Tuesday, May 17, 2011

Federal Bank Act, Regs Preempt State Par Value Statute

A three-judge panel of the Eleventh Circuit ruled last week in Baptista v. JP Morgan Chase Bank, N.A. that Office of the Comptroller of the Currency regulations promulgated under the National Bank Act preempted Florida's "par value" statute.

Florida's statute, Fla. Stat. Sec. 655.85, specifically prohibits a bank from "settl[ing] any check drawn on it otherwise than at par."  Thus when Baptista (who had no account at Chase) was charged a $6.00 fee when she sought to cash a check drawn on a Chase account, she sued, arguing that Chase's check-cashing service fee violated Florida law.

But OCC regulations allow a national bank to "charge its customers non-interest charges and fees, including deposit account service charges."  12 C.F.R. Sec. 7.4002(a).  OCC interpretive letters define "customer" to include "any person who presents a check for payment."

The court ruled that the OCC regs conflict with, and thus preempt, Florida's par value statute, applying the preemption standard from Section 5136(b)(1)(B) of the new Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010:

State consumer financial laws are preempted, only if . . . in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al. . . . the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers . . . .

12 U.S.C. Sec. 25b(b)(1). 

The Eleventh Circuit is apparently only the second federal appeals court to rule on preemption of state par value laws.  The Fifth Circuit was the first, in Wells Fargo Bank of Texas NA v. James, a 2003 case also ruling that OCC regs and the NBA preempt.  (The Fifth Circuit applied the Barnett Bank preemption standard as part of its analysis.  The case obviously predated the preemption provision in the Dodd-Frank Act.)

SDS

May 17, 2011 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, May 16, 2011

Texas House Moves Bill to Ban Federal Pat-Downs

The Texas House of Representatives this week passed legislation that would ban TSA pat-down searches, among other actions by state and federal officers.

The legislation, H.B. 1937, states that any "public servant" commits an offense when

while acting under color of the person's office of employment without probable cause to believe the other person committed an offense:

(A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and

(B) intentionally, knowingly, or recklessly:

(i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or

(ii) touches the other person in a manner that would be offensive to a reasonable person.

The legislation also more generally bans any intentional denial or impediment by a "public servant" of "any right, privilege, power, or immunity, knowing the actor's conduct is unlawful."

The legislation defines "public servant" to include an "officer, employee, or agent of the United States."

The bill (if it were to become law)--obviously preempted by federal law creating and empowering the TSA, among other federal "public servants"--is best understood as yet another political statement by a State objecting to federal policy.  (This appears to be the first state bill passed by any house in any state legislature that would ban TSA pat-downs.)

SDS

May 16, 2011 in Federalism, Fourth Amendment, Fundamental Rights, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, May 9, 2011

NLRB Challenges Arizona's Secret Ballot for Union Representation

The National Labor Relations Board filed suit last week against the State of Arizona challenging its constitutional provision that guarantees the right to vote by secret ballot for employee representation.  The complaint alleges that Article 2, Section 37, of the Arizona Constitution--approved by Arizona voters just last November--is preempted by the National Labor Relations Act.

Article 2, Section 37, of the Arizona Constitution reads as follows:

The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

But the National Labor Relations Act permits (but does not require) secret ballot elections only in certain circumstances.  Otherwise, employees have the right to organize and to bargain collectively "through representatives of their own choosing."  29 U.S.C. Sec. 157.

The NLRB argues that the state constitution clashes with the Act:

Because Article 2, Section 37, of Arizona's constitution provides that a secret ballot election is "guaranteed" wherever federal law "permits or requires elections" (emphasis supplied), Article 2, Section 37, requires elections where federal law does not and thereby deprives private sector employees of their right to pursue the other options permitted by federal law to designate, select, or authorize representatives of their own choosing and to secure their employers' voluntary recognition of such representatives.

We posted on other states' efforts to limit collective bargaining rights here.

SDS

May 9, 2011 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Ninth Circuit Upholds Injunction Against Arizona SB1070

In its opinion issued today in United States v. Arizona, a panel of the Ninth Circuit affirmed the district court's preliminary injunction against the enforcement of four sections of the Arizona immigration statute passed a year ago and commonly known as SB 1070.  The Ninth Circuit held that the US had a likelihood of success on its federal preemption argument against these four sections based on the federal government's claim of preemption under the Supremacy Clause, Article VI.

Judge Richard Paez wrote the panel's opinion of 40 plus pages; John Noonan wrote a concurring opinion and Carlos Bea wrote a partial concurrence and partial dissent.  Sb1070

In the panel opinion, Judge Paez set out the applicable standards before turning to each section.  The discussions in each section, however, also analyzed different standards and facets of the complexity that is preemption doctrine.

As to section 2(B), Judge Paez rejected Arizona's argument that state law enforcement officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation:

On its face, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status
determined before the person is released.” Ariz. Rev. Stat. Ann. § 11-1051(B) (2010) (emphasis added). The all encompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.”

