SB 1070 Litigation Summary

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 have been filed in the Arizona U.S. District Court contesting the law. This has created a confusing legal situation that may not be easy to grasp.
• Six of the seven cases will be decided by a single federal judge, Judge Susan Bolton. One suit is 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, this is a different case with new facts and legal issues. He is not bound by his prior decision, and he could view the 2010 case very differently from the one he heard earlier.
• Each suit asks 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 asks the Court to invalidate certain portions of S.B. 1070 which it believes to be critical, and does not bother with the rest of the statute. The other lawsuits did not reach this level of distinction between the various provisions of S.B. 1070 in the legal filings, but in oral argument are likely to limit the requests similarly.
• 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 have also asked the judge for permission to join the lawsuit alongside Tucson and its police officer and against the State.
• 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 goes into force as scheduled.
• Three of the other suits request 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.
• One suit challenges primarily the training materials of the State of Arizona being used to prepare officers for enforcement of the law.
• Named defendants sometimes vary between the cases. In many of them, the Governor and the State are 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 are also named as defendants. Who is bringing the suit, who is named as defendant, and what is being asked of the Court can make a great difference ultimately to the outcome of the case.
• In at least one of the cases, numerous non-party entities, including the Mexican government, have filed briefs as "friends of the Court".
• The Governor and through her the State have private attorney representation, and the Attorney General, who is of a different political party than the Governor, has been relieved of duties to defend. He did not object.
• Defendants have moved to dismiss the suits in several of the cases.
• It is possible that the initial legal battles will not yield a clear cut result in any given case. In other words, at the District Court level, a judge could both deny a preliminary injunction asked by the plaintiffs and simultaneously deny preliminary dismissal of the lawsuit as requested by the defendants. That would mean initially, neither side had yet won a real victory. The law would go into effect as written and adopted, unless and until the judge decided otherwise, and there would be other hearings and proceedings while officers went about enforcing SB 1070.
• Absent an initial selection of one or two cases to be treated as more important than the others, with deferral of the rest, it will be hard to have a discernable overall result at the District Court level, which could be frustrating. Even in cases that are being heard before a single judge, one side in one case might prevail and the same type of party in another fail, because of the differences of substance or style between the cases and their prosecutions. It is also possible that the judge could initially grant a preliminary injunction or dismiss a particular case, giving a quick victory to one side or the other in that single case, but a reversal on appeal of that case or a contrary District Court result in another case could render the victory fleeting. The famous dictum,"it ain't over 'til it's over" aptly applies, and there may even be dispute at any given time whether it really is over yet or not unless the attorneys and the judges agree on an overall strategy to manage the cases.
• 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 involves a Phoenix police officer who claims 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 violates the officer's own civil rights because he will be forced to violate federal law if he enforces state law and he could be sued for it or fired if he did not. He is asking for the court to enter a preliminary injunction to prevent the law from going into effect until the court can hear and decide the case on the merits. The Governor and the State have asked the Court to dismiss the case as being improperly brought. They assert 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.

The District Court has made no ruling on the first case, and will hear two more cases on July 22, 2010. In the first case, which seeks class action status, attorneys for the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund argue that S.B. 1070 unlawfully regulates immigration that is reserved to the federal government, will result in widespread racial profiling, and will 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 to be heard on July 22, 2010 is United States v. State of Arizona, No. 10-01413 (D. Ariz. filed July 6, 2010). Unlike the other cases, it focuses 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. For the moment at least, it does 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.

It is likely that the Court will rule on several or all of the three cases within days after the July 22, 2010 hearings to provide a decision to the parties prior to the scheduled effective date of S.B. 1070 of July 29, 2010. But it is unlikely that the judge will hear and rule on the contentions of all of the parties in all of the cases before making a decision on the ones heard or scheduled for July 22, 2010. Time is effectively running out for an injunction as a practical matter.

Because the law has not yet gone into effect, the plaintiffs are mounting an attack in the abstract, called a facial challenge, without any historical data to show how the law will be implemented in practice, which is somewhat speculative. However, the Government's lawsuit, by limiting itself to the issues of federalism, lends itself better to a facial attack. Regardless of how the state law is enforced in practice, under this line of reasoning, if it encroaches on the reserved powers of the federal government, it must be enjoined initially and ultimately declared invalid. For this reason, the lawsuit brought by the federal government will likely be the decisive case on S.B. 1070 before the U.S. District Court.

One disadvantage to the Government stems from the fact that it filed the case late, on July 6, 2010, long after most of the others. The defendants have until July 20, 2010 to file answering papers, which leaves the Government only a day or two before the hearing to digest the defense's position and prepare a rebuttal. This could work to the defendants' advantage. For this reason the Government requested its hearing be held on July 26, 2010, but the judge declined the request, stating that it would leave too little time before the effective date of S.B. 1070 for her to complete her ruling.

On July 22, 2010, the judge held hearings on the remaining motions before S.B. 1070 effective date. Click here to read John Messing's report of the S.B. 1070 July 22, 2010 court proceedings, which he attended and observed.

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

Appeals

On July 29, 2010, the State of Arizona appealed the preliminary injunction decision to the Ninth Circuit Court of Appeals.

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.

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