Arizona Contractors Ass'n Inc. v. Candelaria, CV07-02496-PHX-NVW.
| Decision Date | 07 February 2008 |
| Docket Number | No. CV07-02496-PHX-NVW.,No. CV07-02518-PHIL-NVW.,CV07-02496-PHX-NVW.,CV07-02518-PHIL-NVW. |
| Citation | 534 F.Supp.2d 1036 |
| Parties | ARIZONA CONTRACTORS ASSOCIATION, INC., an Arizona nonprofit corporation; Arizona Employers for Immigration Reform, Inc., an Arizona non-profit corporation; Chamber of Commerce of the United States of America, a Washington D.C. non-profit corporation; Arizona Chamber of Commerce, an Arizona, non-profit corporation; Arizona Hispanic Chamber of Commerce, Inc., an Arizona nonprofit corporation; Arizona Farm Bureau Federation, an Arizona non-profit corporation; Arizona Restaurant and Hospitality Association, an Arizona non-profit corporation; Associated Minority Contractors of America, an Arizona non-profit limited liability company; Arizona Roofing Contractors Association, an Arizona non-profit corporation; National Roofing Contractors' Association, an Illinois not-for-profit corporation; Wake Up Arizona! Inc., an Arizona non-profit corporation; and Arizona Landscape Contractors Association, Inc., an Arizona non-profit corporation, Plaintiffs, v. Criss CANDELARIA, Apache County Attorney; Ed Rheinheimer, Cochise County Attorney; Terence C. Haner, Coconino County Attorney; Daisy Flores, Gila County Attorney; Kenny Angle, Graham County Attorney; Derek D. Rapier, Greenlee County Attorney; Martin Brannan, LaPaz County Attorney; Andrew P. Thomas, Maricopa County Attorney; Matthew J. Smith, Mohave County Attorney; James Currier, Navajo County Attorney; Barbara Lawall, Pima County Attorney; James P. Walsh, Pinal County Attorney; George Silva, Santa Cruz County Attorney; Sheila Polk, Yavapai County Attorney; Jon Smith, Yuma County Attorney; Terry Goddard, Attorney General of the State of Arizona; and Fidelis V. Garcia, Director of the Arizona Registrar of Contractors, Defendants. Valle del Sol, Inc.; Chicanos por la Causa, Inc.; and Somos America, Plaintiffs, v. Terry Goddard, in his official capacity as Attorney General of the State of Arizona; Gale Garriott, in his official capacity as the Director of the Arizona Department of Revenue; and Andrew Thomas, in his official capacity as Maricopa County Attorney, Defendants. |
| Court | U.S. District Court — District of Arizona |
Plaintiffs present a facial challenge to the validity of the Legal Arizona Workers Act ("the Act"), A.R.S. §§ 23-211 to 23-214 (Supp.2007), enacted July 2, 2007, and effective January 1, 2008. 2007 Ariz. Sess. Laws, Ch. 279. The Act provides the Superior Court of Arizona with the power to suspend or revoke the business licenses of employers who intentionally or knowingly employ unauthorized aliens. By agreement of the parties, the two cases were consolidated and accelerated for trial on January 16, 2008, on stipulated facts and written evidence. This order states findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).
These consolidated actions are refilings, with some changes in parties, of consolidated actions dismissed December 7, 2007, for lack of jurisdiction under Article III of the United States Constitution. Arizona Contractors Ass'n v. Napolitano (Arizona Contractors I), 526 F.Supp.2d 968 (D.Ariz, 2007). Plaintiffs appealed that judgment of dismissal and sought an injunction pending appeal. They concurrently filed this action (Arizona Contractors II), naming the county attorneys of Arizona as defendants and seeking a temporary restraining order and preliminary injunction against the Act's enforcement. Plaintiffs' motions for injunctions pending appeal in Arizona Contractors I and for temporary restraining orders in Arizona Contractors II were heard on December 18 and denied on December 21, 2007. (Arizona Contractors I, Doc. # 106; Arizona Contractors II, Doc. #75.)