This - as well as other language in the statute - conflicted with INA, the federal law: "8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General."

As to section 3, Judge Paez found that Arizona's state criminal provision that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation" of federal law, is not authorized by federal statutes and "plainly stands in opposition to the Supreme Court's direction" regarding field preemption. 

Section 5(c), the "work" provision which makes criminal an "unauthorized alien" knowingly applying for work soliciting work in a public place, or performing work, Judge Paez stressed the Congressional rejection of work penalties in the INA, as well as Ninth Circuit precedent on this issue, and concluded that federal law "likely preempts SB1070 Section 5(C) since the state law conflicts" with Congressional intent.

Finally, in addressing Section 6 which provides that a "peace officer, without a warrant, may arrest a person if the officer has probable cause to believe"  that the "person to be arrested has committed any public offense that makes the person removable from the United States," Judge Paez found that states do not have inherent authority to enforce the civil provisions of federal immigration law.  Moreover, this section "interferes with the federal government's prerogative to make removability determinations and set priorities." 

Concurring, Judge Noonan wrote separately "to emphasize the intent of the statute and its compatibility with federal foreign policy." 

Judge Bea concurred as to Sections 3 and 5(C), but dissenting as to the other two sections, stressing that the enforcement mechanisms and the necessity of considering Congressional - - - and not Executive - - - intent.

RR

[image via]

April 11, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 8, 2010

Chamber of Commerce v. Whiting Oral Argument Analysis: An Arizona Immigration Statute Before the Supreme Court

The Court heard oral argument this morning in Chamber of Commerce v. Whiting, a constitutional challenge on Supremacy Clause/preemption grounds to the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."   The law was signed by then-governor of Arizona Janet Napolitano, who is now Secretary of Homeland Security and tasked with enforcing federal immigration law, an "irony" noted by Nina Totenberg of NPR.

The Court granted certiorari in late June to review a Ninth Circuit opinion upholding the constitutionality of the Arizona statute.  [The case was formerly known as Chamber of Commerce v. Candelaria].  While the statute at issue is not the notorious Arizona SB1070, the attention that SB1070 has garnered is not irrelevant and may have contributed to the Court's grant of certiorari.

Justice Kagan has recused herself and did not participate in today's argument.  As Solicitor General, she filed a brief on the petition for writ of certiorari; the Solicitor General's brief advocated that the writ be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by  8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”  That is precisely the issue before the Court.  Acting Solictor General Neal Katyal argued on behalf of the United States, supporting the Chamber of Commerce.

Arguing for the Chamber of Commerce Carter Phillips quickly articulated the notion that the Arizona statute provides for a “death penalty to the business” in that it might completely “eliminate the business's right to exist.”  This "right to exist" occurs because Arizona's statute relies upon a provision in the 1986 federal statute, the Immigration Reform and Control Act (“IRCA”), regarding state authority to impose sanctions through licensing and similar laws. 

"Licensing" turns out to be an ambiguous term, although in today's oral argument Kennedy admits he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments.  Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude. 

Max_Liebermann_Canning_factory
Sotomayor, however, had a different point: "how they define "license" or not is irrelevant to me."  She asked Carter Phillips to explain the preemption of the state's ability to adjudicate, which for her is the central question. 

In her argument, Mary O'Grady, Solicitor General of Arizona, emphasized the ability of the state to make determinations under the "savings clause" regarding licenses.  However, at one point, Scalia seemed to believe her argument was too narrow:

JUSTICE SCALIA: Excuse me. Are you conceding that any variation from the Federal standards for -- for criminal and civil liability is automatically precluded?
I mean, as I read the exception, it's an exception for State licensing and similar laws. And it doesn't say, "So long as those licensing and similar laws go no further than what the Federal government has done." I mean, we often allow States to impose regulatory requirements that go beyond the regulatory requirements that the Federal government has imposed, and that is not automatically considered to be preempted. So why -- why are you conceding that Arizona cannot go a whit beyond what the Federal government says?
MS. O'GRADY: Because I think what Congress preserved for us was our ability to impose sanctions, including the suspension and revocation of State laws. But I do think they established a uniform national standard. I don't think we could, for example, establish a strict liability offense in Arizona. We would have to have a scienter requirement as they have in Federal law.

Breyer expressed concern that the state law essentially encouraged discrimination in conflict with the federal statute:

JUSTICE BREYER: Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It's absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.

So Arizona comes along and says: I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That's just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent -- how do you reconcile that with Arizona's law?

If Kennedy is the deciding Justice, two of his comments to O'Grady arguing on behalf of Arizona may be indicative that the Court will conclude that the state statute is preempted:


JUSTICE KENNEDY: But you are taking the mechanism [E-VERIFY] that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that's almost a classic example of a State doing something that is inconsistent with a Federal requirement.

JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer's questions that there is a very substantial difference in Federal and State law on this point. I mean, you told about -- you know what lawsuits are about. If you are home free, a driver's license and Social Security inspection under Federal law and you're not under State law, that is a difference.

RR

[image: Max Liebermann, Women in a canning factory, 1879 via].

December 8, 2010 in Cases and Case Materials, Federalism, Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Arizona Voter Identification Law Unconstitutional as Preempted by National Voter Registration Act

A Ninth Circuit panel opinion today, with retired Justice Sandra Day O'Connor sitting by designation, has declared Arizona Proposition 200 regarding citizenship identification for voting, invalid as preempted.   Judge Sandra Ikuta begins her opinion for the majority of the panel with this description:

 

800px-Entering_Arizona_on_I-10_Westbound

Proposition 200 requires prospective voters in Arizona to present documentary proof of  citizenship in order to register to vote, Ariz. Rev. Stat. §§ 16-152, 16-166, and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz. Rev. Stat. § 16-159. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg et seq. We hold that the NVRA supersedes Proposition 200’s voter registration procedures, and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid.

 

The panel considered the preemption doctrine under Election Clause preemption rather than under Supremacy Clause preemption: "Because the Elections Clause empowered Congress to enact the NVRA,"  the preemption analysis under that Clause is applicable."   The panel derived its approach from two cases 120 years apart:  Ex Parte Siebold, 100 U.S. 371 (1879) and Foster v. Love, 522 U.S. 67 (1997).

Reading Siebold and Foster together, we derive the following approach for considering whether federal enactments under the Elections Clause displace a state’s procedures for conducting federal elections. First, as suggested in Siebold, we consider the state and federal laws as if they comprise a single system of federal election procedures.  If the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature.  With this approach in mind, we consider whether the NVRA and Proposition 200 operate harmoniously in a single procedural scheme for federal voter registration.

Opinion at 17643 (citations omitted).  The panel concluded that the state law did not operate "harmoniously" with the NVRA.

Dissenting, Judge Alex Kozinski was highly critical of the majority, ending his own opinion by writing, "Few panels are able to upset quite so many apple carts all at once. Count me out."  Dissenting Opinion at 17704.  Kozinski's argument is that the panel has evaded the law of the Circuit and weakened the rules surrounding the law of the case.  He argues that the panel is wrong not to take precedent seriously and wrong that the precedent it disregards was erronelously decided.

RR

October 26, 2010 in Current Affairs, Elections and Voting, Fundamental Rights, Opinion Analysis, Preemption | Permalink | Comments (1) | TrackBack (0)

Thursday, September 9, 2010

Third Circuit Declares Hazelton Immigration Ordinances Unconstitutional

In a closely watched case with similarities to the challenges to Arizona's SB 1070 (partially enjoined by a district judge), the Third Circuit issued a 188 page opinion today.  Upholding the district judge, the panel unanimously agreed that the two ordinances of Hazelton, Pennsylvania regulating immigration are pre-empted by the federal immigration scheme.

US_Permanent_Resident_Card_2010-05-11 The court spends considerable space discussing the Hazelton ordinances, which are also contained in a twenty page appendix.  Basically, however, there are two pertinent provisions: the "employment" ordinance and the "housing" ordinance.  While finding both unconstitutional, the Third Circuit ruled that the employment provision and housing provision must be treated separately.  The panel also found the plaintiffs had standing to challenge both of these provisions, except for the section that allowed for a private cause of action, and that some of the plaintiffs could proceed anonymously.

The employment provision makes it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and requires employer affidavits.  The Third Circuit noted that a licensing scheme is not expressly pre-empted by the federal Immigration Reform and Control Act (“IRCA”), and also that it was subject to a presumption against pre-emption.

However, the court noted that the Hazelton employment provisions upset the "careful balance" Congress crafted in the IRCA:

By imposing additional sanctions on employers who hire unauthorized aliens, while not penalizing those who discriminate, Hazleton has elected to place all of its weight on one side of the regulatory scale. This creates the exact situation that Congress feared: a system under which employers might quite rationally choose to err on the side of discriminating against job applicants they perceive to be foreign. This is inconsistent with IRCA and therefore cannot be tolerated under the Supremacy Clause.

The court thus does not demand the plaintiffs prove discrimination is occurring in Hazelton, reasoning that "Congress has already addressed that question."  The court adds that although "Congress could not have been certain that one-sided sanctions would lead to future discrimination when it enacted IRCA, it was sufficiently troubled by the likelihood to commit to preventative action."   Therefore to be "consistent with federal law, states and localities that use regulatory enactments to sanction employers who have been found guilty of employing unauthorized aliens under IRCA must impose sanctions of equal severity on employers found guilty of discriminating."

