Sturgeon v. Bratton

officials—acts permitted by SO40—constituted unconstitutional state enforcement of federal civil immigration law. (Gates v. Superior Court (1987) 193 Cal.App.3d 205 , 219 [ 238 Cal.Rptr. 592 ].) We concluded that the LAPD could voluntarily transfer legitimately obtained arrest information to federal authorities without running afoul of the United States Constitution. (193 Cal.App.3d at p. 219.)

Subsequently, Congress enacted a statute invalidating state and local restrictions on the voluntary exchange of immigration information with federal immigration authorities. ( 8 U.S.C. § 1373 (section 1373).) Plaintiff Harold P. Sturgeon brought a taxpayer action to enjoin defendants, LAPD Chief William J. Bratton and other officials,^[1] from enforcing SO40, as a local restriction invalidated by section 1373. The trial court permitted intervention, in support of defendants, by several organizations supporting immigrants’ rights.^[2] Interveners and defendants moved for summary judgment on the basis that SO40 was not invalid. Sturgeon took the position that SO40 violated the supremacy clause (U.S. Const., art. VI, cl. 2) because it conflicted with section 1373. Alternatively, Sturgeon argued that SO40 was preempted by federal immigration law. Finally, Sturgeon argued that SO40 violated Penal Code section 834b, a California statute requiring local law enforcement agencies to cooperate with federal immigration authorities, and specifying certain immigration enforcement tasks which must be taken with respect to every arrestee suspected of being present in the United States illegally.

The trial court granted summary judgment, upholding the validity of SO40. As to Sturgeon’s contention that SO40 violated the supremacy clause, the trial court concluded that Sturgeon’s challenge was solely a facial challenge, not an as-applied challenge, and that Sturgeon had failed to establish that SO40 was facially invalid under all circumstances. As to Sturgeon’s preemption argument, the trial court concluded SO40 is not preempted by federal immigration authority. Finally, as to Sturgeon’s argument that SO40 violated Penal Code section 834b, the trial court concluded that Penal Code section 834b was itself preempted by federal law. The trial court therefore granted summary judgment in favor of defendants and interveners. Sturgeon appeals. We agree with the trial court’s analysis in all respects, and therefore ¿firm.

FACTUAL AND PROCEDURAL BACKGROUND

A brief review of the relationship between federal and local authorities with respect to the enforcement of immigration law is helpful to place into context the adoption of SO40. While improper entry into the United States is a misdemeanor ( 8 U.S.C. § 1325 (a)), an alien illegally in the country may also be subject to removal proceedings before an immigration judge (8 U.S.C. § 1229a). Only the former constitutes a criminal proceeding.

The federal government has the exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion and deportation of aliens. (Gates v. Superior Court, supra, 193 Cal.App.3d at pp. 214-215.) As such, Congress is prohibited by the Tenth Amendment from passing laws requiring states to administer civil immigration law. (City of New York v. U.S. (2d Cir. 1999) 179 F.3d 29 , 33-35.)

Under federal law, matters of immigration are handled by U.S. Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security.^[3] (Fonseca v. Fong (2008) 167 Cal.App.4th 922 , 927 [ 84 Cal.Rptr.3d 567 ].) Authorized ICE officers have powers to enforce federal immigration laws which exceed the powers of state law enforcement officers.^[4] Under 8 United States Code section 1357(g), the Attorney General of the United States may enter into a written agreement with a state or political subdivision pursuant to which state or local officers may carry out the function of immigration officers, but this requires a voluntary agreement, and the local officer would be subject to the supervision of the United States Attorney General when performing the functions of an ICE officer. ( 8 U.S.C. § 1357 (g)(3).) Similarly, the United States Attorney General may authorize local law enforcement officers to perform as ICE officers when a mass influx of aliens requires an immediate response; even then, the Attorney General must act “with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving.” ( 8 U.S.C. § 1103 (a)(10).)

While the Tenth Amendment shields state and local governments from the federal government requiring them to administer federal civil immigration

(Illegal Entry).”^[5] Stated broadly, SO40 prevents LAPD officers from commencing investigations directed solely toward uncovering violations of civil immigration laws and from arresting for an immigration misdemeanor which is not committed within their presence.

