Supreme Court ruling guides final State brief in immigration suit

AG: Warrantless arrests pre-empted; challenge now awaits court’s decision

INDIANAPOLIS – The United States Supreme Court’s ruling striking down Arizona’s immigration law as unconstitutional means portions of Indiana’s immigration law dealing with warrantless arrests cannot be defended, Attorney General Greg Zoeller said today in a legal brief filed in federal court.

Zoeller noted that the Supreme Court’s ruling in the Arizona v. U.S. case makes it clear that state laws authorizing local law enforcement officers to make warrantless arrests of people for immigration violations are unconstitutional. Portions of Senate Enrolled Act 590, Indiana’s immigration law that is now under legal challenge, are preempted, or overridden, by federal law, Zoeller said.

“The Supreme Court made clear that immigration enforcement is a federal government responsibility. States are frustrated by the unwillingness of the executive branch to enforce current immigration laws and inability of Congress to make reforms. As Indiana’s Attorney General, I had an obligation to defend this Indiana statute passed prior to the recent Arizona decision, but I have sworn to uphold the Constitution and my legal conclusion now is that certain portions of the state law cannot stand,” Zoeller said.

Shortly after the Legislature passed Senate Enrolled Act 590 into law in 2011, the ACLU plaintiffs filed a legal challenge to it, Buquer v. Indianapolis, in U.S. District Court for the Southern District of Indiana, in Indianapolis. The plaintiffs in June 2011 obtained a preliminary injunction that blocked two challenged portions of the law from taking effect. As lawyer for the State, the Attorney General’s Office defended the statute from the challenge.

Senate Enrolled Act 590 permitted local officers to make warrantless arrests based on immigration court removal orders, federal notice-of-action forms, 48-hour detainer requests or for being a foreign person who was indicted or convicted of an aggravated felony. The U.S. Supreme Court recently struck down as unconstitutional similar language in Arizona’s law. Because that is now the binding legal precedent, similar portions in Indiana’s law with one exception cannot remain standing either, Zoeller said.

In the State’s legal brief filed today in the Buquer case, Zoeller recommended the U.S. District Court strike down three of the four warrantless arrest provisions of the law that the Supreme Court has now said are unconstitutional. (The exception: Other statutes already allow local police to confine someone on a detainer for 48 hours at a federal agency’s request.)

SEA 590 also contains a provision making it an infraction in Indiana to use or accept a foreign nation’s consular identification card as ID for any public or private purpose. This portion, which the ACLU plaintiffs also challenged, remains under the U.S. District Court’s preliminary injunction of June 2011. The U.S. Supreme Court ruling in the Arizona case was silent on the use of consular ID cards. Zoeller said consular ID is a unique issue but since the Arizona decision does not apply to it, Indiana’s recommendation is that the State should have the right to define what identification is reliable and acceptable for government purposes, including licensed occupations. Indiana will leave it up to the federal court to decide the issue in the Buquer case.

The Attorney General’s Office operates the state’s Identity Theft Unit in the Consumer Protection Division. Given the concern that consular ID could be forged and used to commit fraudulent transactions, Zoeller also said he also will recommend the 2013 Legislature revise that part of the statute to improve its effectiveness.

In the Buquer case, the U.S. District Court permitted each side additional time to file legal briefs to take into account the June 25 ruling in the Arizona case. With the filing of the State’s response brief today, the State’s litigation in the Buquer case is now largely concluded and the Attorney General’s Office will await a ruling from the federal district court.

“My office has defended the Indiana law the Legislature has passed from the legal challenges the plaintiffs filed for as long as possible. But once the U.S. Supreme Court struck down the Arizona law, its decision is final; and we should defend the challenged portions only when we have a good-faith basis to do so. To disregard the Supreme Court’s guidance would not serve justice and would not be a good use of taxpayer resources, since the State could be ordered to pay the challenger’s attorneys fees,” Zoeller said.

Separately, the Attorney General’s Office also is defending a second legal challenge to SEA 590, Union Benefica Mexicana v. State, in the U.S. District Court for the Northern District of Indiana in Hammond. Those plaintiffs challenged different provisions of SEA 590 that allow the State to sue employers who employ illegal workers to recoup unemployment benefits, and require that individuals seeking day-labor jobs complete individual attestation of employment forms. SEA 590 says that if police have probable cause to believe an individual has not completed this form, they are required to submit a complaint to the U.S. Immigration and Customs Enforcement (ICE) office.

The federal court stayed the Union Benefica Mexicana case after the plaintiffs filed suit so the State does not have the opportunity to respond, and that court has issued no injunction. Zoeller noted the two provisions being challenged here already satisfy the requirements of the Supreme Court’s Arizona decision and so his office will continue to defend SEA 590 in that case.