The court subjected the housing provisions to an even stricter standard, finding that they are not entitled to any presumptive constitutionality.  The court stated that through its "housing provisions, Hazleton attempts to regulate residence based solely on immigration status. Deciding which aliens may live in the United States has always been the prerogative of the federal government. Hazleton purposefully chose to enter this area of significant federal presence."  The court noted that Hazelton's ordinance must be considered in the context of all communities:  if Hazelton can pass such an ordinance, so can every locality.  (We discussed a challenge to an ordinance in Fremont, Nebraska here).

Perhaps most importantly, the court noted that Hazelton's attempt to regulate based on what it termed a "snapshot" of immigration status was problematical:

Merely because an immigrant may have a present status does not mean that this status is correct, unchangeable, or may cause the federal government to exercise its discretion to remove the immigrant.  Stitched into the fabric of Hazleton’s housing provisions, then, is either a lack of understanding or a refusal to recognize the complexities of federal immigration law. Hazleton would effectively remove from its City an alien college student the federal government has purposefully declined to initiate removal proceedings against. So too would Hazleton remove an alien battered spouse, currently unlawfully present, but eligible for adjustment of status to lawful permanent resident under the special protections Congress has afforded to battered spouses and children.

Such a rationale seems fatal for any argument that a locality is simply enforcing the federal immigration laws.

The opinion's conclusion on the employer provision, however, conflicts with the Ninth Circuit's opinion in  Chamber of Commerce of the United States v. Candelaria, on which the Supreme Court granted certiorari.  Candelaria involves the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens." 

RR

[image via]

September 9, 2010 in Current Affairs, Federalism, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 28, 2010

Immigration Laws Passed by States: Information Available

A report issued today by the National Conference of State Legislatures compiles bills proposed, vetoed, and adopted by state legislatures regarding immigration-related issues.  This is a great research tool for anyone doing scholarship or litigation in this area, as well as preparing for class.

120px-TXDOT_R20-3.svg Summaries of the enacted laws  - - - one table organized by state and another table organized by subject matter - - - are available at the NCSL website here.  (Note: the website warns that the "NCSL publication and PDF are registered with the NCSL copyright and may not be reproduced, uploaded or distributed in any way in its entirety" so only a link is provided).

There is a wealth of information in the pdf summaries and discussed on the website.  The summaries are 70 plus pages, in table form, with a bit of information and the bill number (but no hyperlink to the actual bill text).  There is also a helpful database search feature here which provides links to find the text and legislative history of bills.

The NCSL represents its members - - - state legislatures - - - as continuing to "lead the way" on immigration issues and entitles its findings "States Step Up to the Plate on Immigration."   It acknowledges the controversy that Arizona SB1070 has provoked.  It also notes that "state laws related to immigration have increased dramatically over the past decade," with 300 bills introduced (and 38 enacted) in 2005, and more than 1500 bills (and 222 enacted) in 2009.

RR

July 28, 2010 in Current Affairs, Foreign Affairs, Preemption, Supremacy Clause, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, July 26, 2010

Sanctuary Cities, Immigration, and Federal Preemption

The Obama administration is hypocritical for pursuing Arizona's law to control illegal immigration even as it ignores local governments that order employees not to ask about a person's immigration status or to report it to federal agents, critics claim.  These so-called sanctuary cities are local governments that have elected "not . . . to use their resources to enforce a federal law," according to a Justice Department spokesperson quoted in Monday's Chicago Tribune.  Critics of the administration claim that sanctuary cities run up against federal law, and are therefore preempted by federal law, every bit as much as--indeed, more than--Arizona's SB 1070.  (The Justice Department filed its complaint against Arizona alleging federal preemption earlier this month.  Judge Bolton of the District of Arizona heard arguments on the Department's motion for a preliminary injunction last week.  The law is scheduled to take effect Thursday.)

The preemption arguments against sanctuary cities are similar to the preemption arguments against SB 1070: sanctuary cities regulate in an area, immigration, that is granted exclusively to the federal government and in which the federal government has occupied the field; and sanctuary cities violate a federal prohibition against any government restricting its employees from reporting to the feds the immigration status of any individual:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. Sec. 1373(a).  The provision includes no penalties or enforcement tools.

Critics say the administration is hypocritical for suing Arizona on a preemption theory while ignoring sanctuary cities.  More than hypocrisy, though, critics charge that the administration has its priorities exactly backwards.  After all, Arizona is simply trying to enforce federal law, while sanctuary cities are actively violating it.  Sanctuary cities, and not Arizona, critics argue, ought to be the federal target. 

SDS

July 26, 2010 in Congressional Authority, Federalism, Foreign Affairs, News, Preemption | Permalink | Comments (1) | TrackBack (0)

Thursday, July 22, 2010

Immigration Ordinance in Nebraska City of Fremont Challenged

The “Immigration Ordinance” of Fremont, Nebraska prohibits  “the harboring of illegal aliens or hiring of unauthorized aliens.”  Ordinance 5165 was passed by a ballot initiative this June (by a vote of  3906  to 2908) and is scheduled to become effective July 29, 2010.

