Court: Oklahoma cannot enforce some HB1804 provisions

[Jeanfromfillmore]

Court: Oklahoma cannot enforce some HB1804 provisions


DENVER -- An appeals court ruled Tuesday that Oklahoma cannot enforce two employment provisions in House Bill 1804, the state's immigration control law, but allowed a third employment part of the law to be enforced.

The 10th U.S. Circuit Court of Appeals 3-0 upheld a preliminary injunction against provisions that:

# Prohibit firing of workers legally in the country while retaining workers illegally in the country.


# Require businesses that contract with individual private contractors to obtain documentation that the individuals are authorized to work or, without documentation, withhold taxes at the top rate.


The court's action on those two provisions means they will not be enforced, pending further legal action.

The court overturned a preliminary injunction against enforcement of a third part of the law. That portion requires employers to use a federal computer system to verify eligibility of job seekers. The provision only affects businesses that contract with government entities for physical performance of services, such as building roads or bridges.

The court's action on that part of law means it will go into effect, though it is unclear when.

House Bill 1804, known as the Oklahoma Taxpayer and City Protection Act of 2007, is one of numerous laws that states have enacted in recent years to regulate illegal immigration and verification of employment eligibility.

The decision of the Denver-based court sided with various business interests -- including national, state and local chambers of commerce -- in concluding that the first two provisions are preempted by federal law.

U.S. District Judge Robin Cauthron in Oklahoma City issued the preliminary injunction in June 2008 against all three employment provisions of the law.

The court battle attracted national attention because of the implications the case has for other states.

The judges said the two provisions that can not now be enforced are likely to be held unconstitutional.

The Oklahoma attorney's general's office, which represented the state in court in defending the provisions, had no immediate comment on Tuesday's decision.

"Our attorneys are reviewing the ruling" and preparing for issues regarding a permanent injunction, spokesman Charlie Price said. He said no schedule has been set for when Cauthron will have hearings regarding a permanent injunction or other aspects of the case.

An assistant attorney general told the judges at an earlier stage of the case that Oklahoma legislators had the authority to pass the provisions to protect "the taxpayers and legal residents of Oklahoma from suffering the adverse effects of illegal aliens."

The U.S. Chamber of Commerce took the lead in the court battles.

"If forced to comply with the Oklahoma Act, the Chamber's members will face a significant risk of suffering financial harm," the judges concluded in barring enforcement of the first two provisions.

Other organizations that sued to stop enforcement of the three employment provisions were the state chamber of commerce, the Oklahoma City and Tulsa chambers, and restaurant and hotel associations in Oklahoma.

The U.S. Chamber did not respond immediately to a request for comment.

Unlike the Oklahoma law, Congress has not made use of the computerized verification system, known as "E-Verify," mandatory for employers.


Read more from this Tulsa World article at http://www.tulsaworld.com/news/artic...561&rss_lnk=14

[Jeanfromfillmore]

Court: Part of Okla. immigrant law enforceable now
By TIM TALLEY
OKLAHOMA CITY
A federal appeals court panel on Tuesday upheld much of an injunction against Oklahoma's tough anti-illegal immigrant law but said the state can now force public contractors to cross-check employee names against a government list of eligible workers.
In a divided opinion, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver ruled that the U.S. Chamber of Commerce and several other pro-business groups had legal standing to challenge Oklahoma's immigration law.
The law sought to subject businesses that hire illegal immigrants to financial penalties, dictate who can and cannot be fired and require contractors to withhold taxes for workers without proper documentation.
The panel said that though the plaintiffs would likely triumph with most of their claims, Oklahoma can direct employers to a federal database of workers eligible to work in this country.
The judges also granted Attorney General Drew Edmondson some immunity from the lawsuit.
The case will now be returned to the U.S. District Court in Oklahoma City for a judge to decide whether a permanent injunction against the law should be issued, said Charlie Price, a spokesman for Edmondson.
"The court overturned one provision and upheld the other two," Price said. "Our attorneys are still reviewing the ruling, and we'll be preparing for the issues in regards to permanent injunctions before the district court."
Rep. Randy Terrill, R-Moore, who authored the law, said the state has not decided its next course of action. The state can ask for a rehearing before the 10th Circuit, appeal the case to the Supreme Court or allow it to proceed before U.S. District Judge Robin Cauthron, who blocked enforcement of the law.
Terrill described as "hugely significant" the court's decision to allow the state to require use of an Internet-based system of employment authorization for public contractors.
"We could potentially make it mandatory for all businesses if we wanted to do so," Terrill said. "I have not made that decision yet."
Business groups had argued Oklahoma was pushing immigration law enforcement onto the backs of employers. The state argued the Oklahoma Taxpayer and Citizen Protection Act of 2007 was needed because "illegal immigration is causing economic hardship and lawlessness in this state."
The plaintiffs will be allowed to challenge a provision in the law that bars businesses from discharging workers who are known U.S. citizens or permanent residents while retaining illegal immigrant workers.
The court also rejected Oklahoma's claim that requiring contractors to withhold taxes for undocumented workers was a tax issue and not a civil penalty.
"Its purpose is to regulate conduct rather than to raise revenue," U.S. Circuit Judge Carlos Lucero wrote for the panel.
The judges did allow Oklahoma to require public agencies or private businesses that do work for public institutions to refer to an Internet-based government list of eligible workers when hiring. Those employers would be barred from hiring anyone who is not the Basic Pilot program list. At the national level, participation in the program is voluntary.
Oklahoma's decision to make the program mandatory in spite of Congress' determination that it should be voluntary indicates the chambers of commerce will likely succeed in showing that the state has undermined Congress' judgment, according to the court ruling.
"The balance of equities tips in the chambers' favor, and the public interest is served by an injunction," the decision says. "Oklahoma does not have an interest in enforcing a law that is likely constitutionally infirm."
The harshest provisions of the law were set to take effect July 1, 2008, but Cauthron blocked enforcement a month before.
Provisions of the law that survived included a prohibition on transporting or harboring an illegal immigrant and a prohibition against illegal immigrants receiving most public assistance or taxpayer-funded benefits.
http://www.businessweek.com/ap/finan.../D9DKP06G5.htm