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).

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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
NO HEARING NOTICED
Complaint filed: March 6, 2018
Honorable John A. Mendez

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The thirteen California municipalities and elected officials listed herein respectfully move

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this Court for leave to file the accompanying amici curiae brief in support of the federal plaintiff’s

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motion for a preliminary injunction. The undersigned counsel have conferred with the parties’

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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

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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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amici briefs. This Court’s rules contemplate amici briefs, L.R. 5-133(h), as does this Court’s

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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). In this motion, the prospective amici seek to demonstrate their interest in these proceedings

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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:

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The City of Yorba Linda; the City of Hesperia; the City of Escondido; the City of Aliso

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Viejo; the City of Mission Viejo; the City of Fountain Valley; and the City of Barstow.

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The Hon. Mike Spence, Mayor of the City of West Covina; the Hon. David Harrington,

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Mayor of the City of Aliso Viejo; the Hon. Jim Desmond, Mayor of the City of San Marcos;

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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.

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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

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

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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

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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
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

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also purport to abridge the First amendment rights of free speech and petition, U.S. CONST. amend.

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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
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
(1906). Amici understand that other amicus briefs – including victims groups and law-enforcement

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groups – will emphasize the factual side of the risks posed by illegal aliens to public safety; as

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such, amici do not repeat those arguments here. Indeed, when factual arguments rely on aggregated

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data, they may obscure localized inconsistencies in the data: what is true in Marin County may not

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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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be true in the border areas of San Diego or Imperial Counties. Instead, amici argue for their right

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to decide for their own communities on how best to protect the public safety in their communities,

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based on the facts in their communities.2 The best allocation of municipal law-enforcement

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resources is not set in either Washington, DC, or Sacramento, but in each of the amici communities.

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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,
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.
Finally, 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

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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
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
Administrative Procedure Act, see CAL. GOV’T CODE § 11342.600 (defining regulation broadly as

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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.

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Available at https://oag.ca.gov/sites/all/files/agweb/pdfs/law_enforcement/dle-18-01.pdf
(last visited April 6, 2018).
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MUNICIPALITIES & ELECTED OFFICIALS’ MOTION
FOR LEAVE TO FILE AMICI CURIAE BRIEF

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“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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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

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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,

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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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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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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

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

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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

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ordinarily the most compelling reason for granting leave to file, the Committee believes that it is

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helpful to explicitly require such a showing.”

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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

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and Jane B. Tigar, Federal Appeals -- Jurisdiction and Practice 181 (3d ed. 1999) and Robert L.

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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

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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,

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the Municipalities and Officials make several additional related arguments that would aid this

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Court in deciding the issues presented here:

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First Amendment Protections. The Municipalities and Officials argue that public and

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private employers and officials have a First Amendment right to work with federal

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

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immigration officials, thus providing another basis to find the challenged California laws

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preempted by federal law. See Amici Br. at 6, 12.

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Parens Patriae Standing. The Municipalities and Officials address parens patriae

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standing to assert the interests of the People of California, a standing doctrine that lies

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exclusively with the federal sovereign in litigation involving both state and federal

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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

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Amici Br. at 9-11.

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Commandeering Analysis. The Municipalities and Officials analyze the federal laws that

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plaintiff United States seek to enforce under Tenth Amendment “commandeering”

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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.

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CONST, art. I, §8, cl. 18, even assuming arguendo that it is not valid under Congress’s

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plenary power over immigration. See Amici Br. at 14-15.

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For the foregoing reasons, the Municipalities and Officials respectfully submit that their amici

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brief would aid this Court’s analysis of the important issues presented here.

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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

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Dated: April 6, 2018

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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: [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 6th day of April, 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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