The Ordinance 5165 provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city.   The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and
in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement.

Fremont Ordinance 5165 also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration.

800px-Panoramic_View_of_Fremont,_Nebraska_1908

Interestingly, before the vote, the City of Fremont itself brought an action in state court seeking a declaratory judgment that any ordinance resulting from the ballot initiative would be unconstitutional in contravention of the Supremacy Clause. The Nebraska Supreme Court issued its opinion in April: it did not rule on the merits of the Supremacy Clause argument, holding instead that “substantive challenges to proposed initiatives are not justiciable before the measure is adopted by voters.”   (The city also argued that the ballot measure violated the state constitution’s “single subject” rule, but the Nebraska Supreme Court affirmed the lower court’s conclusion that the measure did have “one general subject- - - the regulation of illegal aliens in Fremont.”)

Two complaints have been filed in federal court challenging the constitutionality of the Ordinance.

The  ACLU Nebraska Foundation and various named plaintiffs have filed a Complaint in the US District Court for Nebraska seeking an injunction against enforcement of the Fremont Ordinance.  The complaint alleges that the Fremont Ordinance is subject to preemption under the Supremacy Clause, Article VI; that the Fremont Ordinance is unconstitutional under the Equal Protection Clause; that the Fremont Ordinance is void for vagueness under the Due Process Clause; and that the Ordinance violates the Federal Fair Housing Act and state laws regarding municipal powers.

The Complaint filed by MALDEF that includes a landlord as a named plaintiff also seeks an injunction and likewise alleges preemption and equal protection, and also includes a commerce clause claim.

In defending the lawsuits, the City of Fremont is in the unenviable position of having the complaints filed against it repeat the very arguments it previously advanced. According to the Nebraska Supreme Court opinion:

Fremont points out that courts have uniformly determined that harboring and housing provisions such as those contained in the Measure are preempted by federal law and therefore are unconstitutional. It therefore asserts that measures which are unconstitutional or void are beyond the power or authority of a municipality to enact and are therefore not subject to initiative or referendum.
The Nebraska Supreme Court followed this recitation of the city’s argument by stating:  “We point out that a measure is not unconstitutional until a court makes such a determination.”  

The federal district court in Nebraska now has the task of making such a determination.  Some of our previous discussions of preemption/Supremacy Clause and other arguments regarding immigration laws passed by states and localities are available here, here and here.  An excellent news report on the Fremont, Nebraska controversy is here.

[image: view of Fremont, Nebraska, 1908 via]

RR

July 22, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, News, Preemption, State Constitutional Law, Tenth Amendment | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 6, 2010

DOJ Files Complaint Against Arizona SB 1070 Alleging Statute Unconstitutional: Analysis

Azdhometitle4 As anticipated, the Department of Justice has filed a complaint in Arizona federal court seeking a declaration and injunction that Arizona SB 1070, the controversial statute signed into law April 23 regarding immigration is unconstitutional.  The DOJ complaint has three causes of action: the supremacy clause, preemption, and the [dormant] commerce clause.  

With the complaint, the DOJ has filed a motion for preliminary injunction and supporting memorandum [available here].  The DOJ memo concentrates on the preemption argument as the basis for the likelihood to prevail on the merits prong of the preliminary injunction standard.  (We've previously discussed the preemption arguments here).  The DOJ argues different types of preemption, including field and conflict:

In enacting a state policy of “attrition through enforcement,” Arizona’s S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the federal government’s ability to balance the variety of objectives inherent in the federal immigration system, including the federal government’s focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the “balance” struck by S.B. 1070 is not only different from that of the federal government, but it will interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute’s self serving claim that it “shall be implemented in a manner consistent with federal laws regulating immigration,” S.B. 1070 § 12, the act mandates a conflicting, Arizona-specific immigration policy – “attrition through enforcement” – and prescribes various provisions that implement that policy in conflict with federal priorities. To permit a hodgepodge of state immigration policies, such as the one Arizona has attempted in S.B. 1070, would impermissibly interfere with the federal government’s balance of uniquely national interests and priorities in a number of ways.

DOJ Memo at 23 (emphasis added).  Additionally, the memo argues that the state law interferes with United States foreign relations and foreign affairs.

The memo also highlights specific provisions of SB 1070 that it argues are preempted. The memo argues sections 2 and 6 are preempted because their mandatory requirements for determining immigration status conflict with federal law and priorities: section 2 will result in the harassment of lawfully present aliens and is therefore at odds with congressional objectives and will "burden federal resources and impede federal enforcement and policy priorities;” section 6 extends Arizona’s “warrantless arrest authority to out-of-state ‘removable’ offenses and is preempted because it will lead to the harassment of aliens.”  Section 3, the “complete or carry an alien registration document” provision is preempted because interferes with comprehensive federal alien registration law and “seeks to criminalize unlawful presence and will result in the harassment of aliens.”  Section 4, amending Arizona’s alien smuggling statute is preempted because it conflicts with federal law.  Section 5, the state criminal sanction against unauthorized aliens who solicit or perform work is preempted by the federal employer sanctions scheme, and the “transporting, harboring, or concealing provision” violates preemption and dormant commerce clause principles (the item of commerce in question being the “alien” him or herself). 

