 26 MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 6 1 immigration officials, thus providing another basis to find the challenged California laws 2 preempted by federal law. See Amici Br. at 6, 12. 3 Parens Patriae Standing. The Municipalities and Officials address parens patriae 4 standing to assert the interests of the People of California, a standing doctrine that lies 5 exclusively with the federal sovereign in litigation involving both state and federal 6 7 8 9 10 sovereigns. See Amici Br. at 8-9. Criminal Concealing, Harboring, and Shielding from Detection. The Municipalities and Officials analyze the challenged California laws as the criminal concealing, harboring, and shielding from detection of illegal aliens under 8 U.S.C. §1324(a)(1)(A)(iii), (v). See 11 Amici Br. at 9-11. 12 Commandeering Analysis. The Municipalities and Officials analyze the federal laws that 13 plaintiff United States seek to enforce under Tenth Amendment “commandeering” 14 15 16 17 18 analysis. See Amici Br. at 12-14. Necessary and Proper Clause. The Municipalities and Officials analyze 8 U.S.C. §1373(a) — which prohibits restricting inter-governmental communication on immigration issues — is valid under the Constitution’s Necessary and Proper Clause, U.S. 19 CONST, art. I, §8, cl. 18, even assuming arguendo that it is not valid under Congress’s 20 plenary power over immigration. See Amici Br. at 14-15. 21 For the foregoing reasons, the Municipalities and Officials respectfully submit that their amici 22 brief would aid this Court’s analysis of the important issues presented here. 23 24 25 26 CONCLUSION WHEREFORE, movants Municipalities and Officials respectfully request leave to file the accompanying amici curiae brief. MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 7 1 Dated: April 6, 2018 2 3 4 5 6 7 8 Respectfully submitted, /s/ Lawrence J. Joseph Dale L. Wilcox Sarah R. Rehberg Immigration Reform Law Institute 25 Massachusetts Avenue, NW, Suite 335 Washington, DC 20001 Tel: 202-232-5590 Fax: 202-464-3590 Email: dwilcox@irli.org Email: srehberg@irli.org Lawrence J. Joseph (SBN 154908) Law Office of Lawrence J. Joseph 1250 Connecticut Ave, NW, Suite 200 Washington, DC 20036 Tel: 202-355-9452 Fax: 202-318-2254 Email: ljoseph@larryjoseph.com Counsel for Prospective Amici Curiae 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MUNICIPALITIES & ELECTED OFFICIALS’ MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF 8 CERTIFICATE OF SERVICE 1 2 I hereby certify that on this 6th day of April, 2018, I electronically filed the foregoing 3 motion for leave to file together with the accompanying amici curiae brief, with the Clerk of the 4 Court for the United States District Court for the Eastern District of California by using the 5 CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the 6 CM/ECF system. Notice of this filing will be sent by mail to anyone unable to accept electronic 7 8 9 filing as indicated on the Notice of Electronic filing. Parties may access this filing through the Court’s CM/ECF System. 10 /s/ Lawrence J. Joseph 11 Lawrence J. Joseph (SBN 154908) 12 Law Office of Lawrence J. Joseph 1250 Connecticut Ave, NW, Suite 200 Washington, DC 20036 Tel: 202-355-9452 Fax: 202-318-2254 Email: ljoseph@larryjoseph.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE 1

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?