Ocean Cnty. Bd. of Comm'rs* v. Attorney Gen. of N.J.

Decision Date09 August 2021
Docket NumberNos. 20-2754 & 20-2755,s. 20-2754 & 20-2755
Citation8 F.4th 176
Parties OCEAN COUNTY BOARD OF COMMISSIONERS*; County of Ocean; Cape May County Sheriff; County of Cape May v. ATTORNEY GENERAL OF the STATE OF NEW JERSEY; State of New Jersey Office of Attorney General; Department of Law and Public Safety, Division of Criminal Justice Ocean County Board of Commissioners*; County of Ocean, Appellants in 20-2754 Cape May County Sheriff; County of Cape May, Appellants in 20-2755 *(Amended 1/29/21)
CourtU.S. Court of Appeals — Third Circuit

John C. Sahradnik, Mathew B. Thompson [Argued], Berry Sahradnik Kotzas & Benson, 212 Hooper Ave., P.O. Box 757, Toms River, NJ 08754, Counsel for County of Ocean, Ocean County Board of Commissioners, Appellants

Jeffrey R. Lindsay [Argued], Cape May County Department of Law, 4 Moore Road, DN 104, Cape May Court House, NJ 08210, Michael L. Testa, Jr., Testa Heck Testa & White P.A., 424 W. Landis Ave., Vineland, NJ 08360, Counsel for County of Cape May, Cape May County Sheriff, Appellants

Jeremy M. Feigenbaum [Argued], Michael R. Sarno, Daniel M. Vannella, Office of Attorney General of New Jersey, Richard J. Hughes Justice Complex, 25 Market Street, Trenton, NJ 08625, Counsel for Appellees

Lawrence J. Joseph, Suite 700-1A, 1250 Connecticut Ave., N.W., Washington, D.C. 20036, Attorney for Amicus Curiae Immigration Reform Law Institute in Support of Appellants County of Cape May, Cape May County Sheriff

Paul J. Fishman, Arnold & Porter Kaye Scholer LLP, One Gateway Center, Suite 1025, Newark, NJ 07102, Attorney for Amicus Curiae Constitutional, Immigration, and Criminal Law Scholars in Support of Appellees

Farrin R. Anello, American Civil Liberties Union of New Jersey Foundation, P.O. Box 32159, Newark, NJ 07102, Attorney for Amicus Curiae 47 Community Organizations in Support of Appellees

Jamison Davies, New York City Law Department, 100 Church St., New York, NY 10007, Attorney for Amicus Curiae 13 Local Governments in Support of Appellees

Mary B. McCord, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, 600 New Jersey Ave. NW, Washington, D.C. 20001, Attorney for Amicus Curiae Current and Former Prosecutors and Law Enforcement Leaders and Former Attorneys General and Department of Justice Officials in Support of Appellees

Loren L. AliKhan, Office of Attorney General of District of Columbia, 400 6th St. NW, Suite 8100, Washington, D.C. 20001, Attorney for Amicus Curiae District of Columbia, California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Virginia, Vermont, and Washington in Support of Appellees

Before: AMBRO, HARDIMAN, and PHIPPS, Circuit Judges

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal—which involves New Jersey's recent directive to limit the ability of state and local law enforcement officers to cooperate with federal immigration authorities—implicates important questions of federalism. Two New Jersey counties, a sheriff, and the oversight board of a county jail (collectively, Appellants), sued to invalidate and enjoin the directive. Appellants claim it is preempted by federal law. The District Court disagreed and dismissed their complaints. Because we agree with the District Court that federal law does not preempt the directive, we will affirm.

I

In November 2018, New Jersey Attorney General Gurbir Grewal issued Law Enforcement Directive 2018-6, also known as the Immigrant Trust Directive. See Dist. Ct. Dkt. No. 14-5. It was revised and reissued, with minimal substantive changes, the next year. Concluding "that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities," the Directive amended state rules to restrict interactions between state and local law enforcement and federal immigration officers. Id. at 2–3. As relevant here, § II-B of the Directive barred counties and local law enforcement from assisting federal immigration authorities in these ways:

2. Providing any non-public personally identifying information regarding any individual.
3. Providing access to any state, county, or local law enforcement equipment, office space, database, or property not available to the general public.
4. Providing access to a detained individual for an interview, unless the detainee signs a written consent form ....
5. Providing notice of a detained individual's upcoming release from custody ....