This high-profile complaint joins the other lawsuits filed alleging the unconstitutionality of SB1070, including on equal protection grounds.

{Update: Arizona immigration statute partially enjoined; here}

RR

July 6, 2010 in Commerce Clause, Current Affairs, Dormant Commerce Clause, Federalism, Foreign Affairs, Fundamental Rights, News, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 29, 2010

Cert Granted in Arizona Employer Sanction of Hiring of Undocumented Workers

The Court granted certiorari yesterday in Chamber of Commerce of the United States v. Candelaria, a case challenging the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."

Caillebotteraboteurs

The Ninth Circuit upheld the statute, affirming the district judge, noting that the statute had yet to be enforced, and observing that the challenge

is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and
the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.

In its discussion of the preemption challenge, the Ninth Circuit opinion reads like an excellent discussion of the doctrine, first distinguishing express and implied preemption, and then discussing the two categories of implied preemption: field preemption and conflict preemption.  The Ninth Circuit applied each of these doctrines to find that the state law is not preempted, even when the state law mandates the use of E-Verify when federal law arguably intended that its use be voluntary.  The Ninth Circuit also addressed the employers' due process arguments, finding that the state act provided sufficient process for employers to prevent evidence regarding an employee's status.

The Solicitor General's brief "filed in response to the Court’s order inviting the Solicitor General to express the views of the United States," advocated that the "petition for a writ of certiorari should be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by  8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”

As Kevin Johnson over at Immigration Law Prof argues:

The decision by the Court on the scope of federal preemption of state immigration laws will likely have a significant impact on the outcome of the litigation challenging Arizona Senate Bill 1070, which has provoked a firestorm of controversy.  My speculation is that the controversy helped convince the Justices to grant cert and to offer guidance on the room, if any, for state and local governments to attempt to regulate immigration and immigrants.

Certainly, there will be more discussion about Chamber of Commerce of the United States v. Candelaria.

RR

image: "The Floor Scrapers" by Gustave Caillebotte, 1875, [typo in year corrected! thanks!], via.

June 29, 2010 in Cases and Case Materials, Current Affairs, Federalism, Preemption, Travel | Permalink | Comments (3) | TrackBack (0)

Tuesday, May 4, 2010

Justice O'Connor on Arizona Immigration Law SB 1070

Arizona may have gone a little too far. 

Immigration is the province of the federal rather than state government.

Racial profiling may be a problem.

These are the sentiments of retired Justice Sandra Day O'Connor on Arizona Immigration Law SB 1070 (our most recent discussion here).  O'Connor's remarks are reported by WSJ  and SFGate (SF Chronicle) from a Q&A today at the private high school in San Francisco from which her husband graduated. 

SandraOconnor_and_GeorgeWBush_May2004

(photo: Sandra Day O'Connor with her husband, John O’Connor and President George W. Bush, May 2004 in the Oval Office; courtesy wikimedia)

RR

May 4, 2010 in Current Affairs, Equal Protection, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Saturday, May 1, 2010

Proposed Amendments to Arizona Immigration Law SB 1070

The Arizona House of Representatives has proposed amendments to the controversial Arizona Immigration Law SB 1070 signed just last week.

Arizona HB 2162 (NOW: immigration; border security) would amend SB 1070 as follows:

  • Changes “lawful contact” to “lawful stop, detention or arrest.” Picture 6  
  • Stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.
  • Stipulates that a reasonable attempt must be made, when practicable, to determine the immigration status of a person, except if the determination may hinder or obstruct an investigation when reasonable suspicion exists that the person is an alien and is unlawfully present in the U.S.
  • Removes “solely” from the provision relating the prohibition on discriminatory enforcement.
  • Stipulates that for the Enforcement of Immigration Law, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens the immigration status may be determined by:
  •  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
  •  ICE or CBP pursuant to 8 U.S.C. § 1373(c).
  •  Specifies that 8 U.S.C § 1373 and 8 U.S.C § 1644 are included in the federal immigration laws relating to challenges regarding policies adopted or implemented by an entity.
  • Stipulates that for the enforcement of Willful Failure to Complete or Carry an Alien Registration Document, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens a law enforcement official or agency cannot consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

The proposed amendments address some of the equal protection and fourth amendment challenges in the complaints filed in federal district court which we discussed here and here, but do not substantially change the preemption arguments also made in the complaint which we discussed here.  Our original post is here with update here.

Arizona Republic story on the proposal here.