Still other provisions of SEA 590 were not challenged in either the Buquer or Union Benefica Mexicana lawsuits. E-Verify is a federal database familiar to many businesspeople. Under SEA 590, if a company wishes to do business with the State, it must use the federal E-Verify database to establish that its employees are eligible to work. The Supreme Court did not address E-Verify in the Arizona case, and in a separate case the Supreme Court has said states are permitted to require such employer verification. Zoeller said there is no legal obstacle to the State requiring state contractors to use E-Verify.

Emphasizing the State’s lawyers have devoted much time and effort into vigorously defending SEA 590, Zoeller said he will advise law enforcement and Legislature on how next to proceed.

“The people’s elected representatives in the Indiana General Assembly made a sincere effort to respond to local concerns about illegal immigration when they were faced with the federal government’s dereliction of its responsibility. Whatever its flaws, this Indiana legislation was not an ‘anti-immigrant’ bill, it was an anti-illegal-immigration bill, focused on process, not individuals, and it was consistent with Hoosiers’ decency and their respect for the Constitution and the basic rights of all people. The states are the victims of federal inaction, and I call upon those in Washington DC to fulfill their duties and stop putting states in the difficult position of attempting to enforce immigration when the Supreme Court has said that is a federal government responsibility,” Zoeller said.

Noting that the Attorney General’s Office has made it a point to legally challenge the federal government in cases of federal overreach, Zoeller underscored the importance of maintaining a proper balance between federal and state authority. “We don’t want the federal government to overstep their authority, and we as the State should not overstep ours,” the Attorney General added.

VANDERBURGH COUNTY FELONY CHARGES

This feature is sponsored by Chris Walsh For Vanderburgh County Clerk. Chris Walsh is a veteran county administrator that strongly supports our local law enforcement professionals . Chris is a candidate that possess a non-partisan attitude with a consumer friendly demeanor. Chris also stands against unification of city and county governments.

This ad paid for by the committiee to elect Walsh Clerk, Kelly Walsh, Treasurer

Evansville, IN – Below is a list of felony cases that were filed by the Vanderburgh County Prosecutor’s Office on Monday, July 30, 2012.

Joel Doughty Dealing in Methamphetamine – Class B Felony
Possession of Methamphetamine – Class D Felony

George Heid Criminal Confinement – Class D Felony
Battery Resulting in Bodily Injury –Class A Misdemeanor

Scarlett Kelley Theft – Class D Felony

Danny Powers, II Battery Resulting in Bodily Injury –Class D Felony
Interference with the Reporting of a Crime – Class A Misdemeanor

For further information on the cases listed above, or any pending case, please contact Carly Settles at 812.435.5688 or via e-mail at csettles@vanderburghgov.org.

Under Indiana law, all criminal defendants are considered to be innocent until proven guilty by a court of law.

SENTENCE CHART
Class
Range
Murder
45-65 Years
A Felony
20-50 Years
B Felony
6-20 Years
C Felony
2-8 Years
D Felony
½ – 3 Years
A Misdemeanor
0-1 Year
B Misdemeanor
0-180 Days
C Misdemeanor
0-60 Days

GM Fires Marketing Chief but Adds Jobs in Brazil

In separate announcements this week General Motors (NYSE: GM) has announced the sudden resignation of the Chief of Marketing Joel Ewanick and that it has increased its number of employees at its Brazilian operations.

The official word according to GM, is that Ewanick “failed to meet the expectations the company has for its employees”.

GM’s U.S. market share has fallen sharply, to just 18.1% in the first half of 2012 — down from almost 20% a year ago. Combined with the company’s ongoing troubles in Europe, that has taken a lot of the wind out of GM’s turnaround sails and has hit the automaker’s stock price hard.

GM stock is trading at $19.71 today up slightly after flirting with the 52 week low of $18.72. The break even point for the people of the United States to recover the money allocated by the Obama Administration is $53 per share. Considering that the US government owns over 500 Million shares if the shares were sold at today’s price the taxpayer’s would be asked to absorb a loss of nearly $17 Billion.

Adding that to the previous $15 Billion permanent loss on the bankruptcy of the mortgage unit of Ally Bank the losses to the taxpayers of the United States now stand at $32 Billion on the Obama Administration’s $82 Billion bailout of GM.

Losses to private investors and pension funds are not included in these calculations.

The Evansville Convention and Visitors Bureau announced today that a study that was commissioned to be done by VPS Architecture in April is complete. The study has shown that the best solution is to build a new 8 ball field complex on approximately 60 acres that will cost between $10 Million and $13 Million.

The Roberts Stadium site is not under consideration and it was not disclosed whether the estimated cost included the cost of the land or not.