The State of Arizona is currently defending seven lawsuits, including actions filed by the U.S. Justice Department, civil rights groups, and two police officers, contesting the state’s controversial immigration law. In the suit brought by the Justice Department, the trial judge recently granted the Department’s motion for a preliminary injunction, preventing parts of the Arizona statute from going into effect while the Department’s case is being tried. In particular, the trial court ordered that law enforcement officers NOT check a person’s immigration status after a lawful stop or arrest for another offense, even if probable cause exists to believe the person is an illegal immigrant.
If you understand the grounds on which a preliminary injunction is granted, you’ll see why this is a big deal. A motion for a preliminary injunction is filed before there’s been a trial of the case on the merits. In other words, the trial judge is asked to rule on this kind of motion before he or she has heard any testimony or seen any documentary evidence to speak of. The motion is based on the contention, by the party making the motion, that the judge has to freeze the relationship between the parties, maintaining the status quo, until after a trial on the merits is concluded and a final order is entered in the case.
To obtain this kind of order, the party asking for the injunction has to show:
- Reasonable likelihood of success on the merits of the case;
- Irreparable harm if an injunction is not issued;
- Balance of hardships is tipped in its favor ; and
- Public interest that is not negatively impacted.
Clearly, in light of these factors, by enjoining the implementation of the Arizona immigration law, the trial judge signaled that, at least for now, she is in substantial agreement with the Justice Department’s side of the case.
Because the injunction basically gutted the Arizona law and signaled that the judge’s eventual ruling in the case will probably be adverse to Arizona, the state has appealed that ruling to the Ninth U. S. Circuit Court of Appeals.
Two amicus curiae briefs have recently been filed in that appeal, and both have a Nebraska connection. Amicus is Latin for “friend”. Curiae is also a Latin word, roughly translated as “court” in this phrase. So, an amicus curiae brief is a legal brief submitted by a “friend of the court”. Typically, such briefs are submitted by persons or groups who are not parties to the lawsuit themselves, but who have a strong interest in the case and want to weigh in on the side of one of the parties to the action. They must first get the permission of the court before submitting any written arguments for the court’s consideration.
So, what are the Nebraska connections, and whose side is Nebraska taking in the appeal?
The first Nebraska connection to the case was reported on September 1, 2010, when two members of the State Legislature issued press releases indicating that, in their capacity as members of a group called State Legislators for Legal Immigration, they had participated in the filing of a brief in the appellate court in support of the Arizona law. Senator Tony Fulton said he did so because he supports “a balanced federalism” in which the states have a role to play in enforcing national immigration policy. Senator Charlie Janssen stated that he did so to support the principle of dual-sovereignty, which he characterized as “one of the most important foundations in our system of government.”
Nebraska’s second connection to the appeal became public on September 4th when media reports named Nebraska as one of eleven states joining in an amicus brief filed in the appeal by Michigan’s Attorney General. Once again, Nebraska has weighed in on the side of Arizona, in defense of that state’s immigration statute. The states’ brief argues that the trial judge was wrong to block key provisions of the law, that the judge used the wrong legal standard to rule on the U.S. Justice Department’s request for a preliminary injunction, and that the judge erred in ruling that the law interferes with the executive branch’s immigration enforcement priorities.
Only time will tell how the Ninth Circuit Court will rule on the appeal. Unfortunately for Arizona and its supporters, the Ninth Circuit is considered the most liberal U.S. Circuit Court in the nation.
Georgia Tech, source of the graphic at the top of this article, has a section on its website with clear explanations about our federal court system. Click HERE to visit the site.