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