City of Huntington Beach vs. The State of California

Opposition

Cal. Super. - 4th Dist.April 4, 2018

184060.docx Ow O e a N n n A W N N O N N N N N N N ND mm e d e w le em e m e d e d pe d pe w c o ~ ~ O N Wn pb O W N = D 0 N N B R A W N k s ODO MICHAEL E. GATES, City Attorney (SBN 258446) MICHAEL J. VIGLIOTTA, Chief Asst. City Attorney (SBN 20 ELECTRONICALLY FILED 2000 Main Street, P.O. Box 190 Superior Court of California, Huntington Beach, CA 92648 County of Orange Tel: (714) 536-5555; Fax: (714) 374-1590 07/11/2018 at 03:58:00 PM Email: Michael Gates@surfcity-hb.org Clerk of the Superior Court Email: mvigliotta@surfcity-hb.org By & Clerk, Deputy Clerk Attorneys for Petitioner/Plaintiff, [Exempt from filing fees pursuant CITY OF HUNTINGTON BEACH To Government Code Section 6103] SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CITY OF HUNTINGTON BEACH, a California ) CASE NO. 30-2018-00984280 Charter City, ) [Case Assigned to Judge James Crandall, } Dept. C33] Petitioner/Plaintiff, ) ) PETITIONER/PLAINTIFF CITY OF ) HUNTINGTON BEACH’S VS. ) OPPOSITION TO STATE OF ) CALIFORNIA’S MOTION TO STAY ) CASE THE STATE OF CALIFORNIA; EDMUND ) GERALD BROWN JR., Governor of California, ) DATE: July 19, 2018 in his Official Capacity; XAVIER BECERRA, ) TIME: 1:30 p.m. Attorney General of California, in his Official ) DEPT. C33 Capacity, and, DOES 1 through 20, ) ) Petition/Complaint filed April 4, 2018 Respondents/Defendants. ) ) 1 PETITIONER/PLAINTIFF CITY'S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE 184060 O© 0 0 ~ 3 O N WL» HK WwW N o N o \ N o br N o NY N o N O N - -_ = -- "§ § pe - - ah mt -_ 0 ~~ ON Wn B A W N = , Oo Ww oe N N RE W N - Oo INTRODUCTION On October 3, 2017, the Governor signed into law Senate Bill 54, entitled the “California Values Act” (“SB 54”). SB 54 expressly precludes State and local law enforcement agencies, such as the City of Huntington Beach Police Department, from participating in certain Federal immigration enforcement activities. (Government Code §§ 7282 ef seq., 7284 ef seq.) Petitioner/Plaintiff City of Huntington Beach (“City”) is a Charter City, and as such has plenary authority of “municipal affairs” pursuant to the California Constitution. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 12.) Through this Action, the City has sued Respondents/Defendants State of California, ef. al., (“State”) to invalidate the unconstitutional mandates of SB 54 that impermissibly strips the City’s constitutionally protected Charter authority to conduct municipal affairs. The State is involved in two other Federal Court suits with the Federal Government concerning SB 54. Relying on these pending Federal cases, the State has brought a misguided Motion to Stay this Action, which should be denied. Code of Civil Procedure Section 430.10(c) and case law allow a court to stay a subsequently filed action where “the parties, cause of action, and issues are identical and that the same evidence would support the judgment in each case.” (California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal. App.3d 104, 163.) In this case, the City is not a party to the two Federal actions upon which the State relies, nor is the United States a party to this Action. Further, while the Federal cases arise exclusively under the United States Constitution and Federal statutes, in this Action, the City advances claims solely based upon California law. Huntington Beach has sued the State to establish that pursuant to the “municipal affairs” provision of Section 5(a) of Article XI of the California Constitution, the City is exempt from SB 54, or alternatively, that SB 54 is unconstitutional. Because this Action has different parties and claims from the Federal cases, the State’s Motion to Stay must be denied out-of-hand. 11] 111 2 PETITIONER/PLAINTIFF CITY’S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE 184060.docx OL 0 ~~ O N wn BA W N N O N RN N N N N N N mm ee he m ee ke pe e d e d et 0 0 ~~ O N L n BA W N R D O N N N R W N e OO BACKGROUND I THE CITY'S LAWSUIT The City of Huntington Beach is a Charter City,! and consequently has plenary authority over “municipal affairs.” (Calif Const, Art. XI, § 5.) As the California Supreme Court has stated, “so far as ‘municipal affairs’ are concerned,” Charter City laws are “supreme and beyond the reach of [State] legislative enactment.” (California Fed. Savings, supra, 54 Cal.3d at 12.) The core of “municipal affairs” is how the City's tax dollars will be spent (Johnson v. Bradley (1992) 4 Cal.4th 389, 407), and how it directs its police force. (Calif Const, Art. XI, § 5(b).) SB 54 unconstitutionally intrudes into the City’s municipal affairs by restricting it from using its monies and directing its police department to assist, communicate and/or cooperate in the enforcement of Federal Immigration and Naturalization laws. (Government Code § 7284.6 (a) (1).) Consequently, on April 4, 2018, the City sued the State, Governor and Attorney General on two separate grounds. First, the City contends that SB 54 violates the Municipal Affairs Doctrine of Section 5(a) of Article XI of the California Constitution. (Complaint, 7:13-9:18.) Second, SB 54 causes tortious intentional interference with the performance of City contracts. (Complaint, 9:19-10:26, and citing to Asahi Kasei Pharma Corp. v. Actelion Ltd., (2013) 222 Cal. App.4th 945, at 9:24-25.) In this Action, the City seeks a Writ of Mandamus, Declaratory Relief, and an Injunction to compel Defendants to comply with Article XI, Section 5 of the California Constitution, to not interfere with the City’s municipal affairs, and not commit the common law tort of interference with the City’s contracts. (Complaint, 11:1-15:17.) Notably, nowhere in its Complaint does the City rely upon any provision of the Federal law. II. THE FEDERAL LAWSUITS The State’s Motion to Stay is based solely upon the existence of two Federal Actions: 1 The Court is requested to take judicial notice of the City Charter, which is at www.qcode.us/codes/huntingtonbeach. (The Kennedy Com. v. City of Huntington Beach (2017) 16 Cal. App.5th 841, 852.) 3 PETITIONER/PLAINTIFF CITY’S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE 184060.docx OO 0 ~~ O N un Bs W N e e R O N N N N N N N D em pe em e e e l ee p e e d 6 6 ~ 1 O N W h Ah W R N mem O O O 0 N N DN R W N D = O United States of America v. State of California, U.S. Eastern District of California, Case No. 2:18- cv-00490-JAM-KIN, and State of California ex rel. Becerra v. Sessions, U.S. Northern District of California, Case No. 3:17-cv-04701-WHO. For the Court’s convenience, the Complaints in both Actions (without exhibits) are attached to this Opposition at Exhibits A and B, respectively. The first Action brought by the United States consists of three Causes of Action challenging the validity of SB 54, all of which rely on upon the Supremacy Clause of the Federal Constitution. (Ex. A, 16:19-21; 16:26-27, and 17:4-5.) Likewise, the State Action against the United States relies only upon provisions of the Federal Constitution and Federal statutes, including Separation of Powers, Violation of Congressional Spending authority, and Violations of the Administrative Procedures Act. (Ex. B, 21-26.) Nowhere in either Federal Action is the City of Huntington Beach named as a party plaintiff or defendant. Likewise, nowhere in the Federal Actions is there a claim premised upon California law. ONLY WHERE THERE IS AN IDENTITY OF PARTIES AND CAUSES OF ACTION BETWEEN TWO SEPARATE LAWSUITS MAY THE SECOND SUIT BE STAYED Code of Civil Procedure Section 430.10(c) authorizes bringing a special demurrer where “there is another action pending between the same parties on the same cause of action.” In interposing the special demurrer, “the defendant must show the parties, cause of action, and issues are identical and that the same evidence would support the judgment in each case.” (California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 108.) The State relies upon Mave Enterprises, Inc. v. Travelers Indemnity Co. (2013) 219 Cal. App.4th 1408 as the basis for seeking a stay, but even a brief review of the decision shows that the State’s Motion is groundless. Mave arose from an insured suing its insurer in State court on a property and business interruption claim following a fire. (Jd. at 1416.) After the parties agreed tof binding arbitration and the court was about to confirm an arbitration award in favor of the insured, the insurer filed a federal action to stay and set aside the award. (/d., at 1421.) Critically, the two lawsuits involved the same parties, and the same in rem proceeding. 4 PETITIONER/PLAINTIFF CITY'S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE 184060.docx © 0 N y nh B A R W O N N N R N N N N R N R ee e e e e e m e e e s es 0 ~~ O N hh A W N Rm, D Y N N N R w N m ODO Abatement of one of two lawsuits with identical parties and claims is only required under CCP Section 430.10(c) where both actions are filed in California State Court. Where one action is filed in California State Court, and the other in Federal Court or a Non-California State Court, then Mave holds that abatement of the second action is discretionary. (Mave, 210 Cal. App.4th at 1424.) In those circumstances, Mave holds that the court considering staying the California action should consider four separate factors, such as whether the second action was designed solely to harass an adverse party, or will cause conflicts with courts of other jurisdictions. (Id; and, see, State’s Memorandum of Points & Authorities, 4:18-5:4.) However, the State ignores that Mave espoused a critical prerequisite for a stay of the second action. Mave states that “good ground for abatement of a later action” is “predicated on the same cause of action and between the same parties.” (Id., 219 Cal. App.4th at 1423.) In this case, in one Federal Action, the United States sues California, and in the other Federal Action, California sues the United States. The City is not a party to either Action. Further, while the City sues the State in this Action, the United States is not a party to this Action. Because the Federal Actions involve different parties from this Action, and because the State’s stay request is unsupported by statutory or case law authorities otherwise addressing the same parties and same cause of action requirement, the State’s Motion must be denied. THE MOTION TO STAY MUST BE DENIED BECAUSE THE FEDERAL ACTIONS INVOLVE DIFFERENT CLAIMS FROM THIS ACTION The State’s Motion to Stay this Action also must be denied because the Causes of Action in the Federal Actions are completely unrelated to those in this State Action. As summarized above, both Federal Actions involve interpretation and application of the United States Constitution and Federal Statutes. The City’s Action requires interpretation and application of the Article 11, Section 5 of the California Constitution and State contract law. Since the City’s Action in this Superior Court presents no Federal Question, there is no jurisdictional basis to adjudicate these issues in the Federal Actions. Nowhere in its Motion does the State offer any evidence or argument that this Action offers causes of action duplicative of the Federal Actions. Instead, the State claims that if the 5 PETITIONER/PLAINTIFF CITY’S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE 184060.docx © 0 ~ 1 O N wn Bb WwW No N O N O N N O N RN N N D D = em ee ee e d p e ee e d 0 ~~ O N W n RA W N = DO Y e N O N E W N = O United States invalidates SB 54, the City would not need to comply with it. (State’s Memorandum of Points & Authorities, 5:13-15.) Finally, in its Motion, the State acknowledges that in this Action, the City relies exclusively on a State law authorities which only this Court could adjudicate, because they do not present a Federal Question providing Federal jurisdiction. (State’s Memorandum of Points & Authorities, 5:27-6:1.) In this particular case, the question of whether SB 54 applies to a Charter City is a novel question under the California Constitution because SB 54 is new legislation. In conclusion, because this Action involves different parties and causes of action from the Federal Actions, the Motion to Stay this Action must be denied. CONCLUSION For all the above reasons, the State’s Motion to Stay this Action should be denied. DATED: July 11, 2018 MICHAEL E. GATES, City Attorney , AFT MICHAEL E. GATES, City Attorney ttorney for Petitioner/Plaintiff CITY OF HUNTINGTON BEACH 6 PETITIONER/PLAINTIFF