SB 1070 Litigation Summary
Click here to read about
S.B. 1070 on appeal.
Click here for an analysis of the provisions of Arizona's
2010 anti-Illegal Immigration Law (SB 1070).
Click here to read John
Messing's report of the S.B. 1070 July 22, 2010 court proceedings,
which he attended and observed.
1. Introduction
- Seven lawsuits were filed in the Arizona U.S. District Court contesting
the law. This created a confusing legal situation that may not be easy
to grasp.
- All seven of the cases were decided by a single federal judge, Judge
Susan Bolton. One suit was initially placed before a different judge,
Judge Neil Wake, who decided the 2007
e-Verify litigation. He ruled against the Plaintiffs and in favor
of the authorities of the State of Arizona in the earlier case. However,
the case was transferred to Judge Bolton upon a procedural technicality.
- Each suit asked the presiding District Court Judge to enter a preliminary
injunction preventing the law from going into effect on July 29, 2010
for the duration of the legal proceedings in that particular case, and
ultimately to declare the law or parts of it invalid.
- One suit was brought by the Attorney General of the United States
on behalf of the federal government, United States v. State of Arizona,
No. 10-01413 (D. Ariz. filed July 6, 2010). It only asked the Court
to invalidate certain portions of S.B. 1070 which it believed to be
critical. The other lawsuits did not reach this level of distinction
between the various provisions of S.B. 1070 in the legal filings.
- Two suits were brought by and on behalf of individual law enforcement
officers. In one of them, a civil rights organization was also a named
Plaintiff. In another, the city of Tucson, though nominally a defendant,
filed claims against the Governor and the State paralleling those of
the individual officer who brought the suit. The Arizona cities of Flagstaff,
San Luis, Somerton, and Tolleson also asked the judge for permission
to join the lawsuit alongside Tucson and its police officer and against
the State. Judge Bolton eventually dismissed these cases.
- One suit was brought by an individual, not from Arizona, based upon
plans to visit Arizona and alleged dangers to that individual from the
law if it went into force as scheduled. It was dismissed by Judge Bolton.
- Three of the other suits requested class action status. If granted,
notice to the class members will have to be given, and many more people
will be made part of a class action lawsuit, unless they individually
declare in writing to the Court that they do not want to be part of
it. Two of these suits were dismissed and one was held in part valid
but left in abeyance pending resolution of the successful suit by the
Government which is on appeal.
- One suit challenged primarily the training materials of the State
of Arizona being used to prepare officers for enforcement of the law.
It was dismissed but further proceedings to correct technical defects
are ongoing.
- Named defendants sometimes varied between the cases. In many of them,
the Governor and the State were the principal or only defendants. In
one of them, the law enforcement officers in the various counties charged
with enforcing and implementing S.B. 1070 were also named as defendants.
Who is bringing the suit, who is named as defendant, and what is being
asked of the Court were generally cured by the Governor and the State
intervening as Defendants wherever they were not specifically named..
- In a number of the cases, numerous non-party entities, including the
Mexican government, filed briefs as "friends of the Court".
- The Governor and through her the State initially had only private
attorney representation, and the Attorney General, who initially was
of a different political party than the Governor, has been relieved
of duties to defend. He did not object. In January 2011, Attorney General
Tom Horne, who is a conservative Republican like the Governor, was elected,
and since his oath of office, he has taken an active role alongside
private counsel and he filed a counterclaim against the U.S. Government,
which is pending. This is discussed below.
- Defendants moved to dismiss the suits in the cases. One case was voluntarily
dismissed by the Plaintiffs. In two of the other cases, the dismissal
motions were denied. In one case, the judge granted relief in the form
of a prelimary injunction. All the other cases were dismissed.
- The Government's case was treated as a priority, with deferral of
the other remaining case pending appellate actions.
- Regardless of result, multiple appeals to higher courts including
the U.S. Supreme Court of one or more of the cases, perhaps at several
different stages, are highly likely because of the gravity of the issues
and the emotional background of the cases.
2. Case Listings
The cases have been summarily described in somewhat technical fashion
at two different websites. Each has links to some of the important pleadings
which are posted online, avoiding the trouble and expense of finding them
and downloading them through the federal courts PACER system. However,
neither is a complete compendium of the voluminous pleadings and other
court filings, and no guarantee is made of the accuracy or recency of
the data.
Arizona
SB 1070, Legal Challenges and Economic Realities | Legal Action Center
A
Closer Look at the Seven Lawsuits Challenging Arizona Law S.B. 1070
3. Hearings
On July 15, 2010, the first hearing in the cases was held. That was in
Salgado v. Brewer, No. 10-00951 (D. Ariz., filed on April 29, 2010). Judge
Bolton heard a request to preliminarily enjoin the law by the plaintiffs
and a motion to dismiss the lawsuit by the defendants. The judge heard
from the lawyers and asked questions, but did not enter a ruling at the
conclusion of the hearing.