Sturgeon’s challenge to SO40 is based entirely on a federal statute enacted some 17 years after SO40. In 1996, Congress enacted a statute to protect the voluntary exchange of information with ICE. Section 1373 provides, “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [ICE] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”^[6] (§ 1373(a).) The statute also provides that no person or agency may prohibit or restrict a local entity from (1) sending such information to, or requesting and receiving such information from, ICE; (2) maintaining such information; or (3) exchanging such information with any other government entity. (§ 1373(b).) Finally, the statute requires ICE to respond to any inquiry by a federal, state, or local government agency “seeking to verify or ascertain the citizenship or immigration status of any

individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.”^[7] (§ 1373(c).)

On May 1, 2006, Sturgeon brought this action against defendants. Sturgeon had not been personally impacted by the application of SO40; instead, he brought a so-called “taxpayer” action to enjoin the enforcement of SO40 as an illegal expenditure of public funds. (Code Civ. Proc., § 526a.) Defendants’ demurrer was overruled, and the interveners were permitted to join the action on behalf of defendants.

Substantial discovery was conducted. The majority of Sturgeon’s discovery consisted of depositions of current and past high-ranking LAPD officers, in order to obtain their opinions on the scope of SO40 and the particular police conduct it prohibits and permits. Sturgeon did not obtain any information regarding any specific instance of the application of SO40. When asked, by special interrogatory, to identify all individuals “who have been prohibited by [SO40] from sending to immigration officials information regarding the immigration status of an individual,” Sturgeon objected to the request as “inappropriate to the type of lawsuit brought by Plaintiff, which is a legal challenge to a longstanding policy of the [LAPD], and not reasonably calculated to lead to the discovery of admissible evidence.” The same response was given to interrogatories asking for the identity of individuals prohibited by SO40 from receiving information from immigration officials, maintaining immigration information, and exchanging immigration information with any law enforcement agency. Indeed, Sturgeon gave the same response to an interrogatory seeking the identity of law enforcement officers who have complained about the prohibitions or restrictions of SO40.

Thereafter, both defendants and interveners moved for summary judgment. They argued that (1) Sturgeon brought only a facial challenge to SO40, not an as-applied challenge; (2) SO40 was not facially invalid as it did not violate section 1373 in all circumstances; (3) SO40 was similarly not preempted by federal law; and (4) there can be no conflict with Penal Code section 834b, as that statute had been determined to be preempted by federal immigration law. With respect to the purported conflict with section 1373, defendants and interveners took the position that SO40, on its face, says nothing regarding prohibiting communication with ICE, but only prohibits officers from initiating police action regarding immigration status. In contrast, defendants and

interveners argued, section 1373, on its face, says nothing regarding local policies prohibiting the initiation of police action into immigration status, but only invalidates local policies prohibiting contact with ICE.

Sturgeon opposed summary judgment with deposition excerpts, reports,^[8] and other evidence regarding the scope of SO40. Sturgeon argued that he was challenging not merely the language of SO40, but the broader way in which it had been applied. However, none of Sturgeon’s evidence dealt with a particular application of SO40; instead, Sturgeon focused on the opinions of highly ranked LAPD officers regarding the meaning of SO40. While we do not disagree with Sturgeon that the proffered interpretations of SO40 were somewhat inconsistent, all of the LAPD witnesses agreed that SO40 prohibits arresting someone for misdemeanor illegal entry, and prohibits initiating an investigation into an individual solely to determine that person’s immigration status. There was some disagreement among the LAPD witnesses regarding whether SO40 also prohibits investigating the immigration status of an individual already under investigation for something unrelated to immigration status.^[9] Moreover, there was some disagreement regarding whether an LAPD officer who happened to discover information indicating that an individual not otherwise under arrest was present in the country illegally could contact ICE.^[10] In response to a special interrogatory asking the circumstances under which SO40 prohibits inquiring of ICE regarding a person’s immigration status, defendants responded “[SO40] prohibits LAPD from initiating police action with the objective of discovering the alien status of a person. If an individual were to contact [ICE] for that explicit purpose and for no other, they would be violating [SO40].”