CITY’S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Case 2:18-cv-00490-JAM-KIJN Document 1 Filed 03/06/18 CHAD A. READLER Acting Assistant Attorney General MCGREGOR SCOTT United States Attorney AUGUST FLENTIJE Special Counsel WILLIAM C. PEACHEY Director EREZ REUVENI Assistant Director, Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel. (202) 307-4293 Erez.R.Reuveni@usdoj.gov DAVID SHELLEDY Civil Chief, Assistant United States Attorney LAUREN C. BINGHAM JOSEPH A. DARROW JOSHUA S. PRESS Trial Attorneys Attorneys for the United States UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA THE UNITED STATES OF AMERICA, Plaintiff, v. THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of California, in his Official Capacity; and XAVIER BECERRA, Attorney General of California, in his Official Capacity, Defendants. Plaintiff, the United States of America, by and through its undersigned counsel, brings this civil action for declaratory and injunctive relief, and alleges as follows: Complaint of the United States -1- No. 18-264 COMPLAINT Page 1 of 18 EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Complaint of the United States -2- Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 2 of 18 PRELIMINARY STATEMENT In this action, the United States seeks a declaration invalidating and preliminarily and permanently enjoining the enforcement of certain provisions of California law. These provisions are preempted by federal law and impermissibly discriminate against the] United States, and therefore violate the Supremacy Clause of the United States Constitution. The United States has undoubted, preeminent authority to regulate immigration matters, This authority derives from the United States Constitution and numerous acts of] Congress. California has no authority to enforce laws that obstruct or otherwise conflict with, or discriminate against, federal immigration enforcement efforts. This lawsuit challenges three California statutes that reflect a deliberate effort by) California to obstruct the United States’ enforcement of federal immigration law, to regulate private entities that seek to cooperate with federal authorities consistent with their obligations under federal law, and to impede consultation and communication between federal and state law enforcement officials. The first statute, the “Immigrant Worker Protection Act,” Assembly Bill 450 (“AB 4507), prohibits private employers in California from voluntarily cooperating with federal officials who seek information relevant to immigration enforcement that occurs in places of employment. The second statute, Assembly Bill 103 (“AB 103”), creates an inspection and review scheme that requires the Attorney General of California to investigate the immigration enforcement efforts of federal agents. The third statute, Senate Bill 54 (“SB 54”), which includes the “California Values Act,’] EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O 10. 11. Complaint of the United States -3- Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 3 of 18 limits the ability of state and local law enforcement officers to provide the United States with basic information about individuals who are in their custody and are subject to federal immigration custody, or to transfer such individuals to federal immigration custody. The provisions of state law at issue have the purpose and effect of making it more] difficult for federal immigration officers to carry out their responsibilities in California. The Supremacy Clause does not allow California to obstruct the United States’ ability toj enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution. Accordingly, the provisions at issue here are invalid. JURISDICTION AND VENUE The Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. Venue is proper in this jurisdiction under 28 U.S.C. § 1391(b) because Defendants reside within the Eastern District of California and because a substantial part of the acts or omissions giving rise to this Complaint arose from events occurring within this judicial district. The Court has the authority to provide the relief requested under the Supremacy Clause, U.S. Const. art. VI, cl. 2, as well as 28 U.S.C. §§ 1651, 2201, and 2202, and its inherent] equitable powers. PARTIES Plaintiff, the United States, regulates immigration under its constitutional and statutory authorities, and it enforces the immigration laws through its Executive agencies, including the Departments of Justice, State, and Labor, and the Department of Homeland] Security (DHS) including its component agencies U.S. Immigration and Customs EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O 12. 13. 14. 15. 16. 17. Complaint of the United States -4- Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 4 of 18 Enforcement (ICE), and U.S. Customs and Border Protection (CBP). Defendant State of California is a state of the United States. Defendant Edmund Gerald Brown Jr. is the Governor of the State of California and is being sued in his official capacity. Defendant Xavier Becerra is Attorney General for the State of California and is being sued in his official capacity. FEDERAL IMMIGRATION LAW The Constitution affords Congress the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3, and affords the President of the United States the authority to “take Care that the Laws be faithfully executed.” U.S. Const., art. II § 3. The Supremacy Clause of the Constitution mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . .. shall be the supreme Law of the Land . .. any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Thus, a state enactment is invalid if] it “stands as an obstacle to the accomplishment and execution of the full purposes and| objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941), or if it “discriminate[s] against the United States or those with whom it deals,” South Carolina v. Baker, 485 U.S. 505, 523 (1988). Based on its enumerated powers and its constitutional power as a sovereign to control and] conduct relations with foreign nations, the United States has broad authority to establish] immigration laws, the execution of which the States cannot obstruct or discriminate against. See Arizona v. United States, 567 U.S. 387, 394-95 (2012); accord North EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O 18. 19. PO. D1. Complaint of the United States -5- Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 5 of 18 Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality); id. at 444-47 (Scalia, J., concurring). Congress has exercised its authority to make laws governing the entry, presence, status, and removal of aliens within the United States by enacting various provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 ef seq., the Immigration Reform) and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat 3359, codified at 8 U.S.C] § 1324a et seq., and other laws regulating immigration. These laws codify the Executive Branch’s authority to inspect, investigate, arrest, detain, and remove aliens who are suspected of being, or found to be, unlawfully in the United] States. See 8 U.S.C. §§ 1182, 1225, 1226, 1227, 1228, 1231, 1357. Congress has also codified basic principles of cooperation and comity between state and local authorities and the United States. For example, federal law contemplates that removable aliens in state custody who have been convicted of state or local offenses will generally serve their state or local criminal sentences before being subject to removal, buf] that they will be taken into federal custody upon the expiration of their state prison terms. See id. §§ 1226(c), 1231(a)(1)(B)(1i1), (a)(4). “Consultation between federal and state officials is an important feature of the immigration system.” Arizona, 567 U.S. at 411. Congress has therefore directed that 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, DHS “information regarding the citizenship or immigration status of an individual.” 8 U.S.C] § 1373(a); see 8 U.S.C. § 1644 (same); see also 8 U.S.C. § 1357(g)(10)(A) (providing for state and local “communicat[ion] with [DHS] regarding the immigration status of any EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O D2. D3. D4. Complaint of the United States -6- Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 6 of 18 individual, including reporting knowledge that a particular alien is not lawfully present in| the United States). Congress also authorized states and localities “to cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Id. § 1357(g)(10)(B). Federal law also explicitly recognizes the United States’ authority to “arrange for appropriate places of detention for aliens detained pending removal or a decision onl removal,” including the lease or rental of state, local, and private facilities. See 8 U.S.C] § 1231(g); accord 8 U.S.C. § 1103(a)(11). Federal regulation provides that “[n]o person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of [DHS] (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of [DHS] and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and] executive orders.” 8 C.F.R. § 236.6. Congress, through IRCA, has also enacted a “comprehensive framework for combating the employment of illegal aliens.” Arizona, 567 U.S. at 404. IRCA makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ aliens without appropriate work authorization. See 8 U.S.C. § 1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authorization status of prospective employees. See id. § 1324a(a)(1)(B), (b). DHS enforces these requirements through criminal EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O PS. D6. RF. Complaint of the United States -7- Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 7 of 18 penalties and an escalating series of civil penalties tied to the number of times an| employer has violated the provisions. See 8 U.S.C. §§ 1324a(e)(4), (D). As a means of enforcing IRCA’s criminal and civil penalties, Congress established aj nationally uniform inspection process whereby employers are required to retain documentary evidence of authorized employment of aliens, and to permit federal investigative officers to inspect such documents. See 8 U.S.C. § 1324a(b), (e)(2)(A). DHS, through ICE and CBP, performs a significant portion of its law enforcement activities in California. In Fiscal Year 2017, ICE’s Enforcement and Removal Operations (ERO) apprehended 20,201 aliens in California alone, or roughly 14% of the aliens apprehended nationwide. Thus far in 2018, ICE ERO has apprehended 8,588 aliens in California, or roughly 14% of the aliens apprehended nationwide. Of those aliens apprehended nationwide in 2016, 2017, and thus far in 2018, 92%, 90%, and 87% respectively, were criminal aliens. In Fiscal Year 2017, ICE ERO booked a total of] 323,591 aliens into custody, 41,880 of whom were detained in California. And CBP is responsible for enforcing the immigration laws at ports of entry and areas near the border in California, including apprehending recent entrants with criminal convictions or who are national security concerns, and patrolling the border for narcotics. CALIFORNIA PROVISIONS Restrictions on Cooperation with Workplace Immigration Enforcement (AB 450) On October 5, 2017, Governor Brown signed into law the “Immigrant Worker Protection Act,” Assembly Bill 450 (AB 450), effective January 1, 2018 (Exhibit 1). Through AB 450, California regulates how private employers in California must respond to federal efforts to ensure compliance with federal immigration laws through investigations in| EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O D8. PO. BO. B1. B2. Complaint of the United States -8- Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 8 of 18 places of employment. AB 450 added Section 7285.1(a) of the California Government Code, which provides that an employer or its agent “shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless “the immigration enforcement agent provides a judicial warrant” or consent is “otherwise required by federal law.” Section 7285.2(a)(1) similarly prohibits an employer or its agent from “provid[ing] voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.” Section 7285.2(a)(2) contains an exception for certain documents for which the United States has provided a “Notice of Inspection,” Cal. Gov’t Code § 7285.2(a)(2). AB 450 added provisions to the California Labor Code that establish new requirements employers must satisfy before allowing ICE to conduct the inspection process directed by federal law. AB 450 requires employers to notify employees and their