POSTED ON JUNE 11, 2008:
Injunction against HB 1804 sparks debate of political playmaking versus a sound decision
A federal judge issued an injunction against certain provisions of Oklahoma's monumental anti-immigration law last week but, according its author, that doesn't mean opponents of the controversial measure will be parading in the streets any time soon.
"More than three quarters of HB 1804 remain in effect, despite Judge Cauthron's ruling," said state Rep. Randy Terrill, R-Moore, who authored the "Taxpayer and Citizen Protection Act" along with Tulsa's Republican Sen. Jim Williamson.
Terrill also dismissed the opinion as a "blatant example" of judicial activism.
"It's an obvious attempt to try to achieve through the judicial process what they've been unable to achieve through the legislative process, namely the defeat of HB 1804, either in whole or in part, and it's pretty clear that Judge Cauthron was acting more like a legislator than a judge in crafting this opinion," he told UTW.
Judge Robin Cauthron of Oklahoma's western U.S. District Court granted an injunction requested in a lawsuit against the state by the U.S. Chamber of Commerce, the State Chamber of Oklahoma, the Greater Oklahoma City Chamber, the Tulsa Metro Chamber, the Oklahoma Restaurant Association, and the Oklahoma Hotel and Lodging Association, which they filed early this year.
The decision halts provisions that would have gone into effect July 1, which would have required private employers contracting with the state to use the federal "Basic Pilot Program" to electronically verify potential employees' immigration status and work eligibility, as well as provisions that would have imposed tax penalties on businesses that don't verify the status of independent contractors.
The chambers collectively argued that the provision unconstitutionally preempts federal laws governing the employment of unauthorized workers, but Attorney General Drew Edmondson argued that the new law "merely enforces the state's right to contract with whom it chooses," and that imposing taxes is within the state's authority.
In the opinion she issued last week, though, Cauthron said that, despite the "clever parsing" offered by the defendants, the plaintiffs are "substantially likely to establish" that the HB 1804 provision conflicts with federal law.
"While defendants are correct that issues of taxation are within the rights of the state to regulate, plaintiffs are likely to prove that the statute at issue here is not a taxation statute but rather a form of civil sanction," said Cauthron.
"We applaud the court's decision do delay enforcing these portions of Oklahoma's immigration law," said Robin Conrad, executive vice president of the National Chamber Litigation Center, which is representing U.S. Chamber of Commerce in the lawsuit.
"Through harsh civil penalties, the Oklahoma law unfairly shifts the burden of immigration enforcement from government onto the backs of businesses. Piecemeal state legislation is not the answer to our nation's immigration problems," the Chamber's attorney added.
Terrill, who is not named as a defendant in the suit, but is an attorney and is obviously closely watching the case, explained that "the decision was preliminary, and it was largely procedural in nature and it was not on the merits of the case."
He said the state can appeal the injunction, which would likely lead to a series of subsequent appeals and could take up to four years to reach a final resolution to the case.
"Or, do we just let it proceed to a decision on the merits, so we can appeal that and get an ultimate resolution sooner rather than later? It comes down to a question of 'How many bounces of the yo-yo do you want to take place?'" Terrill explained.
But, he said Cauthron's opinion is "clearly wrong and will most likely be overturned on appeal" because it conflicts with rulings in similar cases.
"What I was disappointed about most was that the opinion itself is clearly troubling in that it conflicts with recent precedent in other cases, most notably Missouri and Arizona, but also, with Judge James Payne's opinion that he issued in the almost identical preemption challenge brought against HB 1804 in the northern district in Tulsa," Terrill said.
The lawsuit in question was filed late last year by the National Coalition of Latin Evangelical Clergy and Christian Leaders, or CONLAMIC, as the organization is better known (an acronym of the Spanish translation of the group's name: La Coalicion Nacional Latina de Ministros y Lideres Cristianos), and made similar claims against HB 1804.
"It was dismissed on standing grounds-- a 'concrete, particularized, specific enough injury to an identifiable individual or business,'" Terrill recalled.
"But what this judge said is, 'That doesn't matter,'" he added.
Cauthron said the plaintiff's allegation that the provision will cause potential injury to their membership is sufficient to establish standing.
"She is perhaps the most liberal judge sitting in the western district of Oklahoma and this opinion is about as blatant an example of judicial activism as it gets," Terrill said of Cauthron, adding, "If you read through it, it clearly is a results-oriented decision. She knew what result she wanted before she even started crafting the opinion, and it's pretty clear that the opinion is crafted in such a way as to reach the particular result she wanted."
He said the current lawsuit is another example of the "pro-illegal alien and open borders lobby" trying to preempt the Legislature through activist judges.
"Whether it's the CONLAMIC lawsuit in Tulsa or whether it's the TU law professor suing in state court on some obscure provision of the Oklahoma constitution--which he's also interpreted wrongly, or whether it's this Chamber lawsuit down here in Oklahoma City that, from the very beginning, the opponents of HB 1804 have plaintiff-shopped, forum-shopped and judge-shopped to try to find somebody, anybody who is sympathetic to their cause," he said.
"And, unfortunately, with the ruling by Judge Cauthron, they have at least partially succeeded in that effort," he added.
"This judicial opinion--which effectively substitutes the judgment of the judiciary for that of the Legislature and permits the continued exploitation of cheap, illegal alien slave labor--does nothing more than poke the citizens of the state of Oklahoma right in the eye. They overwhelmingly support the HB 1804 in cracking down on illegal immigration," Terrill concluded.
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