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nited States District Court, N.D. Oklahoma.
NATIONAL COALITION OF LATINO CLERGY, INC; Conlamic-Oklahoma; Church Eficaz;
Church Piedra Angular; T-Mac Construction, Inc.; Chilino's Restaurant; John
Doe One; John Doe Two; John Doe Three; John Doe Four; John Doe Five; John
Doe Six; John Doe Seven; Jane Doe One; Jane Doe Two; Jane Doe Three; Jane
Doe Four; Jane Doe Five, et al., Plaintiffs,
v.
Brad HENRY, Governor of the State of Oklahoma, and Drew Edmondson, Attorney
General of the State of Oklahoma, Defendants.
Slip Copy, 2007 WL 4390650 (N.D.Okla.)
No. 07-CV-613-JHP.
Dec. 12, 2007.
Cynthia Gail Mirkes, Rohit C. Sharma, Sharma Law Firm, PLLC, Tulsa, OK,
Williams J. Sanchez-Calderon, Sanchez Law LLC, Miami, FL, for Plaintiffs.
Kevin Lynn McClure, M. Daniel Weitman, Sandra D. Rinehart, Office of the
Attorney General, Oklahoma City, OK, for Defendants.
ORDER AND OPINION
JAMES H. PAYNE, District Judge.
*1 Before the Court are Defendants' Motion to Dismiss First Amended
Complaint [Docket No. 35]; Plaintiffs' Response in Opposition to the Motion
[Docket No. 36]; and Defendants' Reply to the Response [Docket No. 37]. For
the reasons set forth below, the Motion is GRANTED.
BACKGROUND
A. Factual Background
On May 1, 2007, the Oklahoma Legislature passed the Oklahoma Taxpayer and
Citizen Protection Act of 2007 ("the Act").FN1 On May 8, 2007, Oklahoma
Governor Brad Henry signed the Act into law, with a significant portion of
the Act to become effective on November 1, 2007. The Legislature apparently
intended for the Act to combat the perceived illegal immigration problems
faced by the state of Oklahoma.
FN1. The Act is also referred to by some as "House Bill 1804" or "HB
1804".
The Act is made up of fourteen distinct sections, eleven of which are
substantive provisions. Ten of the eleven substantive sections went into
effect in full on November 1, 2007. Parts of Section Seven of the Act do not
go into effect until July 1, 2008. The eleven sections are now scattered
throughout various titles of the Oklahoma Code, separate and distinct laws
sharing little more than a common reason for enactment:
What was known as "Section Three" of the Act is now codified as Okla.
Stat. tit. 21, 446. Section 446 creates criminal sanctions for certain
instances of transporting, concealing, harboring or sheltering an illegal
alien.
"Section Four" of the Act is now codified as Okla. Stat. tit. 21,
1550.42. Section 1550.42 regulates who may create identification documents
and limits the issuance of certain types of such documents to United State
citizens, nationals, and legal permanent resident aliens.
"Section Five" of the Act is now codified as Okla. Stat. tit. 22, 171.2.
Section 171.2 creates a rebuttable presumption that a person who has been
determined to be an illegal alien is a flight risk for purposes of the
issuance of bail.
"Section Six" of the Act is now codified as Okla. Stat. tit. 25, 1312.
Section 1312 simply defines some of the terms contained within "Section
Seven" of the Act.
"Section Seven" of the Act is now codified as Okla. Stat. tit. 25, 1313.
Section 1313 requires public employers to use a Status Verification System
to verify the federal employment authorization status of all new employees.
After July 1, 2008, 1313 will prohibit public employers who do not use a
Status Verification System from entering into any contracts with the state.
Section 1313 will also allow United States citizens who are discharged from
their job to sue their employer, if the employer has on their payroll an
illegal alien hired after July 1, 2008. Employers who participate in a
Status Verification System are immune from any suit arising out of 1313.
"Section Eight" of the Act is now codified as Okla. Stat. tit. 56, 71.
Section 71 requires every state agency to verify the citizenship status of
anyone applying for most types of state, local, or federal benefits
administered by the agency. Applicants for benefits must verify their legal
status by executing an affidavit attesting to their lawful presence in the
United States.
*2 "Section Nine" of the Act is now codified as Okla. Stat. tit. 68,
2385.32. Section 2385.32 requires those contracting with individual
independent contractors to withhold state income taxes at the top marginal
rate if the individual independent contractor fails to provide documentation
of his or her lawful presence in the United States.
"Section Ten" of the Act is now codified as Okla. Stat. tit. 74, 20j.
Section 20j authorizes and directs the Attorney General of Oklahoma to
negotiate a memorandum of understanding between the State of Oklahoma and
the United States Department of Justice or the United States Department of
Homeland Security. The memorandum would deal with the enforcement of federal
immigration and customs laws, detention and removals, and investigations in
the State of Oklahoma. Section 20j (E) also prohibits persons and agencies
from prohibiting, or in any way restricting, the exchange or maintenance of
information regarding the legal status of any individual. Section 20j also
creates a private cause of action by any legal person lawfully domiciled in
the state to file for a writ of mandamus compelling any non-cooperating
local or state governmental agency to comply with 20j(E).
"Section Eleven" of the Act is now codified as Okla. Stat. tit. 70,
3242.2. Section 3242.2 makes most illegal aliens ineligible for any
post-secondary educational benefit, including scholarships, financial aid,
and resident tuition.
"Section Twelve" of the Act is now codified as Okla. Stat. tit. 74,
151.2. Section 151.2 creates a state Fraudulent Documents Identification
Unit as part of the Department of Public Safety.
"Section Thirteen" of the Act is now codified as Okla. Stat. tit. 70,
3242. Section 3242 simply sets forth standards for determining the
eligibility for post-secondary educational benefits.
B. Procedural Background
A group of plaintiffs filed a lawsuit challenging the constitutionality of
the Act on October 15, 2007 (Case No. CIV-07-594). Those plaintiffs sought a
declaration of unconstitutionality as well as a permanent injunction
enjoining the enforcement of the Act. In an October 22, 2007 order, the
Court addressed the concerns it had over the broad nature of the plaintiffs'
complaint:
While a constitutional vetting of HB 1804 would serve the interest of all
parties to this litigation, the interest of the public would best be served
by a sharpening of the issues presented prior to such a vetting. Such a
sharpening can only be achieved through a suit brought by Plaintiffs with
well-defined injuries causally connected to HB 1804.
National Coalition of Latino Clergy, Inc. v. Henry, No. CIV-07-594, slip op.
at 11 (N.D.Okla. October 22, 2007). The Court was convinced that by
narrowing the issues, and by limiting the pool of plaintiffs to those who
had actually been injured by the Act, the more troublesome provisions of the
Act could receive the vigorous and focused constitutional scrutiny that the
law demands. Unfortunately, that constitutional scrutiny was rendered
impossible by the plaintiffs' failure to establish standing in their
complaint, and the Court dismissed the suit sua sponte, holding that the
plaintiffs lacked Article
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