authorized representatives of upcoming inspections of employment records “within 72 hours of receiving notice of] the inspection.” Cal. Lab. Code § 90.2(a)(1). It also requires employers to provide] employees and their authorized representatives, within 72 hours, with copies of written immigration agency notices providing results of inspections. Id. § 90.2(b)(1). All these provisions are subject to a schedule of civil penalties “of two thousand dollars ($2,000) up to five thousand dollars ($5,000) for a first violation and five thousand dollars ($5,000) up to ten thousand dollars ($10,000) for each subsequent violation.” Cal. Gov’t Code §§ 7285.1(b), 7285.2(b); Cal. Lab. Code § 90.2(c). AB 450 added Section 1019.2(a) of the California Labor Code, which provides that an EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O B33. B34. BS. Complaint of the United States -9- Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 9 of 18 employer or its agent “shall not reverify the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.” Violators are subject to “a civil penalty of up to ten thousand dollars ($10,000).” Cal. Lab. Code § 1019.2(b). Upon information and belief, California law does not prohibit employers from voluntarily complying with requests from any other federal or California entities for information oj inspection, or compel employers to provide notice to their employees of other efforts to| collect information. In Fiscal Year 2017, ICE conducted approximately 1,300 worksite inspections authorized by IRCA across the country, including approximately 230 in California. If conditions are] appropriate, any of those investigations could lead to an inspection with the consent of] the employer, and often employers are very willing to provide consent in order to alleviate and address concerns that arise during the inspection process. In addition such inspections with the consent of the employer are critical to investigating cross border smuggling of people, narcotics, and terrorism. These provisions, individually and collectively, have the purpose and effect of interfering with the enforcement of the INA and IRCA’s prohibition on working without authorization. California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty. These provisions, as applied to private employers, violate the Supremacy Clause] by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement. Inspection and Review of Immigration Detention Facilities (AB 103) EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O B6. B7. BS. BO. Complaint of the United States - 10 - Case 2:18-cv-00490-JAM-KJIN Document 1 Filed 03/06/18 Page 10 of 18 Under longstanding California law, “local detention facilities” are subject to biennial inspections concerning health and safety, fire suppression preplanning, compliance with| training and funding requirements, and the types and availability of visitation. Cal. Penal Code § 6031.1(a). The law defines “local detention facilities” as any city, county, of regional facility in which individuals are confined for more than 24 hours, and includes private facilities (though it excludes certain facilities for parolees, treatment and restitution facilities, community correctional centers, and work furlough programs). Id. § 6031.4. On June 27, 2017, California enacted Assembly Bill 103 (AB 103) (Exhibit 2). Section 12 of AB 103 added Section 12532 to the California Government Code. Rather than subject facilities housing civil immigration detainees to the inspection scheme deemed sufficient for other detention facilities, the statute imposes a new set of] requirements specific to facilities housing immigration detainees. In particular, Section) 12532(a) requires the California Attorney General or his designee “to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.” The statute is not limited to an inspection of facilities. The law also requires the California Attorney General or his designee to examine the “due process provided” to civil immigration detainees, and “the circumstances around their apprehension and] transfer to the facility.” Cal. Gov’t Code § 12532(b). Section 12532(c) instructs that the California Attorney General or his designee “shall be provided all necessary access for the observations necessary to effectuate reviews required pursuant to this section, including, but not limited to, access to detainees, officials, personnel, and records.” EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 11 of 18 10. 4]. 12. 43. 4. Complaint of the United States -11- DHS, through ICE, has entered into contracts for detention services with private entities, intergovernmental services agreements (IGSAs) with county, city, or local government entities in California, and intergovernmental agreements (IGAs) with the U.S. Marshals service that provide ICE with guaranteed housing for ICE detainees as needed. ICE currently has twenty active contracts, IGSAs or IGAs, in California and regularly uses nine detention facilities in California to house civil immigration detainees in ICE custody. Information obtained or developed as a result of an agreement with the detention facility) are federal records under the control of ICE for purposes of disclosure and are subject to disclosure only pursuant to applicable federal information laws, regulations, and policies, including but not limited to the Freedom of Information Act, 5 U.S.C. § 552 ef seq., and § C.F.R. § 236.6. Three of these facilities, the Adelanto Correctional Facility, the Imperial Regional Detention Facility, and the Mesa Verde Detention Facility are dedicated facilities that] exclusively house immigration detainees. In Fiscal Year 2018, these three facilities have] had an average daily population of 1,685, 680, and 384 detainees pending the outcome of] their administrative immigration cases, respectively. The remaining facilities with IGSAs house both immigration detainees and local detainees and are used on an as-needed basis. In Fiscal Year 2018, average daily detainee] populations at the as-needed facilities have ranged between a high of 956 at Otay Mesaj Detention and a low of 171 at Rio Cosumnes Correctional Center. DHS, through ICE, houses civil immigration detainees at the Otay Mesa Detention] Center in California, a private detention facility that CoreCivic owns and operates. Otay) EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 12 of 18 15. 16. 17. 18. 19. Complaint of the United States -12- Mesa has an average daily population of around 1,000 detainees awaiting removal or a decision on removal. Upon information and belief, on November 16, 2017, Defendant Becerra initiated via letter a request to inspect various ICE detention facilities, including Imperial, Adelanto, Mesa Verde, the Theo Lacy Facility, the James A. Musick Facility, Yuba County Jail, Rio Cosumnes Correctional Center, Contra Costa West County Detention Facility, and Otay Mesa, as well as a request to inspect DHS documents concerning aliens detained in| these locations. Upon information and belief, Yuba, Rio Cosumnes, Contra Costa, Theo Lacy, and James A. Musick, have been inspected since the law’s passage On January 24, 2018, Defendant Becerra via letter informed Imperial, Adelanto, Mesa Verde, and Otay Mesa that he intended to inspect those facilities on either February 26, 2018 or March 5, 2018, and required access to documents and other material subject to ICE control and deemed privileged under federal law and regulation. See 8 C.F.R. § 236.6. Upon information and belief, California does not require any local detention facility to| comply with section 12532’s heightened inspections regime when it houses detainees for other federal or California entities. AB 103’s requirements apply only when local detention facilities house federal civil immigration detainees. AB 103 thus requires the California Attorney General to investigate the law enforcement] efforts of federal agents engaged in apprehending and transferring aliens, to assess the “due process” provided to those aliens and the “circumstances around their apprehension 2 and transfer to the facility,” and to assess the law enforcement decisions of personnel EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 13 of 18 pO. p1. p2. Complaint of the United States -13- under contract to the United States, as well as records of unspecified scope. The statute thus commands an improper, significant intrusion into federal enforcement of the immigration laws. California has no lawful interest in investigating federal law enforcement efforts. These provisions violate the Supremacy Clause by, among other] things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against the United States. Restrictions on State and Local Cooperation with Federal Officials (SB 54) On October 5, 2017, the Governor signed into law the Senate Bill 54 (SB 54), which includes the “California Values Act,” effective January 1, 2018 (Exhibit 3). SB 54 limits state and local cooperation with federal immigration enforcement in a number of ways. New Section 7284.6 prohibits state and local law enforcement officials, other than employees of the California Department of Corrections, from, among other] things: “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information,” Cal Gov’t Code § 7284.6(a)(1)(C); providing “personal information,” including (but not limited to) an individual’s home address or work address, id. § 7284.6(a)(1)(D); and “[t]ransfer[ring] an] individual to immigration authorities,” id. § 7284.6(a)(4). These provisions contain limited exceptions. State and local law enforcement may share] with the United States “information regarding a person’s release date” or respond “to requests for notification by providing release dates or other information,” but only where an individual subject to such information sharing has been convicted of a limited subset crimes, or where the information is available to the public. Cal. Gov’t Code §§ 7282.5(a)| 7284.6(a)(1)(C). Personal information also may be shared only if it is available to the EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O p3. b4. pS. Complaint of the United States - 14 - Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 14 of 18 public. Id. § 7284.6(a)(1)(D). State and local law enforcement agencies may “[t]ransfer an individual to immigration authorities” only if the United States presents a “judicial warrant or judicial probable cause determination,” or the individual in question has been convicted of one of a limited set of enumerated felonies or other serious crimes. Cal. Gov’t Code §§ 7284.6(a)(4), 7282.5(a). The limited subset of criminal violations does not match federal law governing what mayj serve as the predicate for inadmissibility or removability, including listing a set of crimes more narrow than those that render an alien removable. See 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). And it does not match the set of criminal offenses that require the federal government to detain such aliens upon their release from state or local custody. Id. § 1226(c). Upon information and belief, California law does not impose these restrictions on other forms of information sharing on other topics, nor does it restrict transfers of individuals to other law enforcement agencies in this way. These provisions impermissibly prohibit even the most basic cooperation with federal officials. As noted above, federal law contemplates that criminal aliens in state custody who may be subject to removal will complete their state or local sentences first before being detained by the United States, but that federal immigration detention for immigration proceedings or for removal will begin upon the alien’s release from state custody. 8 U.S.C. § 1226(c); § 1231(a)(4). Additionally, federal law contemplates that DHS will be able to inspect all applicants for admission, and take all appropriate action] against those found to be inadmissible to the United States, even those that may have been transferred to the custody of state and local law enforcement pending such a state] EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O D6. D7. p83. Complaint of the United States -15- Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 15 of 18 and local prosecution. See 8 U.S.C. §§ 1182, 1225(b)(2); 8 C.F.R. § 235.2. And, to facilitate coordination between state and local officials and the United States, Congress expressly prohibited any federal, state, or local government entity or official from prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from, DHS “information regarding the citizenship or immigration status of an individual.” 