{Update: Arizona immigration statute partially enjoined; here}

RR

May 1, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, International, News, Preemption, Race, Supremacy Clause, Travel | Permalink | Comments (9) | TrackBack (0)

Friday, April 30, 2010

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}

RR

April 30, 2010 in Cases and Case Materials, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Procedural Due Process, Race, Reconstruction Era Amendments, Supremacy Clause | Permalink | Comments (3) | TrackBack (0)

Thursday, April 29, 2010

Complaint Challenging Constitutionality of Arizona Immigration Law SB 1070

A lawsuit challenging the constitutionality of Arizona's new immigration law SB1070 has been filed today in the United States District Court for the District of Arizona.  The  Complaint alleges violations of

  • the due process clause of the Fourteenth Amendment, 
  • the equal protection clause of the Fourteenth Amendment,
  • the speech clause of the First Amendment,
  • the Fifth Amendment,
  • the Fourth Amendment,
  • and of preemption (see our analysis here) and unauthorized or supervised federal immigration conduct.

The plaintiff, Martin Escobar, alleges he is "Hispanic" and "is employed as a permanent Police Officer with the City of Tucson for the Tucson Police Department."

Picture 2

The Arizona Star story is here.  See more discussions of SB1070 here.

[UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here].

RR

April 29, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Preemption | Permalink | Comments (3) | TrackBack (0)

Wednesday, April 28, 2010

Arizona's Immigration Law, Supremacy, and Federal Preemption

Does Arizona's new immigration law, SB 1070, violate the Supremacy Clause of the U.S. Constitution?  It may, in (at least) two ways.

SEE ALSO THE UPDATES AT THE END OF THIS POST.

First, Arizona's immigration law, which authorizes state and local law enforcement officials to inquire into the immigration status of any person "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States," runs up against the comprehensive federal scheme in Title 8 U.S.C. that governs treatment of aliens.  Congress enacted Title 8 pursuant to its plenary power under Article I, Section 8 of the Constitution to "establish a uniform Rule of Naturalization . . . throughout the United States."  The federal scheme reflects Congress's judgment to completely occupy the field of immigration and naturalization (with an important exception, discussed below)--a judgment that is well within its powers until Article I, Section 8--and the comprehensive federal scheme therefore likely preempts Arizona's new law.  The new law is almost certainly invalid under the Supremacy Clause.

But even if Arizona's new law doesn't fall under field preemption, it almost certainly falls under conflict preemption.  The federal immigration and naturalization scheme includes a place for state and local authorities.  8 U.S.C. Sec. 1252c reads:

(a) In general.  Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation.  The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role.  Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above.  Here's the provision from SB 1070:

E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

An alien's unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227.  Arizona's law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

This isn't the first time that Arizona law came under challenge as running up against federal immigration law.  Just last year, the Ninth Circuit in Chicanos por la Causa v. Napolitano upheld Arizona's Legal Worker Act against a preemption challenge.  That act allows Arizona courts to revoke or suspend business licenses of employers who knowingly or intentionally hired unauthorized aliens.  But there the federal law, which prohibited employers from hiring unauthorized aliens, contained a specific savings clause that exempted state and local sanctions related to licensing from the broader preemption of state enforcement.  Arizona's law in that case fell squarely within this savings clause, and the court ruled that the Legal Worker Act was therefore not preempted.  (The Ninth Circuit also took its lead from De Canas v. Bica, the 1976 Supreme Court case that upheld a state law prohibiting employers from hiring unauthorized aliens, because the employment relationship is "within the mainstream of the state's police powers.")

The new law is different.  It regulates aliens directly, not by way of the employer-employee relationship (which is more obviously within the traditional powers of the state).  And the new law doesn't fall within a savings clause to a broader preemption provision; instead, it seems to run directly up against the corresponding federal law.

We've posted previously on the Arizona law here and here.  Jack Balkin posts his thoughts on preemption here; Jonathan Adler responds here.

UPDATE:  The law as enacted addresses some of these problems, but it does not solve them.  Thus, for example, Section B. requires "any lawful stop, detention or arrest" (not merely "any lawful contact") by a law enforcement official "in the enforcement of any other law or ordinance of a county, city or town or this state" (not merely for no reason) in order to trigger the "reasonable suspicion" standard.  This helps dodge the second conflict problem above (under the old section E. and 8 U.S.C. Sec. 1227), but not the first one (under 8 U.S.C. Sec. 1252c).  And it does nothing to dodge the field preemption problem.

Other sections of the law, too, are likely preempted under field and conflict theories.  Thus Sections C. and D. authorize state officials to securely transport an unauthorized alien to federal authorities upon release from state prison or on the assessment of any monetary fine.  This, too, runs up against 8 U.S.C. Sec. 1252c, because it does not require a felony or deportation or departure from the country, and violates field preemption.  Section F. authorizes the state to maintain immigration records for certain purposes; this, too, probably violates field preemption.

UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here.

Update: Arizona immigration statute partially enjoined on July 28, 2010, see here.