The disagreements among the witnesses as to the scope of SO40 are irrelevant, as Sturgeon argued that SO40’s undisputed prohibition on initiating investigations for the sole purpose of determining immigration status was itself a violation of section 1373. Sturgeon argued that preventing officers from obtaining information regarding an individual’s immigration status is a restriction on voluntarily reporting such information to ICE, because a restriction on obtaining information reduces the amount of information which can then be reported.^[11] Additionally, Sturgeon argued that a triable issue of fact exists as to whether, in practice, SO40 is interpreted to prevent, at least in some cases, otherwise permissible voluntary contact with ICE, in violation of section 1373.

The trial court concluded that, as Sturgeon relied on no actual instances of the application of SO40, Sturgeon’s challenge to SO40 was strictly facial. As such, the court denied all requests for judicial notice (and declined to rule on all evidentiary objections), as only the language of SO40 was relevant. Concluding that there was no total and fatal conflict with section 1373, the trial court held that SO40 survived Sturgeon’s facial challenge. The court also concluded that SO40 is not otherwise preempted by federal law, and that since Penal Code section 834b is preempted, SO40’s conflict with that statute is irrelevant. Summary judgment was granted. Judgment was entered in favor of defendants and interveners. Sturgeon filed a timely notice of appeal.

ISSUES ON APPEAL

We first consider whether the trial court erred in determining that Sturgeon brought only a facial, not an as-applied, challenge to SO40; we conclude the trial court did not err. We next conclude that Sturgeon’s facial challenge is insufficient to enjoin the enforcement of SO40, and SO40 is not otherwise preempted by federal immigration law. Finally, we agree that Penal Code section 834b is preempted, and thus cannot pose a challenge to the enforcement of SO40. We therefore will affirm the judgment.

DISCUSSION

1. Standard of Review

“ ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 , 1107 [ 252 Cal.Rptr. 122 , 762 P.2d 46 ].) The pleadings define the issues to be considered

individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied, or (2) an injunction against future application of the statute or ordinance in the allegedly impermissible manner it is shown to have been applied in the past. It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right.” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084.) “If a plaintiff seeks to enjoin future, allegedly impermissible, types of applications of a facially valid statute or ordinance, the plaintiff must demonstrate that such application is occurring or has occurred in the past.” (Ibid.)

On appeal, Sturgeon argues that the facial/as-applied distinction applies only to challenges to statutes and ordinances, not policies or practices. Sturgeon fails to cite any authority which has held that this distinction does not apply to policies or practices.^[12] Instead, he bases his argument on the premise that statutes and ordinances are accorded a presumption of validity which does not apply to mere policies or practices, and he notes the existence of several cases in which policies or practices were challenged without the court determining whether the challenge was facial or as-applied. (E.g., White v. Davis (1975) 13 Cal.3d 757 [ 120 Cal.Rptr. 94 , 533 P.2d 222 ].) We are not persuaded. When a duly authorized policy is challenged as unconstitutional, recent authority has, in fact, considered whether the challenge is facial, and has accorded the policy the same deference accorded a facially challenged statute or regulation. (American Civil Rights Foundation v. Berkeley Unified School Dist., supra, 172 Cal.App.4th at p. 216 [under a facial challenge to a school board’s student assignment policy, the challenger must establish that no set of circumstances exists under which the policy would be valid].)

court turns first to the words themselves for the answer.’ ” [Citations.] “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) ....”’ [Citation.] We give the language of the statute its ‘usual, ordinary import and accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A constmction making some words surplusage is to be avoided.’ ” (Kane v. Hurley (1994) 30 Cal.App.4th 859 , 862 [ 35 Cal.Rptr.2d 809 ].)