8 U.S.C. § 1373(a); see also 8 U.S.C. § 1644. Although SB 54 purports to be consistent with section 1373, see Cal. Gov't Code § 7284.6(e), sections 7284.6(a)(1)(C) and (D) explicitly forbid the sharing of information covered by 8 U.S.C. § 1373. The transfer restriction additionally requires that the United States present a “judicial warrant or judicial probable cause determination” before the state or locality may transfer an alien to DHS for appropriate immigration enforcement action. This provision also conflicts with federal law, which establishes a system of civil administrative warrants as the basis for immigration arrest and removal, and does not require or contemplate use of aj judicial warrant for civil immigration enforcement. See 8 U.S.C. § 1226(a), 1231(a). Upon information and belief, since January 1, 2018, law enforcement agencies in California, as defined by SB 54, will not communicate to DHS the release date or home address of aliens DHS has reason to believe are removable from the United States, or transfer such aliens to DHS custody, even where DHS presents a Congressionally- authorized civil administrative warrant of arrest or removal, see 8 U.S.C. § 1226(a); 1231(a), or has transferred those aliens to local law enforcement in the first instance to permit California or its subdivisions to criminally prosecute them for a state crime. By restricting basic information sharing and by barring the transfer to DHS of aliens in| EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 16 of 18 D9. COUNT ONE - Restrictions on Cooperation with Workplace Immigration Enforcement 60. H1. H2. H3. Complaint of the United States - 16 - state or local custody upon their release through the means provided for by federal law, SB 54 requires federal immigration officers to either engage in difficult and dangerous efforts to re-arrest aliens who were previously in state custody, endangering immigration| officers, the alien at issue, and others who may be nearby, or to determine that it is not appropriate to transfer an alien to state or local custody in the first place, in order to comply with their mission to enforce the immigration laws. California has no lawful interest in assisting removable aliens to evade federal law enforcement. These provisions violate the Supremacy Clause by, among other things, constituting an| obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement, as well as (with respect to the information- sharing restrictions) expressly violating 8 U.S.C. § 1373(a). CLAIM FOR RELIEF Plaintiff hereby incorporates paragraphs 1 through 26, and 27 through 35 of the Complaint as if fully stated herein. Sections 7285.1, and 7285.2 of the California Government Code and Sections 90.2 and 1019.2 of the California Labor Code, violate the Supremacy Clause as applied to private employers, and are invalid. COUNT TWO -- Inspection and Review of Detention Facilities Plaintiff hereby incorporates paragraphs 1 through 26, and 36 through 49 of the Complaint as if fully stated herein. Section 12532 of the California Government Code violates the Supremacy Clause, and is invalid. EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Hh4. HS. Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 17 of 18 WHEREFORE, the United States respectfully requests the following relief: I. Complaint of the United States -17 - COUNT THREE - Restrictions on State and Local Cooperation Plaintiff hereby incorporates paragraphs 1 through 26, and 50 through 59 of the Complaint as if fully stated herein. Sections 7284.6(a)(1)(C) & (D) and 7284.6(a)(4) of the California Government Code violate the Supremacy Clause and 8 U.S.C. § 1373(a), and are invalid. PRAYER FOR RELIEF That this Court enter a judgment declaring that Sections 7285.1 and 7285.2 of the] California Government Code, and Sections 90.2 and 1019.2 of the California Labor Code] violate the Supremacy Clause as applied to private employers and are therefore invalid; That this Court enter a judgment declaring that Section 12532 of the California Government Code violates the Supremacy Clause and is therefore invalid; That this Court enter a judgment declaring that Sections 7284.6(a)(1)(C) & (D) and 7284.6(a)(4) of the California Government Code violate the Supremacy Clause and are therefore invalid; That this Court issue preliminary and permanent injunctions that prohibit Defendants as well as their successors, agents, and employees, from enforcing against private employers sections 7285.1 and 7285.2 of the California Government Code, and Sections 90.2 and 1019.2 of the California Labor Code; That this Court issue preliminary and permanent injunctions that prohibit Defendants, as well as their successors, agents, and employees, from enforcing Section 12532 of the California Government Code; That this Court issue preliminary and permanent injunctions that prohibit Defendants as EXHIBIT A OO 0 NN A N nn BA W N = N N N N N N N N N m e m e m e m e m p m e m e m 0 NN O N Ln BA A W N D = O OO N N N R E W N = O Case 2:18-cv-00490-JAM-KJIJN Document 1 Filed 03/06/18 Page 18 of 18 well as their successors, agents, and employees, from enforcing Sections 7284.6(a)(1)(C) & (D) and 7284.6(a)(4) of the California Government Code; 7. That this Court award the United States its costs in this action; and 8. That this Court award any other relief it deems just and proper. DATED: March 6, 2018 Complaint of the United States - 18 - CHAD A. READLER Acting Assistant Attorney General MCGREGOR SCOTT United States Attorney AUGUST FLENTIE Special Counsel WILLIAM C. PEACHEY Director Is] Erez Reuveni EREZ REUVENI Assistant Director U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 307-4293 Fax: (202) 616-8202 E-mail: Erez.R.Reuveni@usdoj.gov DAVID SHELLEDY Civil Chief, Assistant United States Attorney LAUREN C. BINGHAM JOSEPH A. DARROW JOSHUA S. PRESS Trial Attorneys Attorneys for Plaintiff EXHIBIT A EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General MICHAEL NEWMAN Supervising Deputy Attorney General SARAH BELTON LISA EHRLICH LEE SHERMAN Deputy Attorneys General State Bar No. 272271 300 S. Spring St., Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2409 Fax: (213) 897-7605 E-mail: Lee.Sherman@doj.ca.gov Attorneys for the State of California Page 1 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION STATE OF CALIFORNIA, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California Plaintiff, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United States; ALAN R. HANSON, in his official capacity as Acting Assistant Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; and DOES 1-100, Defendants. 1 Case No. 17-cv-4701 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 2 of 25 INTRODUCTION 1. Plaintiff State of California, ex rel. Xavier Becerra, in his official capacity as Attorney General of the State (“Plaintiff”) brings this complaint to protect California from the Trump Administration’s attempt to usurp the State and its political subdivisions’ discretion to determine how to best protect public safety in their jurisdictions. The Administration has threatened to withhold congressionally appropriated federal funds unless the State and local jurisdictions acquiesce to the President’s immigration enforcement demands. This is unconstitutional and should be halted. 2. Congress has appropriated $28.3 million in law enforcement funding to California and its political subdivisions pursuant to the Edward Byrne Memorial Justice Assistance Grant (“JAG”) program. The United States Department of Justice (“USDOJ”), led by Attorney General Jefferson B. Sessions III, and the Office of Justice Programs (“OJP”), led by Acting Assistant Attorney General Alan R. Hanson (collectively, with USDOJ and Attorney General Sessions, the “Defendants”), are responsible for administering these grants. 3. JAG awards are provided to each state, and certain local jurisdictions within each state, to, among other things, support law enforcement programs, reduce recidivism, conduct prevention and education programs for at-risk youth, and support programs for crime victims and witnesses. Every state is entitled by law to a share of these funds. 4. The JAG authorizing statute, 42 U.S.C. §§ 3750-3758, requires that jurisdictions comply with “applicable Federal laws.” The statute governing OJP, 42 U.S.C. § 3712(a)(6) (“Section 3712”), also allows for the imposition of “special conditions,” which historically have been understood to refer to conditions imposed to address performance issues with particular high-risk grantees, and not as conditions to be placed on all grantees. 5. In this year’s JAG FY 2017 State Solicitation (“JAG State Solicitation”), for the first time, Defendants imposed two additional so-called “special conditions” on all JAG recipients that require compliance with immigration enforcement activities. These conditions require jurisdictions to: (a) provide federal immigration enforcement agents with the Department of Homeland Security (“DHS”) access to detention facilities to interview inmates who are “aliens” 2 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 3 of 25 or believed to be “aliens” (the “access condition”); and (b) provide 48 hours’ advance notice to DHS regarding the scheduled release date of an “alien” upon request by DHS (the “notification condition”). In effect, they attempt to create, without congressional approval, a national requirement that state and local law enforcement engage in specific behaviors to assist in the Executive’s approach to federal immigration enforcement. 6. Based on one reading of these new conditions, California believes that its laws, in fact, comply with them. Nevertheless, Defendants’ incorrect conclusions about California law have placed at risk the $28.3 million in JAG funds received by the State and its political subdivisions. The Transparency and Responsibility Using State Tools Act (“TRUST Act”), Cal. Gov’t Code § 7282 et seq., defines the circumstances in which a local law enforcement agency (“LEA”) may detain an individual at the request of federal immigration authorities. The Transparent Review of Unjust Transfers and Holds (“TRUTH Act”), Cal. Gov’t Code § 7283 et seq., provides notice protections to inmates in state and local custody whom Immigration and Customs Enforcement (“ICE”) wishes to interview. Defendant Sessions has inaccurately characterized California’s laws as denying ICE access to jails in California. 7. To compound upon the peril to the State caused by Defendant Sessions’ misinterpretation of California law, the grant conditions regarding access and notification also suffer from ambiguity. The access condition fails to specify whether jurisdictions are prohibited from notifying inmates of their basic rights prior to an ICE interview, which would conflict with the TRUTH Act. The notification condition is ambiguous as to whether it requires LEAs to hold individuals past their ordinary release when, for example, an individual is booked for a low-level infraction and promptly released, pays bail, or has his or her charges dropped. USDOIJ has signaled that it interprets the notification condition as requiring that, once immigration officials have requested notice, state and local officials may not release an individual until federal agents have had 48 hours to try to take him or her into custody-even if the federal notification request came less than 48 hours before the person’s ordinary release. To comply with this requirement, LEAs would in some instances not only have to violate the TRUST Act, but would also have to violate the Fourth Amendment-because ICE notification and detainer requests are not typically 3 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 4 of 25 supported by the probable cause required for detentions under the Fourth Amendment. 8. The ambiguity regarding how the Defendants will interpret and enforce the access and notification conditions harms California and its local jurisdictions. If California and local jurisdictions do not accept the funds authorized by the JAG statute and appropriated by Congress, important programs will need to be cut. And if this ambiguity pressures the State and/or its localities to change their public-safety oriented laws and policies in order to ensure they comply with these ambiguous conditions, they will have abandoned policies that the State and local jurisdictions have found to be effective in their communities. As a result, the State and its localities will lose control of their ability to focus their resources on fighting crime rather than federal immigration enforcement. And the trust and cooperation that the State’s laws and local ordinances are intended to build between law enforcement and immigrant communities will be eroded. 