The parties then stipulated to hold a consolidated preliminary injunction hearing and trial on the merits in this case on January 16, 2008. (Doc. # 135.) At that hearing, the County Attorney Defendants acknowledged that it would take them weeks or months to investigate complaints and initiate any proceedings under the Act. They avowed that they would carry out their duties without intentional delay, but that they could and would bring no proceedings before March. The Joint Statement of Stipulated Facts includes all of the evidence from Arizona Contractors I with extensive additions.
The Plaintiffs are the same as in Arizona Contractors I, with the addition of Plaintiff Valle Del Sol, Inc., a non-profit corporation that employs many workers in Arizona and holds various business licenses. Plaintiffs have dropped the Governor as a defendant and have added the County Attorneys and the Arizona Registrar of Contractors. In light of the rulings in Arizona Contractors I, the Defendants have stipulated not to contest Plaintiffs' standing before this court, but have reserved the right to raise the issue on appeal. (Doc # 96, 106.) The actions will be dismissed as against the Attorney General for lack of justiciable case or controversy for the reasons stated in Arizona Contractors I, which the court does not understand the Attorney General to be abandoning.
B. State and Federal Sanctions for Employing Unauthorized Workers
The court's December 7, 2007 order in Arizona Contractors I explained the implicated statutes and made findings of fact, most of which apply equally to this case. 2007 WL 4293641, at *2-7. That discussion is incorporated into this order with the following summary and the following additional and, where noted, different findings. With the benefit of additional briefing and study, the court finds it unnecessary to resolve some of the legal questions noted in its previous orders in Arizona Contractors I and raised in this case.
The federal government first created sanctions for employers of unauthorized aliens in the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359 (). States at that time had authority to enact and enforce sanctions against employers of unauthorized aliens. See De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). Indeed, at least twelve states had employer sanctions statutes that proscribed "knowing" employment of unauthorized aliens. U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST, STAFF REPORT OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 565 (1981).
IRCA expanded those state efforts to the, national level. Congress also declared that IRCA "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit or refer for a fee for, employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). Under federal enforcement of IRCA, an administrative law judge adjudicates whether an employer knowingly employed an unauthorized alien, and the decision is subject to judicial review. Congress also created an employment eligibility verification system based on Form I-9 which requires employees to swear that they have authorization to work and requires employers to examine specific identification documents for facial validity. § 1324a(b).
Congress realized that the I-9 system was imperfect. In IRCA's text, it authorized evaluation and change of the employment verification system:
The President shall provide for the monitoring and evaluation of the degree to which the employment verification system ... provides a secure system to determine employment eligibility in the United States and shall examine the suitability of existing Federal and State identification systems for use for this purpose.
To the extent that the system established under subsection (b) is found not to be a secure system to determine employment eligibility in the United States, the President shall ... implement such changes ... as may be necessary to establish a secure system to determine employment eligibility in the United States.
§ 1324a(d). Congress later passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § § 401-405, 110 Stat. 3009, 3009-655 to 3009-665 (note following 8 U.S.C. § 1324a (2000)), which directed the Attorney General to conduct three pilot programs to improve the employment verification system. In a section entitled "Voluntary Election to Participate in a Pilot Program," IIRIRA specified that "any person or other entity that conducts any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect to participate in that pilot program ... the Attorney General may not require any person or other entity to participate in a pilot program." § 402, 110 Stat. at 3009-656.
One of the systems created by IIRIRA was formerly known as the Basic Pilot. The Basic Pilot Program Extension and Expansion Act of 2003 ("Expansion Act"), Pub.L. No. 108-156, 117 Stat. 1944 (note following 8 U.S.C. § 1324a (Supp.IV. 2000)), amended IIRIRA to make the Basic Pilot available to employers in all fifty states, extend its authorization until November, 2008, and place the Secretary of Homeland Security in charge of the program. The Basic Pilot is now known as the Web Basic Pilot or E-Verify. This primarily internet-based system reports the work authorization status of a new hire to an employer by checking records at the Social Security Administration (SSA) and Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS). When the system provides a tentative nonconfirmation, the employee has an opportunity to contact SSA or USCIS, using instructions provided by the employer, to clear up his records. If the employee is successful, the E-Verify databases are updated. If the employee fails to contest the nonconfirmation or is unsuccessful in...
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