Alabama Immigration Law (Act No. 2011-535)

Federal Court Litigation Summary

Hispanic Interest Coalition of Alabama v. Bentley, Case No. 5:11-cv-02484-SLB (N.D. Ala., pending).

The first lawsuit challenging Act No. 2011-535 was filed on July 8, 2011.  The plaintiffs are twelve organizations and twenty-four individuals.  They are represented by lawyers from across the country, including lawyers from the Southern Poverty Law Center, the American Civil Liberties Union, and the Mexican American Legal Defense and Educational Fund.

The State Defendants are Governor Bentley, Attorney General Strange, the Superintendent of the State Department of Education, the Chancellor of Postsecondary Education, and a district attorney.  The Attorney General’s Office represents the State Defendants.  Additionally, several local superintendents are named as defendants in this litigation and they have separate counsel.

The lawsuit was filed in the federal district court for the Northern District of Alabama, and proceedings are held in Birmingham.  The case is styled Hispanic Interest Coalition of Alabama v. Bentley, Case No. 5:11-cv-02484-SLB (N.D. Ala., pending). 

United States v. Alabama, Case No. 2:11-cv-02746-SLB (N.D. Ala., pending), and Parsley v. Bentley, Case No. 5:11-cv-02736-SLB (N.D. Ala., pending). 

Two additional lawsuits were filed in the Northern District of Alabama, both on August 1, 2011.  One lawsuit was brought by the United States against the State of Alabama and Governor Bentley.  United States v. Alabama, Case No. 2:11-cv-02746-SLB (N.D. Ala., pending). 

The other lawsuit was brought by a group of Church Leaders against Governor Bentley, Attorney General Strange, and a district attorney.  Parsley v. Bentley, Case No. 5:11-cv-02736-SLB (N.D. Ala., pending).  The plaintiffs in the Parsley litigation are: the Bishop of the Episcopal Church in the Diocese of Alabama; the Bishop of the North Alabama Conference of the United Methodist Church; the Roman Catholic Archbishop of Mobile; the Roman Catholic Bishop of Birmingham; the Benedictine Sisters of Cullman, Alabama, Inc.; and, the Benedictine Society of Alabama. 

The Attorney General’s Office represents the State Defendants in these cases.

Central Alabama Fair Housing Center v. Magee, Case No. 2:11-cv-00982-MHT-CSC (M.D. Ala., pending).

On November 18, 2011, a fourth lawsuit was filed in federal court, this one in the Middle District of Alabama, where it is assigned to the Honorable Myron H. Thompson. The plaintiffs are two illegal aliens and three organizations that focus on fair housing issues. They seek to certify a class of illegal aliens who own, maintain, or keep a manufactured home in Alabama as well as a subclass of those persons who are Latino.

The State Defendant is Julie Magee, the State Revenue Commissioner. The Honorable Jimmy Stubbs, the Judge of Probate for Elmore County, is also named as a defendant. The Attorney General’s Office represents Commissioner Magee.

The Challenges to Act No. 2011-535

While there is some overlap in the various lawsuits, the Plaintiffs did not all bring the same challenges to the same provisions.  Each lawsuit targets specific provisions, and the HICA Plaintiffs additionally challenge Act No. 2011-535 in its entirety. 

As to the arguments pending in the Northern District, the United States contends that federal law preempts various provisions of Act No. 2011-535.  The HICA Plaintiffs also argue that various provisions are preempted, but they raise other constitutional and statutory claims as well. The Church Leaders focus on Sections 13 and 27 of the Act, which they allege violate their federal constitutional rights with respect to religion. 

Finally, because all of the lawsuits were brought before Act No. 2011-535 was scheduled to take effect, they present facial challenges to the law. 

The Fair Housing Plaintiffs allege that Section 30 of the Act is preempted, unconstitutional, and in violation of the federal Fair Housing Act, insofar as it applies to business transactions required by Ala. Code § 40-12-255.  That provision of Alabama law requires that persons who own, maintain or keep manufactured homes in the State must pay an annual registration fee and receive an identification decal, which is to be posted on the home.  Section 40-12-255 additionally requires that manufactured homes may only be moved on the State’s roads and highways if a moving permit has been issued.

The discussion below first considers the proceedings in the Northern District, and then returns to the Fair Housing case.

HICA, the United States and the Church Leaders: Opposing the Motions for Preliminary Injunction

The HICA Plaintiffs, the United States, and the Church Leaders all moved for preliminary injunctions.  A preliminary injunction is granted when a court determines that the plaintiffs have a substantial likelihood of winning on the merits and that the equities favor an injunction issuing.  A preliminary injunction only remains in place while the litigation continues through discovery, additional briefing, trial (if one is needed), and an ultimate decision on the merits.  The issuance of a preliminary injunction does not mean that the plaintiff will ultimately prevail.

The State Defendants contested the requests for preliminary injunctions.  On August 5, 2011, the State Defendants filed an opposition in the HICA litigation.  Attached to the opposition were four exhibits:

  • a declaration from a lawyer at the Alabama Department of Public Safety which discusses Alabama’s collaboration with the federal government in fighting illegal immigration;
  • a declaration from the Code Commissioner discussing how two enforcement provisions of Act No. 2011-535 will be codified;
  • a letter from then-State Superintendent of Education Joseph B. Morton, which explained to City and County Superintendents the manner in which Section 28 of the Act is to be implemented, consistent with federal law; and,
  • a letter from Chancellor Freida Hill to the Presidents of the Alabama Community College System, which explained how Section 8 of the Act is to be implemented, consistent with federal law. 