9. Moreover, while Section 3712 allows for the imposition of “special conditions,” it does not provide OJP with the authority to add these particular substantive immigration conditions. These are not special conditions, as that term is generally understood, since they are applicable to all recipients, not just high-risk grantees. In addition, they conflict with the JAG authorizing statute’s Congressional intent to: (a) guarantee the delivery of appropriated formula grant funding to particular state and local jurisdictions so long as they satisfy the requirements found in federal law; and (b) not condition funding on immigration enforcement related activities. 10. Defendants also have exceeded constitutional limits under the Spending Clause of the United States Constitution. The access and notification conditions are not sufficiently related to the federal purpose areas of the JAG funding scheme designed by Congress, and the access and notification conditions are too ambiguous to provide clear notice to the State or its political subdivisions as to what is needed to comply. And depending on how compliance is measured, the notification condition would further offend the Spending Clause prohibition on conditioning funding on unconstitutional activities, here, by attaching funding conditions that may lead to a violation of the Fourth Amendment. 11. These conditions also violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 4 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 5 of 25 et seq., because of their constitutional infirmities, and because Defendants acted in excess of their statutory authority and in an arbitrary and capricious manner. 12. The California Legislature, as well as local governments throughout the State, carefully crafted a statutory scheme that allows law enforcement resources to be allocated in the most effective manner to promote public safety for all people in California, regardless of immigration status, national origin, ancestry, or any other characteristic protected by California law. The Defendants’ actions and statements threaten that design and intrudes on the sovereignty of California and its local jurisdictions. 13. California must apply for its JAG award by August 25, 2017, and the State’s local jurisdictions that apply directly to USDOJ for JAG funding must apply by September 5, 2017, subject to the same conditions as the State. (JAG Solicitation for local jurisdictions (“JAG Local Solicitation”) attached as Exhibit B. The JAG Local Solicitation, with the JAG State Solicitation, are referred to as “JAG Solicitations.”) USDOJ is expected to provide its award notifications to state and local jurisdictions by September 30, 2017, but Defendants have announced that they will not provide any awards to jurisdictions that do not meet the access and notification conditions. California therefore immediately faces the prospect of losing $28.3 million for these “criminal justice” programs. Without this grant funding, California’s award recipients and the programs funded will be harmed, which will have a detrimental effect on state and local law enforcement and budgets. 14. For these reasons, and those discussed below, the Court should strike down the access and notification conditions in the JAG Solicitations as unconstitutional and as a violation of the APA. JURISDICTION AND VENUE 15. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 because this case involves a civil action arising under the Constitution and the laws of the United States. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action against the federal government founded upon the Constitution and an Act of Congress. Jurisdiction is proper under 5 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 6 of 25 the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-06. The Court has authority to provide relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. 16. Pursuant to 28 U.S.C. § 1391(e)(1) and (3), venue is proper in the Northern District of California because the Attorney General and the State of California have offices at 455 Golden Gate Avenue, San Francisco, California and at 1515 Clay Street, Oakland, California and Defendants have offices at 450 Golden Gate Avenue, San Francisco, California. INTRADISTRICT ASSIGNMENT 17. Assignment to the San Francisco Division of this District is proper pursuant to Civil Local Rule 3-2(c)-(d) because Plaintiff, the State of California, and Defendants both maintain offices in the District in San Francisco. PARTIES 18. Plaintiff State of California is a sovereign state in the United States of America. Xavier Becerra is the Attorney General of California, and as such, is the chief law officer in the State and has “direct supervision over every ... sheriff and over such other law enforcement officers as may be designated by laws, in all matters pertaining to their respective offices.” Cal. Const., art. V, § 13; Cal. Gov’t Code § 12500, et seq, see Pierce v. Super., 1 Cal.2d 759, 761-62 (1934) [ Attorney General “has the power to file any civil action or proceeding directly involving the rights and interests of the state. . . and the protection of public rights and interests.”]. California is aggrieved by the actions of Defendants and has standing to bring this action because of the injury to its sovereignty as a state caused by the challenged federal actions. The inclusion of unconstitutional and unlawful conditions as part of the JAG award impairs the State’s exercise of its police power in a manner it deems necessary to protect the public safety. As a result of Defendants’ unconstitutional actions, the State of California, including its political subdivisions, is in imminent danger of losing $28.3 million this fiscal year, including $17.7 million that is owed to the State itself. 19. Plaintiff Attorney General Xavier Becerra, on behalf of California, has standing to bring this action because funding for law enforcement throughout the State is at stake and as the Attorney General of the State of California, he is responsible for enforcing and protecting 6 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 7 of 25 California’s laws, such as the TRUST and TRUTH Acts, which the access and notification conditions threaten. 20. Defendant U.S. Department of Justice (“USDOJ”) is an executive department of the United States of America pursuant to 5 U.S.C. § 101 and a federal agency within the meaning of 28 U.S.C. § 2671. As such, it engages in agency action, within the meaning of 5 U.S.C. § 702 and is named as a defendant in this action pursuant to 5 U.S.C. § 702. USDOJ is responsible for administering the JAG funds appropriated by Congress. 21. Defendant Sessions III, is Attorney General of the United States, and oversees the USDQ)J, including the Office of Justice Programs (“OJP”). Defendant Sessions has declared that “[s]ome jurisdictions, including the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.” Defendant Sessions also made a statement announcing the access and notification conditions on the U.S. Department of Justice website on July 25, 2017. He is sued in his official capacity pursuant to 5 U.S.C. § 702. 22. Defendant Alan R. Hanson is Acting Assistant Attorney General in charge of the OJP, which administers JAG funding and which set forth the so-called “special conditions” at issue. He is sued in his official capacity pursuant to 5 U.S.C. § 702. 23. Each of the Defendants named in this Complaint is an agency of the United States government bearing responsibility, in whole or in part, for the acts enumerated in this Complaint. 24. The true names and capacities of Defendants identified as DOES 1-100 are unknown to Plaintiff, and Plaintiff will amend this Complaint to insert the true names and capacities of those fictitiously named Defendants when they are ascertained. FACTUAL ALLEGATIONS I. CALIFORNIA’S LAWS SEEK TO PROTECT THE STATE RESIDENTS’ SAFETY AND WELFARE BY FOCUSING LAW ENFORCEMENT ON CRIMINAL ACTIVITY AND BY BUILDING TRUST BETWEEN LAW ENFORCEMENT AND COMMUNITIES 25. California state and local LEAs, guided by the duly enacted laws of the State and ordinances of local jurisdictions, are tasked with effectively policing, protecting, and serving all 7 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 8 of 25 residents, including more than 10 million foreign-born individuals, who live in the State. California’s laws implicated in this suit, the TRUST Act and the TRUTH Act, are a valid exercise of the State’s police power to regulate regarding the health, welfare, and public safety of its residents. 26. California has also enacted other laws that strengthen community policing efforts by encouraging undocumented victims to report crimes to local law enforcement. For example, California’s Immigrant Victims of Crime Equity Act, Cal. Penal Code § 679.10, which took effect on January 1, 2016, ensures that all immigrant crime victims have equal access to the U nonimmigrant visa. Laws such as this are specifically designed to encourage immigrants to report crimes so that perpetrators are apprehended before harming others. 27. The purpose of these California laws is to ensure that law enforcement resources are focused on a core public safety mission and to build trust and cooperation between law enforcement and the State’s immigrant communities. When local and state LEAs engage in immigration enforcement, as Defendants contemplate, vulnerable victims and witnesses are less likely to come forward to report crimes. 28. California’s laws are not unique. Many jurisdictions across the country have policies that define the circumstances under which local law enforcement personnel expend time and resources in furtherance of federal immigration enforcement. Those jurisdictions variously impose limits on compliance with ICE detainer requests, ICE notification requests about release dates, and ICE’s access to detainees, or provide additional procedural protections to them. A. The TRUST Act 29. In 2013, California enacted the TRUST Act, Cal. Gov’t Code, § 7282 et seq. The TRUST Act defines the circumstances under which local LEAs may detain an individual at the request of federal immigration authorities. The TRUST Act went into effect on January 1, 2014. 30. The TRUST Act was intended to address numerous public safety concerns regarding the federal practice of issuing detainers to local law enforcement. Among the Legislature’s concerns were that federal courts have concluded that detainer requests do not provide sufficient probable cause, and data showing that detainer requests “have erroneously been placed on United States 8 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 9 of 25 citizens, as well as immigrants who are not deportable.” Assem. Bill No. 4, 1st Reg. Sess. (Cal. 2013) § 1(c). 31. The Legislature also found that “immigration detainers harm community policing efforts because immigrant residents who are victims of or witnesses to crime, including domestic violence, are less likely to report crime or cooperate with law enforcement when any contact with law enforcement could result in deportation.” Id. § 1(d). The Legislature also considered data demonstrating that the vast majority of individuals detained had no criminal history or were only convicted of minor offenses, and research establishing that “immigrants, including undocumented immigrants, do not commit crimes at higher rates than American-born residents.” Id. 32. The TRUST Act sets forth two conditions that must be met for local law enforcement to have discretion to detain a person pursuant to an “immigration hold” (also known as a “detainer request” or “detainer hold”) that occurs when a federal immigration agent requests that the law enforcement official “maintain custody of the individual for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays.” Cal. Gov’t Code § 7282(c). First, the detention cannot “violate any federal, state, or local law, or any local policy,” which includes the Fourth Amendment of the U.S. Constitution. Id. § 7282(a). Second, law enforcement officers may only detain someone with certain, specified criminal backgrounds, an individual on the California Sex and Arson Registry, or a person charged with a serious or violent felony who was the subject of a probable cause determination from a magistrate judge. Id. § 7282.5(a)(1)-(6). Only when both of these conditions are met may local law enforcement detain an individual “on the basis of an immigration hold after the individual becomes eligible for release from custody.” Id. § 7282.5(b). 