Id. at 5 (footnote omitted). Section II-B defined "[n]on-public personally identifying information" to include, among other things, "a social security number" and a "driver's license number." Id. at 5 n.1. The Directive also prohibited local law enforcement agencies and officials from entering "any agreement to exercise federal immigration authority pursuant to Section 287(g) of the Immigration and Nationality Act." Id. at 7 (§ III-A). And it required local law enforcement to "notify a detained individual" when federal immigration authorities requested to interview the person, to have the person detained past his or her release date, or to be informed of the person's upcoming release. Id. at 9 (§ VI-A). The Directive provided several exceptions to the limitations just described. It instructed that "[n]othing in Sections II.A or II.B shall be construed to restrict ... state, county, or local law enforcement" from "[c]omplying with all applicable federal, state, and local laws," including 8 U.S.C. §§ 1373 and 1644. Id. at 6-7 (§ II-C).

In September 2019, the County of Ocean and its Board of Commissioners (collectively, the Ocean County Plaintiffs) sued in the District Court seeking a declaratory judgment that the Directive violated the United States Constitution and New Jersey law. The Ocean County Plaintiffs argued the Directive was preempted by two federal statutes: 8 U.S.C. §§ 1373 and 1644. Section 1373 bars government officials and entities from "prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or receiving from" federal immigration authorities "information regarding the citizenship or immigration status ... of any individual." Section 1644 contains similar language: "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from" federal immigration authorities "information regarding the immigration status ... of an alien in the United States." The Ocean County Plaintiffs argued the Directive's bar on sharing personally identifying information—such as social security and drivers’ license numbers—conflicted with these federal laws. And that purported conflict rendered the Directive invalid under the Supremacy Clause of the Constitution.

The next month, the County of Cape May and its sheriff, Robert Nolan (collectively, the Cape May County Plaintiffs), filed suit advancing similar challenges to the Directive. The Cape May Plaintiffs argued broadly that §§ 1373 and 1644 preempted the Directive, and that the Directive's prohibition on § 287(g) agreements unlawfully impeded the enforcement of federal immigration law.

In November 2019, the District Court consolidated the two cases. Attorney General Grewal moved to dismiss. In July 2020, the District Court granted the motion as to the federal claims and declined to exercise supplemental jurisdiction over the state claims.1 This timely appeal followed.

II

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court's order of dismissal. Klotz v. Celentano Stadtmauer & Walentowicz LLP , 991 F.3d 458, 462 (3d Cir. 2021).

A

Before reaching the merits, we must address two threshold issues raised by the Attorney General.2 Both stem from Appellants’ political subdivision status. First, the Attorney General argues a state political subdivision—like a county—lacks standing to bring constitutional claims in federal court against the state that created it. Second, even if Article III standing exists, "as a categorical rule of constitutional law," such subdivision suits are barred. A.G. Br. 20. We disagree.

The Attorney General correctly notes that, in a line of cases dating back centuries, the Supreme Court rejected the idea that political subdivisions could pursue constitutional claims against their creator states in federal court. See, e.g. , Hunter v. Pittsburgh , 207 U.S. 161, 179, 28 S.Ct. 40, 52 L.Ed. 151 (1907) (in relation to a political subdivision, "the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States"); see also Williams v. Mayor & City Council of Balt. , 289 U.S. 36, 40, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) ; Trs. of Dartmouth Coll. v. Woodward , 17 U.S. (4 Wheat.) 518, 629–30, 4 L.Ed. 629 (1819).

Things changed, however, in 1960. In Gomillion v. Lightfoot , the Supreme Court limited the sweeping language of its earlier opinions that suggested a per se bar on political subdivision suits. 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Although the petitioners in Gomillion were individuals—not political subdivisions—the Court spoke broadly about the powers of a state legislature vis-à-vis its subdivisions. Id. at 344–45, 81 S.Ct. 125. "Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution." Id. Earlier language seemingly to the contrary, the Court cautioned, "must not be applied out of context." Id. at 344, 81 S.Ct. 125. The "unconfined dicta" from cases like Hunter confirms only "that the State's authority is unrestrained by the particular prohibitions of the Constitution considered in those cases ." Id. (emphasis added). Critical to this appeal, none of the early cases barring subdivision suits addressed the Supremacy Clause.

Si...

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