The case involved a Phoenix police officer who claimed S.B. 1070 violates
the rule of supremacy of federal law in controlling immigration, contradicts
a 1982 U.S. Supreme Court case that guaranteed a right to public education
to children of illegal immigrants, and violated the officer's own civil
rights because he would be forced to violate federal law if he enforced
state law and he could be sued for it or fired if he did not. He was asking
for the court to enter a preliminary injunction to prevent the law from
going into effect until the court could hear and decide the case on the
merits. The Governor and the State asked the Court to dismiss the case
as being improperly brought. They asserted that a federal district court
in these circumstances has no jurisdiction to proceed and in any event
the plaintiffs cannot show irreparable injury, which is a precondition
to the grant of a preliminary injunction.
This case was dismissed on January 13, 2011.
On July 22, 2010, the judge held hearings on the remaining motions in
the Friendly House and USA cases. Click here to read John
Messing's report of the S.B. 1070 July 22, 2010 court proceedings,
which he attended and observed. In the first case, which sought class
action status, attorneys for the American Civil Liberties Union, the National
Immigration Law Center and the Mexican American Legal Defense and Educational
Fund argued that S.B. 1070 unlawfully regulated immigration that is reserved
to the federal government, would result in widespread racial profiling,
and would unconstitutionally deprive people of their civil rights. It
is Friendly House v. Whiting, No. 10-1061 (D. Ariz. filed May 17, 2010).
A second case heard on July 22, 2010 was United States v. State of Arizona,
No. 10-01413 (D. Ariz. filed July 6, 2010). Unlike the other cases, it
focused primarily on federalism: the sovereign powers of the United States
over immigration and the limited states rights of Arizona to regulate
immigration-related matters, the impact of immigration on the foreign
policy of the United States, and the effect upon people in other states
who may travel through Arizona of S.B. 1070, and upon interstate and foreign
commerce. It did not put forth arguments about the impact of S. B. 1070
on the rights of citizens and lawful immigrants of police inquiry into
immigration status and likelihood of racial profiling, which distinguishes
it from many of the other cases.
Because the law had not yet gone into effect, the plaintiffs were mounting
an attack in the abstract, called a facial challenge, without any historical
data to show how the law would be implemented in practice, which is somewhat
speculative. However, the Government's lawsuit, by limiting itself to
the issues of federalism, lent itself better to a facial attack. Regardless
of how the state law is enforced in practice, under this line of reasoning,
if S.B. 1070 encroaches on the reserved powers of the federal government,
it must be enjoined initially and ultimately declared invalid.
4. Decision on the Preliminary Injunction Motion
On July 28, 2010, the judge granted the motion of the United States in
USA v. Arizona, No. 10-01413, for a preliminary injunction against the
most significant portions of S.B. 1070. She ruled:
Applying the proper legal standards based upon well-established
precedent, the Court finds that the United States is likely to succeed
on the merits in
showing that the following Sections of S.B. 1070 are preempted by federal
law:
Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): requiring
that an officer make a reasonable attempt to determine the immigration
status of a person stopped, detained or arrested if there is a reasonable
suspicion that the person is unlawfully present in the United States,
and requiring verification of the immigration status of any person arrested
prior to releasing that person.
Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for
the failure to apply for or carry alien registration papers.
Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating
a crime for an unauthorized alien to solicit, apply for, or perform work.
Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): authorizing the
warrantless arrest of a person where there is probable cause to believe
the person has committed a public offense that makes the person removable
from the United States.
Click here to view the text of the judge's preliminary injunction decision on S.B. 1070
5. Appeals
On July 29, 2010, the State of Arizona appealed the preliminary injunction
decision to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed
Judge Bolton, and the case was appealed, by way of writ of certiorari,
to the United States Supreme Court. Click here to read about
S.B. 1070 on appeal. While the appeals continue, the trial court proceedings
are going forward before Judge Bolton to determine the permanent aspects
of the injunction and any other legal relief.
6. Counterclaim by the Governor and State of Arizona
On February 10, 2011, the Arizona Attorney General on behalf of the the
Governor and State of Arizona filed a counterclaim. Click here to view
Counterclaim against
the United States of the Governor and State of Arizona (the text of
the Counterclaim actually begins on page 16 of the pleading).
The U.S. District Court dismissed the counterclaim in an order filed October 21, 2011, ruling that the prior decisions of the U.S. District
Court on the preliminary injunction barred the counterclaim and also that federalism concerns the dismissal. View the
court's dismissal of the SB 1070
counterclaim.
While there are some new twists to the counterclaim factually, legally
the Counterclaim differs little from similar suits that were filed by
both Arizona and California in 1997 against the immigration reforms of
the Clinton Administration. The cases were dismissed by the Arizona and
California District Court Judges, and the dismissals were finally affirmed
by the Ninth Circuit. Click here to view the decisions in the Arizona
v. USA case and California
v. USA case.
If you are concerned about immigration status of yourself, a family member,
or someone else close to you in light of S.B. 1070, please contact Messing
Law Offices for a free seven minute telephonic consultation or to
schedule an initial consultation.
At Messing Law Offices, we provide high quality legal services and expertise
to families, working men and women, and businesses. If you have a concern
in the areas of family based immigration,
business based immigration, employment
based immigration, or naturalization
and you are seeking the help of an experienced immigration lawyer, call
Messing Law Offices for professional Arizona
immigration attorney assistance.
This page is being regularly updated. Please visit us again soon to follow the
developments.
|