33. The TRUST Act limits an LEA’s discretion as to when it may detain individuals pursuant to an immigration hold beyond their ordinary release. This limitation is consistent with federal law, in that USDOJ, DHS and the courts have repeatedly characterized detainer requests as voluntary. 34. The TRUST Act, however, does not limit, in any way, a jurisdiction from complying with notification requests so long as the jurisdiction is not required to hold the individual beyond when he or she is otherwise legally eligible for release. It also does not prohibit a jurisdiction 9 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 10 of 25 from allowing federal immigration enforcement agents to access its jails to interview inmates. B. The TRUTH Act 35. In 2016, California enacted the TRUTH Act, Cal. Gov’t Code § 7283 ef seq., which took effect on January 1, 2017. The purpose of the TRUTH Act is to increase transparency about immigration enforcement and “to promote public safety and preserve limited resources because entanglement between local law enforcement and ICE undermines community policing strategies and drains local resources.” Assem. Bill No. 2792, Reg. Sess. (Cal. 2016) § 2(a)-(c), (g)-(1). 36. Under the TRUTH Act, before an interview with ICE takes place, a local law enforcement officer must provide the detained individual with a “written consent form that explains the purpose of the interview, that the interview is voluntary, and that he or she may decline to be interviewed or may choose to be interviewed only with his or her attorney present.” Cal. Gov’t Code § 7283.1(a). In addition, when a local LEA receives a detainer hold, notification, or transfer request, the local LEA must “provide a copy of the request to the [detained] individual and inform him or her whether the law enforcement agency intends to comply with the request.” Id. § 7283.1(b). If the LEA complies with ICE’s request to notify ICE as to when the individual will be released, it must also “promptly provide the same notification in writing to the individual and to his or her attorney or to one additional person who the individual shall be permitted to designate.” Id. 37. The TRUTH Act does not limit, in any way, a jurisdiction from complying with notification requests; rather, it only requires that the jurisdiction also provide notice to the individual of its actions. It also does not prohibit a jurisdiction from allowing ICE to access its jails to interview inmates. II. CONGRESS DID NOT INTEND JAG TO BE CONDITIONED ON STATE AND LOCAL LAW ENFORCEMENT ASSISTING IN FEDERAL IMMIGRATION ENFORCEMENT 38. JAG is administered by OJP within USDOJ. JAG funding is authorized by Congress under 42 U.S.C. §§ 3750-58. The authorizing statute has been amended numerous times since its inception in 1988, evolving into the JAG program as it exists today. 39. The Anti-Drug Abuse Act of 1988 amended the Omnibus Crime Control and Safe Streets Act of 1968 to create the Edward Byrne Memorial State and Local Law Enforcement Assistance 10 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 11 of 25 Programs grants (“Byrne Grants”) “to assist States and units of local government in carrying out specific programs which offer a high probability of improving the functioning of the criminal justice system.” Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, tit. VI, § 6091(a), 102 Stat. 4181 (1988) (repealed 2006). Congress placed a “special emphasis” on programs that support national drug control priorities across states and jurisdictions. Id. Congress identified 21 “purpose areas” for which Byrne Grants could be used. Many of the purpose areas relate to the investigation, enforcement, and prosecution of drug offenses. See id., tit. V, § 5104. Immigration enforcement was never specified in any of the grant purpose areas. 40. In amendments between 1994 and 2000, Congress identified eight more purpose areas for which Byrne funding could be used, bringing the total to 29. 42 U.S.C. § 3751(b) (as it existed on Dec. 21, 2000) (repealed 2006). For Fiscal Year 1996, Congress separately authorized Local Law Enforcement Block Grants (“LLEBG”) that directed payment to units of local government for the purpose of hiring more police officers or “reducing crime and improving public safety.” Local Government Law Enforcement Block Grants Act of 1995, H.R. 728, 104th Cong. (1995). Congress identified eight “purpose areas” for LLEBG, none of which were immigration enforcement. 41. The Byrne Grant and LLEBG programs were then merged to eliminate duplication, improve their administration, and to provide State and local governments “more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution” to local law enforcement. Pub. L. No. 108-447, 118 Stat. 2809 (2004); H.R. Rep. No. 109-233, at 89 (2005); see also 42 U.S.C. § 3750(a), (b)(1). 42. Now the JAG authorizing statute enumerates eight purpose areas for: (A) law enforcement programs; (B) prosecution and court programs; (C) prevention and education programs; (D) corrections and community corrections programs; (E) drug treatments and enforcement programs; (F) planning, evaluation, and technology improvement programs; (G) crime victim and witness programs; and (H) mental health programs related to law enforcement and corrections. 42 U.S.C. §3751(a)(1). 43. The purpose areas for these grants are to support “criminal justice” programs; 11 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 12 of 25 immigration enforcement is generally civil in nature. See Arizona v. U.S., 567 U.S. 387, 396 (2012). Immigration enforcement was also never specified in the purpose areas for any of these grants throughout this entire legislative history. 44. In 2006, Congress repealed the only immigration-related requirement that had ever existed for JAG funding, a requirement that the chief executive officer of the state receiving JAG funding provide certified records of criminal convictions of “aliens.” See Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, tit. IIL, § 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed 2006). The repeal of this provision evidences Congress’ intent not to condition JAG funding on immigration enforcement-related activities. This is consistent with the statutory scheme that does not include a purpose area connected to immigration enforcement. 45. In addition, more recently, Congress has considered but declined to adopt legislation that would penalize cities for setting their own law enforcement priorities and attempting to impose conditions similar to the conditions here.’ III. THE JAG AUTHORIZING STRUCTURE REQUIRES THAT STATE AND LOCAL JURISDICTIONS RECEIVE FORMULA GRANTS A. The JAG Formula Structure and Conditions 46. When creating the merged JAG funding structure in 2006, Congress set a formula to apportion JAG funds to state and local jurisdictions. 42 U.S.C. § 3755. Population and violent crime rates are used to calculate each state’s allocation. 42 U.S.C. § 3755(a)(1). Congress guarantees to each state a minimum allocation of JAG funds. 42 U.S.C. § 3755(a)(2). 47. In addition to determining the amount of money received by grantees within each state, Congress set forth how that money is to be shared between state and local jurisdictions. Under the statutory formula, 60 percent of the total allocation to a state must be given directly to the state. 42 U.S.C. § 3755(b)(1). ! See, e.g., Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016) (cloture on the motion to proceed rejected). 12 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 13 of 25 48. The statutory formula also provides that 40 percent of the total allocation to a state must be given to local governments within the state. 42 U.S.C. § 3755(d)(1). Each unit of local government receives funds based on its crime rate. 42 U.S.C. § 3755(d)(2)(A). 49. According to Congress’s JAG funding scheme, states and local governments that apply for JAG funds are required to make limited certifications and assurances. Beyond ministerial requirements identified in the authorizing statute, the chief executive officer of each applicant must certify that: (A) the law enforcement programs to be funded meet all requirements of the JAG authorizing statute; (B) all information in the application is correct; (C) there was coordination with affected agencies; and (D) the applicant will comply with all provisions of the JAG authorizing statute. 42 U.S.C. § 3752(a)(5). 50. Congress has enacted reductions or penalties in JAG funds when certain conditions occur, such as a state failing to substantially implement the Sex Offender Registration and Notification Act or a governor not certifying compliance with the national Prison Rape Elimination Act standards. See 42 U.S.C. §§ 16925, 15607(e)(2). Unlike the access and notification conditions, these conditions were explicitly added by Congress. B. California’s Allocation and Use of the JAG Award 51. Based on the formula prescribed by statute, California is expected to receive approximately $28.3 million in JAG funding in FY 2017, with $17.7 million going to the Board of State and Community Corrections (“BSCC”), the entity that receives the formula grant funds that are allocated to the State. 52. BSCC disburses JAG funding using subgrants predominately to local jurisdictions throughout California to fund programs that meet the purpose areas identified in the JAG authorizing statute. Between FY 2015-17, BSCC funded 32 local jurisdictions and the California Department of Justice. 53. In the past, BSCC prioritized subgrants to those jurisdictions that focus on education and crime prevention programs, law enforcement programs, and court programs, including indigent defense. Some examples of California jurisdictions’ purpose-driven use of JAG funds include: (a) implementing educational programs to improve educational outcomes, increase graduation 13 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 14 of 25 rates, and curb truancy; (b) providing youth and adult gang members with multi-disciplinary education, employment, treatment, and other support services to prevent gang involvement, reduce substance abuse, and curtail delinquency and recidivism; (c¢) implementing school-wide prevention and intervention initiatives for some of the county’s highest-risk students; (d) providing comprehensive post-dispositional advocacy and reentry services to improve outcomes and reduce recidivism for juvenile probationers; (e) providing a continuum of detention alternatives to juvenile offenders who do not require secure detention, which includes assessment, referral, case advocacy, home detention, reporting centers, non-secure, shelter, intensive case management and wraparound family support services; and (f) funding diversion and re-entry programs for both minors and young adult offenders. IV. OJP HAS EXCEEDED ITS STATUTORY AUTHORITY BY IMPOSING THE NEW CONDITIONS A. Description of the JAG Solicitation 54. On July 25, 2017, OJP announced the FY 2017 State JAG Solicitation. OJP set the deadline for applications as August 25, 2017. On August 3, 2017, OJP announced the FY 2017 JAG Local Solicitation with a deadline of September 5, 2017. 55. In the JAG Solicitations, for the first time in Fiscal Year 2017, OJP announced two additional substantive “special conditions” related to federal immigration enforcement. To receive a JAG award, jurisdictions must: e permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an “alien” (or an individual believed to be an “alien”) and inquire as to his or her right to be or remain in the United States (the “access condition’); and e provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an “alien” in the jurisdiction’s custody when DHS requests such notice in order to take custody of the individual pursuant to the Immigration and Nationality Act (the “notification condition”). Exh. A, at 32. Both of these conditions exist in the State and Local JAG Solicitations. 14 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 15 of 25 56. Grant recipients, including the BSCC, must execute “Certified Standard Assurances” that it “will comply with all award requirements,” including the access and notification conditions. See id. at Appx. IV. 57. Subgrantees must assure that they will comply with all award conditions, including the access and notification conditions. See id. at 20-21. 