SDS

April 28, 2010 in Federalism, News, Preemption | Permalink | Comments (16) | TrackBack (0)

Friday, April 23, 2010

Arizona Immigration Law SB 1070

The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.

Constitutional challenges are sure to follow. [update here; DEPARTMENT OF JUSTICE lawsuit analysis update here].  UPDATE: PORTIONS OF STATUTE ENJOINED BY FEDERAL DISTRICT JUDGE.

State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality.  Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government.  A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.

Beinecke_map

The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.

Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both:  "present on any public or private land in this state" and in violation of federal immigration statutes.  The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."

The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).

The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof.  MALDEF has issued a statement that it will challenge the statute.  The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.

RR

April 23, 2010 in Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Race, Supremacy Clause, Travel | Permalink | Comments (134) | TrackBack (0)

Sunday, March 14, 2010

Daylight Savings Time as Unconstitutional?

With all the current discussions of states' rights and federal power, the federally mandated change to "daylight savings time" at 2am this Sunday morning may require a constitutional discussion.

Under the Uniform Time Act of 1966, states may exempt themselves from daylight savings time, however federal law preempts state choice regarding different dates of changing from daylight savings time:

(b) State laws superseded

It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section.

729px-Milano-castello01 Congress passed the Energy Policy Act of 2005 and lengthened daylight savings time in section 110 (amending the Uniform Time Act of 1966  by striking "first Sunday of April'' and inserting "second Sunday of March''; and by striking "last Sunday of October'' and inserting "first Sunday of November"). 

However, because of the express preemption and the Supremacy Clause, states that had been perfectly happy with the previous routine of April/November had little recourse but to change to March/October.

John K Wilson has an amusing and provocative column over at Daily Kos on the constitutionality of Daylight Savings time ("It’s a typical Big Government program: steal an hour from us in March, give back our hour to us in November, and expect us to be grateful for getting back our own property").

RR

March 14, 2010 in Federalism, History, News, Preemption, Supremacy Clause | Permalink | Comments (4) | TrackBack (0)

Sunday, September 20, 2009

State Constitutional Open Courts and the Limits of Medical Liability Reform

The President famously announced last week in his healthcare address to a joint session of Congress that he would order the Agency for Healthcare and Research Quality, a division of the Department of Health and Human Services, to support state demonstration projects on medical liability reform.  The initiative appears to be an attempt to reach across the aisle to Republican opponents of the President's plan, who have argued that medical liability reform--or "tort reform"--is an essential part of any healthcare reform plan.  The President's memo for the Secretary of HHS is here.

On the very same day last week that the President sent his memo to the Secretary, the Supreme Court of Washington issued an opinion reminding us that whatever the federal government may support, there still may be some limits on medical liability reform.  Particularly, state constitutional "open courts" provisions may restrain some states in "demonstrating" their reforms.

"Open courts" provisions simply say that courts must be open and available to litigants.  Maryland's open courts provision, one of the earliest, is typical:

That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.

At least forty state constitutions have such a clause; they trace their roots directly to Magna Carta.  (The federal constitution, of course, does not have an explicit open courts clause.  But courts often look to the open courts language in Marbury v. Madison as a sign of federal constitutional protection: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection.")  State courts by and large have interpreted open courts provisions to mean that the legislature can't curtail state court claims that existed at the time of the adoption of their state's provision.  That principle seems clear enough, but these provisions get interesting against the myriad particular (and often slight, but significant) ways that states encroach on access.  (Shameless self-promotion: For more on open courts and access to justice, see my 2007 piece on open courts and the right to counsel.)

Open courts jurisprudence is notoriously muddled.  But there is one consistency:  Open courts attacks on state medical liability reform and, more generally, tort reform--strict damage caps, short statutes of limitations, and the like--have mostly failed. 

This may be all the more reason to pay attention to Washington's ruling.

Washington required plaintiffs in medical malpractice claims to file a "certificate of merit" prior to initiating suit.  The state supreme court held that this violated the state's constitutional open courts principles.  The analysis is remarkably short; it begins with the Marbury quote above, and continues:

The people have a right of access to the courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations."  This right of access to courts "includes the right of discovery authorized by the civil rules."  As we have said before, "[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense."

Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to the courts.  Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims.  Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed.  Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts.  It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people.  Accordingly, we must strike down this law.

(Citations omitted.)

There's certainly nothing unconstitutional (federal) about the federal government funding state demonstration projects related to medical liability reform.  But unless the President's demonstration program includes a preemption provision--which would seem both unlikely (because the whole point is to support new state laws experimenting with reform) and extraordinary (because it could only be designed to impede state constitutional rights that might get in the way of state reforms)--states are still bound by their constitutions.  The Washington Supreme Court's ruling is a healthy (pardon the pun) reminder that state constitutional rights are still relevant and may play an important role in state reform efforts.

SDS

September 20, 2009 in Federalism, Fundamental Rights, News, Preemption, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)