JULY 30, 2009
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a "Petition for Review" with the California Supreme Court in its taxpayer lawsuit against Special Order 40, a Los Angeles Police Department illegal alien sanctuary policy (Sturgeon v. Bratton, et al., Case No. BC351646). Judicial Watch’s taxpayer lawsuit argues that Special Order 40 violates federal immigration law as well as California State law. The California Court of Appeal ruled on June 17, 2009 that the lawsuit could not proceed to trial.
Judicial Watch asked the California Supreme Court to review two specific questions in its petition, filed on July 27.
First, Judicial Watch asked the California Supreme Court to settle the important question of whether federal law preempts California Penal Code 834b, which states, in part, that "Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service (now Immigration and Customs Enforcement) regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration law." The statute also prohibits local government entities from limiting the cooperation between local law enforcement officers and federal immigration officials.
The Court of Appeal failed to apply Penal Code 834b, finding that the provision, approved by voters in 1994 as part of Proposition 187, was preempted by federal law as "an impermissible regulation of immigration."
"It is ironic, to say the least, that a statute enacted by California voters to promote cooperation and information sharing between state, local, and federal law officials on immigration matters would be dismissed so easily as an impermissible regulation of immigration when federal law so obviously seeks to promote these very same goals," Judicial Watch states in its petition. (The federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 promotes the free flow of information between state and local officials and federal immigration authorities.)
In fact, earlier this year, the California Supreme Court found that a California statute allowing juveniles to be declared wards of the court based on violations of federal immigration laws was not preempted by the Supremacy Clause or any other federal law. The Court had recognized that "a regime of cooperative federalism, in which local, state, and federal governments may work together to ensure the achievement of federal criminal immigration policy."
Second, Judicial Watch is challenging the appellate court’s decision to force a taxpayer challenging an administrative policy to satisfy the same heavy burden as a person bringing a "facial" challenge to a statute or ordinance. A "facial" challenge requires a litigant to prove that an ordinance or statute is always and under all circumstances unconstitutional. As Judicial Watch notes in its complaint, there is no statute or ordinance at issue in this lawsuit.
"Special Order 40 and the even more restrictive, unwritten practices and procedures by which the LAPD has implemented Special Order 40 most definitely are not statutes, ordinances or legislative enactments," Judicial Watch noted in its complaint. Considering Judicial Watch’s taxpayer lawsuit as a "facial challenge" is inappropriate, therefore, "because, by definition, a practice does not have a ‘face.’ This is especially the case in legal challenges to unwritten practices such as Plaintiff has asserted here. There simply is no text to be analyzed."
"Special Order 40 is a dangerous and unlawful ‘don’t ask, don’t tell’ policy that puts law-abiding citizens at risk. There is no question Special Order 40 frustrates the free flow of communication between law enforcement officers and federal immigration officials. This is a clear violation of federal immigration law," said Judicial Watch President Tom Fitton. "We hope the California Supreme Court considers the serious legal issues at the center of this taxpayer lawsuit."