58. Based on information and belief, the state recipient must execute the Certified Standard Assurances by the application deadline on August 25, 2017. “OJP expects to issue award notifications by September 30, 2017.” Id. at 31. 59. At no point has USDOJ or OJP provided any explanation as to how the access and notification conditions relate to Congress’s intent in authorizing JAG. B. OJP Lacks Statutory Authority to Impose “Special Conditions” of this Type 60. JAG’s authorizing statute provides no authority for OJP to impose the access and notification conditions (the so-called “special conditions”) on all grant recipients. Indeed, the same statute that authorizes JAG funding, the Omnibus Crime Control and Safe Streets Act of 1968, also authorizes funding pursuant to the Violence Against Women Act (“VAWA?”) that permits the Attorney General to “impose reasonable conditions on grant awards.” 42 U.S.C. § 3796gg-1(e)(3). Congress’s clear direction to USDOJ to add “reasonable conditions” pursuant to VAWA, but not for JAG, strongly indicates that Congress did not intend to confer discretion on OJP to add unlimited substantive conditions at its whim. 61. Although nothing related to the access and notification conditions is found within the statutory text or legislative history related to JAG, OJP claims it has the authority to add these conditions under Section 3712, which allows OJP to add “special conditions on all grants.” 62. OJP’s basis for using its purported authority to add these conditions here, without limitation, is statutorily and constitutionally flawed. 63. In 2006, when Section 3712 was amended to permit OJP to “plac[e] special conditions on all grants,” the term “special conditions” had a precise meaning. According to a USDOJ regulation in place at the time, the agency could impose “special grant or subgrant conditions” on 15 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 16 of 25 “high-risk grantees” if the grant applicant: (a) had a history of poor performance; (b) was not financially stable; (c) had a management system that did not meet certain federal standards; (d) had not conformed to the terms and conditions of a previous grant award; or (¢) was not otherwise responsible. 28 C.F.R. § 66.12 (removed December 25, 2014). This language was based on the grants management common rule adopted by the Office of Management and Budget (“OMB”), and followed by “all Federal agencies” when administering grants to state and local governments. OMB Circular A-102 (as amended Aug. 29, 1997). Other federal statutes and regulations have also historically identified “special conditions” as those that federal agencies may place on particular high-risk grantees who have struggled or failed to comply with grant conditions in the past, not on all grantees irrespective of performance. 64. Interpreting OJP’s authority to permit it to impose any substantive conditions with respect to formula grants, like JAG, beyond what is allowed under federal law further conflicts with Congressional intent in establishing a prescribed formula grant structure. Congress designed JAG so that “each State” receives an allocation according to a precise statutory formula. 42 U.S.C. § 3755(a) (emphasis added). Likewise, Congress’s formula provides allocation to “each unit of local government.” 42 U.S.C. § 3755(d)(2) (emphasis added). As such, if USDOJ makes grants from funds that Congress appropriated to JAG, OJP must disburse the funds according to the statutory formula enacted by Congress so long as the jurisdiction complies with the conditions that exist in federal law. 65. The conditions also conflict with the immigration enforcement scheme set forth by Congress in the Immigration and Naturalization Act (“INA”) that makes cooperation with immigration enforcement agencies voluntary. There is no provision in the INA, or any federal law, that requires jurisdictions to assist with otherwise voluntary immigration enforcement related activities in order to receive these federal funds. 66. While USDOJ has the ability to add conditions to JAG awards, it cannot add substantive grant conditions such as these, that are not tethered to any federal statute. For instance, it could add “special conditions” for high-risk grantees as described above. It could add conditions that stem from the authorizing JAG statute. And it could add conditions that Congress directed be 16 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 17 of 25 applied to federally funded programs. See, e.g., 42 U.S.C. § 2000d-1; 29 U.S.C. § 794(a)(1); 20 U.S.C. § 1681(a)(1); 42 U.S.C. § 6102. C. The Access and Notification Conditions do not Provide Jurisdictions with Clear Notice of what the Conditions Require 67. It is ambiguous what the access and notification conditions require grant recipients to do. For example, it is unclear whether the condition requiring jurisdictions to provide ICE jail access for interview purposes prohibits grant recipients from informing inmates of their right to have a lawyer present or decline an interview with ICE, which would implicate the notice requirements in the TRUTH Act. 68. Itis also ambiguous as to whether the condition requiring compliance with immigration notification requests should be applied when an individual is scheduled to be released less than 48 hours after the jurisdiction receives a notification request, or if the individual becomes eligible for release without advance warning (i.e., released on bail). D. Interpreting the Notification Condition as a Requirement to Hold an Individual Past His or Her Ordinary Release would mean OJP is Conditioning Funding on Unconstitutional Activities 69. If OJP interprets the ambiguous notification condition to require a jurisdiction to hold an individual beyond his or her scheduled release date and time in order to comply with the 48-hour notice requirement, OJP would be transforming the notification request into a secondary immigration hold request. This would force jurisdictions to risk engaging in activities barred by the Fourth Amendment of the U.S. Constitution in order to receive federal funding. That is because jurisdictions would be required to detain individuals beyond when they would otherwise be eligible for release even if the jurisdiction lacks probable cause to do so. 70. As a matter of practice, when issuing detainer notification requests, ICE checks a box identifying whether: (a) there is a final order of removal; (b) removal proceedings are pending as to the individual; (¢) “[B]iometric confirmation of the alien’s identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law;” and/or (d) “[S]tatements made by the alien to an 17 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 18 of 25 immigration officer and/or reliable evidence that affirmatively indicate that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.” 71. The notification and detainer requests alone do not provide jurisdictions with any other individually particularized information about the basis for removability. And detainer and notification requests are typically only accompanied by an ICE administrative warrant, which has not been reviewed and approved by a neutral magistrate. As federal courts throughout the country have determined, jurisdictions that hold individuals beyond their ordinary release pursuant to ICE detainer requests violate the Fourth Amendment of the U.S. Constitution if the detainer requests are not supported by independent probable cause or a judicial warrant. See, e.g., Cty of Santa Clara., slip op. at 6 (N.D. Cal. Apr. 25, 2017). 72. OJP appears to interpret the notification condition as requiring jurisdictions to hold an individual beyond when he or she is otherwise eligible for release if necessary to provide 48-hour notice to ICE before release. On August 3, 2017, OJP sent a letter to four local jurisdictions, including the California cities of Stockton and San Bernardino, interested in the Public Safety Partnership (“PSP”) Program, a non-formula grant funding source administered through JAG. The letter asked jurisdictions to inform ICE whether the jurisdiction has a “statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours’ advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien.” 73. A similar “where possible” limitation is not included in the JAG Solicitations. It thus appears that OJP may expect jurisdictions to detain individuals beyond their release date in order to comply with the condition-which would require the recipient jurisdictions to potentially violate the Fourth Amendment. But even adding a “where possible” limitation does not cure the existing ambiguity. To cure the ambiguity and the Fourth Amendment problems with the ? See Department of Homeland Security, Immigration Detainer - Notice of Action, I- 247A, https://www.ice.gov/sites/default/files/documents/Document/2017/1-247A..pdf. 3 See U.S. Department of Justice, Alan Hanson Letters to Jurisdictions re PSP (Aug 3. 2017), https://www.]justice.gov/opa/press-release/file/986411/download (emphasis added). 18 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 19 of 25 notification condition, OJP would need to explicitly state that jurisdictions do not need to detain an individual beyond his or her ordinary release in order to comply with the condition. V. USDQOJ HAS MADE CLEAR THAT IT DOES NOT BELIEVE CALIFORNIA COMPLIES WITH THE ACCESS AND NOTIFICATION CONDITIONS 74. Although California’s laws comply with the access and notification conditions under one interpretation of the conditions, Defendants have consistently stated or suggested their perception that California and its local jurisdictions fail to comply with these conditions. A. California Has a Credible Fear that USDOJ Will Wrongly Withhold Funding Based on the Access Condition 75. On March 29, 2017, Defendant Sessions and then-DHS Secretary John Kelly sent a joint letter to the Chief Justice of California. The letter, which responded to the Chief Justice’s expression of concern about ICE arrests occurring in state courthouses, stated that “[sJome jurisdictions, including the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.” 76. No California law prohibits ICE’s access to jails. The TRUST Act only limits circumstances under which local law enforcement have discretion to comply with detainer requests. And the TRUTH Act only provides protections so that inmates are aware of their rights before they make the voluntary decision of whether to speak to ICE. 77. Defendant Sessions’ inaccurate characterization of California law as denying ICE access to jails, and thereby failing to satisfy this new condition in the JAG Solicitations, places California and local jurisdictions at risk of not receiving the JAG funds. 4 Attorney General Jefferson B. Sessions and Secretary John F. Kelly Letter to the Honorable Tani G. Cantil (Mar. 29, 2017), https://www.nytimes.com/interactive/2017/03/3 1/us/sessions-kelly-letter.html. 19 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 20 of 25 B. California Has a Credible Fear that USDOJ Will Wrongly Withhold Funding Based on the Notification Condition 78. California has a credible fear that the notification condition requires local jurisdictions to hold an individual beyond his or her ordinary release and, therefore, USDOJ will find that California and its political subdivisions fail to comply with this condition because of the TRUST Act. 79. In addition to the ambiguous wording of the notification condition, Defendant Sessions has made numerous statements asserting his desire to take federal funding away from jurisdictions that do not comply with detainer requests. For instance, on March 27, 2017, Defendant Sessions exclusively discussed “policies” regarding refusals “to detain known felons 295 under federal detainer requests.” Defendant Sessions threatened that “policies” that limit compliance with detainer requests placed jurisdictions “at risk of losing valuable federal dollars.”