The text of SO40 provides: “Officers shall not initiate police action where the objective is to discover the alien status of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry).” The text of section 1373(a) states: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [ICE] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Consideration of both of these provisions demonstrates that there is no total and fatal conflict.^[13]

SO40 does not address communication with ICE; it addresses only the initiation of police action and arrests for illegal entry. Section 1373(a) does not address the initiation of police action or arrests for illegal entry; it addresses only communication with ICE. Sturgeon argues a total and fatal conflict exists, because the language of section 1373(a) which prohibits local entities from “in any way restricting]” the sending of information to ICE should be read to strike down local prohibitions on obtaining information that might later be sent to ICE. We disagree. Section 1373(b) prohibits local entities from restricting government entities from maintaining immigration information and exchanging such information with any other entity. Clearly, if Congress had wanted to prohibit restrictions on local entities obtaining such information, it could have expressly so legislated. Moreover, if “in any way restrict[ing]” communication with ICE is read to include obtaining information to give ICE, there would be no need for section 1373(b) to specifically permit local entities to maintain immigration information and exchange it with other governmental entities as, clearly, maintaining such information and obtaining it from other governmental entities makes the information available to be transmitted to ICE. In short, Sturgeon’s strained

to the accomplishment of that intention.^[14] Obstacle preemption arises when a state statute or regulation “ ‘ “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” ’ ” (In re Jose C., supra, 45 Cal.4th at p. 551.) It cannot seriously be disputed that Congress’s objective in enacting section 1373 was to eliminate any restrictions on the voluntary flow of immigration information between state and local officials and ICE; indeed, the express language of section 1373 does just that. Nonetheless, we do not conclude SO40 is preempted for the same reason we did not conclude that it was unconstitutional: as a general rule, enforcement of SO40 has no effect on the voluntary flow of immigration information between LAPD officers and ICE. SO40 addresses only the initiation of investigations (and a prohibition on misdemeanor arrests); it does not, by its terms, restrict LAPD officers from voluntarily contacting ICE. Without any indication that SO40 is actually interpreted to conflict with section 1373, we will not find preemption based only on a hypothetical situation. (Solorzano v. Superior Court (1992) 10 Cal.App.4th 1135 , 1148 [ 13 Cal.Rptr.2d 161 ] [stating “mere speculation about a hypothetical conflict is not the stuff of which preemption is made”].)

5. Penal Code 834b Creates No Bar to SO40, As It Is Preempted

Sturgeon’s final argument is that SO40 violates Penal Code section 834b. That Penal Code section was enacted by Proposition 187, and governs law enforcement cooperation with ICE. It provides that every law enforcement

agency in California “shall fully cooperate” with ICE “regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.” (Pen. Code, § 834b, subd. (a).) With respect to any such person, the statute requires that law enforcement “[a]ttempt to verify the legal status of such person” as a citizen, lawful permanent resident, lawful temporary resident, or alien present in violation of immigration laws. (Pen. Code, § 834b, subd. (b)(1).) If it appears that the person falls into the latter category, law enforcement is required to notify the person of his or her apparent illegal status “and inform him or her that, apart from any criminal justice proceedings, he or she must either obtain legal status or leave the United States.” (Pen. Code, § 834b, subd. (b)(2).) Law enforcement is also required to notify the California Attorney General and ICE of the apparent illegal status of the arrestee. (Pen. Code, § 834b, subd. (b)(3).) Penal Code section 834b, subdivision (c) expressly provides: “Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.”

In 1995, shortly after the voters adopted Proposition 187, the United States District Court for the Central District of California concluded that Penal Code section 834b, in its entirety, was preempted as an impermissible regulation of immigration.^[15] (League of United Latin American Citizens v. Wilson, supra, 908 F.Supp. at p. 771.) This conclusion has been acknowledged in California courts. (Fonseca v. Fong, supra, 167 Cal.App.4th 922 , 933-935.)

The district court’s opinion that Penal Code section 834b was preempted predated Congress’s 1996 enactment of section 1373. Sturgeon argues that section 1373 undermines the district court’s finding of preemption, because section 1373 encourages cooperation between local police and ICE.^[16] We disagree. “[A] state law invading an area reserved exclusively to the federal government under the Constitution cannot be saved by a congressional enactment.” (Fonseca v. Fong, supra, 167 Cal.App.4th at p. 928, fn. 7.) Penal Code section 834b was preempted as an impermissible regulation of