On August 20, 2011, the State Defendants filed supplemental briefing addressing the HICA Plaintiffs’ challenge to Section 28 on Equal Protection grounds.

On August 15, 2011, the State Defendants filed their opposition to the motion for preliminary injunction filed by the United States.  In support of this opposition, the State Defendants attached:

  • information from the PewResearch Center;
  • a declaration from an employee of the Alabama Department of Corrections stating that there were then 182 inmates in State custody for whom ICE had issued detainers;
  • a 2002 Opinion from the Office of Legal Counsel at the United States Department of Justice explaining the inherent authority of State and local law enforcement officers to make arrests for violations of federal law; and,
  • information from the National Education Association.

Also on August 15, 2011, the State Defendants filed their response to the Church Leaders’ amended motion for preliminary injunction.   After the Church Leaders replied in support of their motion for a preliminary injunction, the State Defendants filed a surreply.

Additionally in the Church Leaders’ case, the State Defendants moved the federal court to ask the Alabama Supreme Court how to interpret Sections 13 and 27 of the Act in compliance with the Alabama Religious Freedom Amendment to the Alabama Constitution, Ala. Const. Art. I, § 3.01.  The State Defendants' motion is available here.

HICA, the United States and the Church Leaders: Northern District Court Action on the Motions for Preliminary Injunction         

The Honorable Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, heard arguments on all three pending motions for preliminary injunction in open court on August 24, 2011.  Most of the provisions of Act No. 2011-535 were set to take effect the next week on September 1, 2011.

After the hearing, and in light of the complexity of the challenges brought against Act No. 2011-535, Judge Blackburn temporarily enjoined the enforcement of the entire Act.  The court’s Order was not a reflection of the court’s views on the merits; it simply allowed the court more time to analyze the issues.

On September 28, 2011, Judge Blackburn ruled in all three cases on the motions for preliminary injunction.  In each case, the court issued both a Memorandum Opinion setting out its reasoning and a short Order. 

First, the court ruled in the United States’ case.  (Memorandum Opinion, Order)  The court granted the United States’ motion as to Sections 11(a), 13, 16, and 17, and thus enjoined the State from enforcing those provisions.  The court denied the United States’ motion as to the other Sections of Act No. 2011-535 that it had challenged (Sections 10, 12(a), 18, 27, 28, and 30). 

Next, Judge Blackburn denied the Church Leader’s motion in its entirety, holding that their challenge to Section 13 was moot because of the ruling in the United States case and that they lacked standing to prosecute the challenge to Section 27. (Memorandum Opinion, Order) 

Lastly, the court ruled in the HICA case.  (Memorandum Opinion, Order)  The court held that the HICA Plaintiffs' challenges to Sections 11(a) and 13 were moot because of the ruling in the United States case.  The court granted the HICA Plaintiffs’ motion as to Sections 8, 11(f) and 11(g), as well as to the last sentences of Sections 10(e), 11(e), 13(h). Thus the State is enjoined from enforcing those provisions.  The court denied the motion as to the other Sections of Act No. 2011-535 that the HICA Plaintiffs had challenged (Sections 12, 18, 19, 20, 27, 28, and 30).

The HICA Plaintiffs and the United States quickly appealed their losses, and moved Judge Blackburn to grant them an injunction while their appeal is heard.  The State Defendants opposed those motions, (HICA, United States), and also filed a cross-appeal.   On October 5, 2011, the court entered short Orders denying both motions for injunctions pending appeal.  (HICA, United States)

HICA, the United States and the Church Leaders: Interlocutory Appeals to the Eleventh Circuit

At that point, the litigation shifted to the United States Court of Appeals for the Eleventh Circuit.  Both the HICA Plaintiffs and the United States moved the Eleventh Circuit for injunctions pending appeal.  The United States went a step further, asking the appellate court to temporarily enjoin certain provisions of Act No. 2011-535 while it considered whether to grant an injunction pending appeal.  The State Defendants immediately filed an opposition to that request.

The Eleventh Circuit issued an Order setting an expedited schedule for briefing the motions for injunctions pending appeal. The State Defendants timely filed an opposition, including exhibits. 

On October 14, 2011, the Eleventh Circuit issued an Order enjoining the State from enforcing Sections 10 and 28 of the Act during the appeal.  The Eleventh Circuit denied the plaintiffs’ motion seeking an injunction of Sections 12, 18, 27 and 30 during the appeal.  As with the district court’s preliminary injunction decision, the Eleventh Circuit’s decision on the motions for an injunction pending appeal does not determine who will win on the merits.

The parties are now in the process of briefing the appeal. As the briefing schedule currently stands, briefing will be complete in late January 2012. Oral argument will be held the week of February 27, 2012 in Atlanta, Georgia. 

HICA, the United States and the Church Leaders: Meanwhile in the Northern District Court

The district court proceedings in the HICA, United States, and Church Leaders cases are generally stayed until mid-January 2012.

The Fair Housing Proceedings

The Plaintiffs in this action seek both a Temporary Restraining Order and a Preliminary Injunction.  The Court has set a hearing for November 23, 2011.

In compliance with a Court order, the State Defendant filed an opposition to the Plaintiffs’ motion on November 22, 2011.  She also filed numerous documents from the Northern District litigation, a motion asking to transfer the case to the Northern District, and a motion seeking to to prevent the Plaintiffs from being allowed to call State Legislators as witnesses, in that such testimony is not relevant. 

The Court has ordered the Plaintiffs to show cause as to why the motions to transfer the case and exclude the Legislators’ testimony should not be granted.  The Plaintiffs’ responses are due by 7:00 a.m. on November 23, 2011.  The hearing is scheduled to begin at 8:00 a.m.

Summary as of November 22, 2011