® 80. Defendant Sessions’ statements targeting jurisdictions that do not universally comply with detainer holds further corroborate that USDOJ intends to enforce this condition to require jurisdictions to hold individuals beyond their ordinary release. VI. THE IMPOSITION OF THE ILLEGAL FUNDING CONDITIONS WILL CREATE IRREPARABLE HARM TO THE STATE AND ITS LOCAL JURISDICTIONS 81. The ambiguity in the access and notification conditions, in combination with Defendants’ interpretations of California law, create the prospect that the State and/or its local jurisdictions will not apply for JAG unless there is clarification about the scope of the new conditions. That means a loss of up to $28.3 million in critical funds that would otherwise go toward programs throughout the State that reduce recidivism for at-risk youth, counter the distribution of illegal drugs, advance community policing, and improve educational outcomes. 82. Another prospect is that the State and/or its localities accept the funding and change their public-safety oriented laws and policies in order to ensure they are viewed as complying with these ambiguous access and notification conditions. Abandoning these policies, that law > U.S. Department of Justice, Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general- ] eff-sessions-delivers-remarks-sanctuary-j urisdictions. 1d. 20 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 21 of 25 enforcement has found to be effective in their communities, could divert resources away from fighting crime and erode trust between the state and local governments and their immigrant communities that the TRUST and TRUTH Acts, as well as local ordinances, are intended to build. 83. In order to compel jurisdictions to adopt its federal immigration program, the Administration has admitted that it intends to force state and local jurisdictions to abandon policies these jurisdictions have adopted based on their considered judgment on how best to enhance public safety. The ambiguity of these conditions is part and parcel of the Administration’s plan to create a chilling effect that makes state and local jurisdictions think twice about maintaining their current policies. If Defendants clarify the access condition to explain that they expect jurisdictions to not provide any procedural protections to detainees before an ICE interview, or the notification condition to mean that jurisdictions must provide ICE with 48-hour notice even if it means holding someone beyond his or her ordinary release, jurisdictions will still feel pressured to change their laws or policies to avoid losing any federal funding. 84. Compelling state and local governments to make a decision without providing clarity about the scope of the conditions, or construing these funding conditions to prohibit jurisdictions from providing notice protections for inmates or requiring jurisdictions to detain individuals beyond their ordinary release, undermines public safety, is unconstitutional, and should be halted. FIRST CLAIM FOR RELIEF VIOLATION OF CONSTITUTIONAL SEPARATION OF POWERS 85. Plaintiff incorporates the allegations of the preceding paragraphs by reference. 86. Article I, Section I of the United States Constitution enumerates that “[a]ll legislative Powers herein granted shall be vested in [the] Congress.” 87. Article I, Section VIII of the United States Constitution vests exclusively in Congress the spending power to “provide for . . . the General Welfare of the United States.” 88. Defendants have exceeded Congressional authority by adding conditions requiring jurisdictions to provide access to detention facilities to interview inmates and to comply with notification requests that are not conferred by the JAG authorizing statute or any other federal 21 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 22 of 25 law. See 42 U.S.C. §§ 3750-58. The new access and notification conditions therefore unlawfully exceed the Executive Branch’s powers and intrude upon the powers of Congress. 89. For the reasons stated herein, the access and notification conditions in the JAG Solicitations are unlawful, unconstitutional, and should be set aside under 28 U.S.C. § 2201. SECOND CLAIM FOR RELIEF VIOLATION OF CONGRESSIONAL SPENDING AUTHORITY 90. Plaintiff incorporates the allegations of the preceding paragraphs by reference. 91. Congress’ spending power is not unlimited. When “Congress desires to condition the States’ receipt of federal funds, it ‘must do so (a) unambiguously ..., enable[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation;’” (b) by placing conditions that are related “to the federal interest in particular national projects or programs;” and (c) to not “induce the States to engage in activities that would themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. 203, 207 (1987). 92. To the extent that Congress delegated its authority to impose conditions (special conditions or otherwise) on JAG funding (which Plaintiff does not concede), the access and notification conditions violate the Spending Clause of the U.S. Constitution. 93. The access and notification conditions are unrelated to the “federal interest in particular national projects or programs” for which Congress intended JAG funding to be used. 94. The access and notification conditions violate the Spending Clause because they are ambiguous and do not provide the State with notice to make a “choice knowingly” of whether to comply. 95. Additionally, if the notification condition requires jurisdictions to hold individuals beyond their ordinary release to comply with the notification condition, that condition would also violate the independent constitutional bar prong of the Spending Clause by requiring local law enforcement to comply even when doing so would violate the Fourth Amendment of the U.S. Constitution. 96. For the reasons stated herein, the access and notification conditions in the JAG Solicitations are unlawful, and should be set aside under 28 U.S.C. § 2201. 22 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 23 of 25 THIRD CLAIM FOR RELIEF VIOLATION OF ADMINISTRATIVE PROCEDURE ACT (Constitutional Violations and Excess of Statutory Authority) 97. Plaintiff incorporates the allegations of the preceding paragraphs by reference. 98. Defendant USDOI is an “agency” under the APA, 5 U.S.C. § 551(1), and the JAG solicitation is an “agency action” under the APA, id. § 551(13). 99. The JAG Solicitations constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 100. The APA requires that a court “hold unlawful and set aside agency action, findings, and conclusions found to be ... contrary to constitutional right, power, privilege, or immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)-(C). 101. Defendants’ imposition of the access and notification conditions in the JAG Solicitations is unconstitutional because Defendants overstepped their powers by exercising lawmaking authority that is solely reserved to Congress under Article I, Section I of the U.S. Constitution. Also, Defendants’ imposition of the access and notification conditions in the JAG Solicitations was in excess of their statutory authority. Furthermore, both conditions violate the Spending Clause because they are unrelated to the federal purpose of the grant, ambiguous, and/or tied to unconstitutional activities. 102. Because Defendants acted unconstitutionally and in excess of their statutory authority through the JAG Solicitations, these actions are unlawful and should be set aside under 5 U.S.C. § 706. FOURTH CLAIM FOR RELIEF VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT (Arbitrary and Capricious ) 103. Plaintiff incorporates the allegations of the preceding paragraphs by reference. 104. Defendant USDOJ is an “agency” under the APA, 5 U.S.C. § 551(1), and the JAG solicitation is an “agency action” under the APA, id. § 551(13). 23 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 24 of 25 105. The JAG Solicitations constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 106. The APA requires that a court “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). 107. The imposition of the access and notification conditions is arbitrary and capricious and an abuse of discretion because Defendants have relied on factors that Congress did not intend by adding these conditions to JAG funding. 108. For the reasons discussed herein, the access and notification conditions in the JAG solicitation are unlawful and shall be set aside under 5 U.S.C. § 706 for being arbitrary and capricious and an abuse of discretion. FIFTH CLAIM FOR RELIEF DECLARATORY RELIEF 109. Plaintiff incorporates the allegations of the preceding paragraphs by reference. 110. An actual controversy between California and Defendants exists as to whether the State of California and its localities comply with the access and notification conditions on the basis of the TRUST and TRUTH Acts. Although California law actually complies with an interpretation of the conditions, Defendants’ statements indicate that they will determine that California does not comply with the conditions. 111. Plaintiff is entitled to a declaration that the TRUST and TRUTH Acts do not violate the access and notification conditions, and thus, should not be a basis for withholding, terminating, disbarring, or making ineligible federal funding from the State and its political subdivisions. PRAYER FOR RELIEF WHEREFORE, Plaintiff, including the State of California, respectfully that this Court enter judgment in its favor, and grant the following relief: 24 Complaint for Declaratory and Injunctive Relief EXHIBIT B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:17-cv-04701-WHO Document 1 Filed 08/14/17 Page 25 of 25 1. Issue a declaration that the access and notification conditions in the JAG Solicitations are unconstitutional and/or unlawful because (a) they exceed the Congressional authority conferred to the Executive Branch; (b) to the extent there is Congressional authorization, exceeds the Congress’s spending powers under Article I of the Constitution; and (c) they violate the Administrative Procedures Act; 2. Permanently enjoin Defendants from using the access and notification conditions as restrictions for JAG funding; 3. Permanently enjoin Defendants from withholding, terminating, disbarring or making any state entity or local jurisdiction ineligible for JAG funding on account of the TRUTH Act or any law or policy that provides procedural protections to inmates about their rights; 4. Permanently enjoin Defendants from withholding, terminating, disbarring, or making any state entity or local jurisdiction ineligible for JAG funding on account of the TRUST Act or any law or policy that limits compliance with detainer requests; 5. Inthe alternative, declare that the State’s TRUST and TRUTH Acts comply with the access and notification conditions in the JAG Solicitations; and 6. Award the State costs and grant such other relief as the Court may deem just and proper. Dated: August 14, 2017 Respectfully submitted, XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General MICHAEL NEWMAN Supervising Deputy Attorney General SARAH BELTON LisA EHRLICH Deputy Attorneys General /s/ Lee Sherman LEE SHERMAN Deputy Attorney General Attorneys for the State of California 0K2017900935 25 Complaint for Declaratory and Injunctive Relief EXHIBIT B 184060.docx Ow 0 N N N nn BA W N O N O N N O N N O N N R r e m e ee p e e r ea p d 0 ~ 3 O N L h B W O N me O W N I N R W e e OO PROOF OF SERVICE OF PAPERS STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. Iam over the age of 18 and not a party to the within action; my business address is 2000 Main Street, Huntington Beach, CA 92648. On July 11, 2018, I served the foregoing document(s) described as: PETITIONER/ PLAINTIFF CITY OF HUNTINGTON BEACH’S OPPOSITION TO MOTION TO STAY CASE PENDING CONCLUSION OF TWO PRE-EXISTING FEDERAL CASES ON SAME SUBJECT MATTER on the interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: Jonathan Eisenberg Attorneys for Defendants, Office of the Attorney General State of California, Xavier Becerra, 300 South Spring Street, Suite 1702 California Attorney General, Edmund G. Los Angeles, CA 90013 Brown, Jr., California Governor (213) 269-6246 FAX (213) 897-5775 Jonathan.eisenberg@doj.ca.gov a. [1] BY MAIL -- I am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. b. [X] BY OVERNIGHT MAIL - UPS to the address(es) listed above. &. [X] BY EMAIL - Electronic Service through One Legal, LLC. I affected electronic service by submitting an electronic version of the documents to One Legal, LLC, www.onelegal.com, which caused the documents to be sent by electronic transmission to the person(s) at the electronic service address(es) listed above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 11, 2018, in Huntington Beach, > palifomia 1 a Ce Thuy Vi 7 PETITIONER/PLAINTIFFE CITY’S OPPOSITION TO RESPONDENT/DEFENDANT STATE OF CALIFORNIA’S MOTION TO STAY CASE