Category: Montana

On December 7, 2012, the Montana Immigrant Justice Alliance (“MIJA”) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121. On June 20, 2014, Judge Jeffrey Sherlock of the First Judicial District Court struck down the vast majority of law, which would have required state agencies to determine an applicant’s citizenship or immigration status before granting a wide variety of state services. The law would have required denial of serves like unemployment insurance benefits, licenses to practice trades or professions, enrollment in state universities, crime victim services, and infant hearing screenings to those who cannot prove their citizenship or immigration status.

Litigation Updates:

12/19/2012 Update: Judge Sherlock has ordered the government Defendants to appear on February 7, 2013 at 10:00 am to “show cause why Plaintiffs’ application for a preliminary injunction should not be granted.”

01/28/2013 Update: We are pleased that two of the defendants in this litigation do not oppose our request for a preliminary injunction to stop LR-121 from being implemented. The Board of Regents and Commissioner of Higher Education are asserting that LR-121 is unconstitutional because it infringes on their authority to control the Montana University System, and we agree with their position.

02/07/2013 Update: The Honorable Judge Jeffrey Sherlock held a hearing on our request to enjoin the law, so that it cannot be enforced while our lawsuit is pending. Plaintiff Alisha Blair courageously testified about how LR-121 would affect her . She was joined by Andrea Carlson, a member of MIJA who was recently in removal proceedings until immigration attorney Shahid Haque proved her citizenship. Ms. Carlson was recently in the news herself when she took her oath of citizenship.

03/20/2013 Update: The State of Montana filed a motion to dismiss our lawsuit for lack of standing — contending that the Plaintiffs have not demonstrated that anyone would be harmed by LR-121. Today, we filed our response to challenge the state’s assertions, attaching affidavits of nine MIJA members who came forward to tell the court how they would be injured by LR-121. These affidavits share compelling stories about the real human beings who will be caught up in this badly designed law. Several of these members entered the United States illegally, but went through long and difficult processes to get their green cards. They now live here legally with their families. Nevertheless, LR-121 conflicts with federal law by saying that anyone who illegally entered the country is an “illegal alien” and will be denied state services — even if they now have green cards.

03/28/2013 Update:  Judge Sherlock has granted a partial temporary restraining order, issuing “limiting constructions” on the ways that the State of Montana can implement LR-121. This order is significant because it constitutes the first decision in the State of Montana to address the constitutionality of any state-level enforcement of federal immigration laws. Please read the details here.

06/05/2013 Update:  Judge Sherlock has rejected the Montana Attorney General’s efforts to dismiss our lawsuit, and has ruled that the Montana Immigrant Justice Alliance (MIJA) has standing to challenge LR-121 on behalf of its members, who have a reasonable fear that the law will be used to wrongly deny them benefits. Over ten members of MIJA, all of whom were also represented by Shahid Haque in immigration proceedings, came forward to tell the court how they would be impacted by LR-121. This story was also reported in the Great Falls Tribune.

05/29/2014 Update:  We have completed extensive briefing and had a hearing before Judge Sherlock on both parties’ motions for summary judgment. We asked the Judge to enter judgment, without a trial, on the issue of federal preemption.  The hearing went well, and we will await a decision as soon as Judge Sherlock can get to it. We believe we have proven that LR-121 is preempted by federal law.

06/20/2014 Update: Judge Jeffrey Sherlock of the First Judicial District Court struck down the vast majority of Montana’s voter-approved law requiring state agencies to determine an applicant’s citizenship or immigration status before granting a wide variety of state services. Judge Sherlock ruled in MIJA’s favor, holding that the mandates upon state agencies to determine immigration status, and deny a wide variety of state services to “illegal aliens,” are preempted by federal law as an impermissible regulation of immigration.

What is LR-121?

LR-121 was placed on the ballot by the 2011 Montana Legislature, and voters approved the referendum on November 6, 2012. However, the full implications of this referendum may not have been apparent to Montana voters when they cast they ballot. Voters were simply asked if they were FOR or AGAINST denying certain state services to illegal aliens. However, the ballot language did not adequately express the new burdens that all Montanans, including U.S. citizens, will have to face before accessing state services.

LR-121 imposes a sweeping new regulatory scheme that will affect the constitutional rights of almost all Montanans who apply for or use state services. The law now requires all Montanansto present documents to prove their citizenship or immigration status before accessing state services. The burden is now on the average Montanan to prove that they are here legally, or else they will be denied state services. The new law also subjects applicants to being screened through a federal database to confirm immigration status, and gives state agencies unrestricted authority to report applicants to the federal government if information cannot be confirmed.

How Will This Law Impact the Average Montanan?

For the first time in Montana’s history, the state will be requiring citizens to start carrying certain papers and presenting them before they can access basic state services. To be clear, the law imposes a mandate that all applicants for services to be screened for citizenship or legal immigration status, which includes every Montana resident. This imposes a restriction on the fundamental right to pursue life’s basic necessities as provided in Article II, Section 3 of the Montana Constitution.

The services that will now be conditioned on proof of citizenship include employment with a state agency, attendance a public university, ability to obtain student financial assistance, ability to obtain a license or permit to practice a trade or profession, eligibility for unemployment insurance, services for victims of crime, vocational rehabilitation, and certain services for the physically disabled.

Not All Montanans Have Proof of Their Citizenship

Not all Montanans have readily-available proof of their U.S. citizenship — in fact, studies show that nationally, about 7% of the population don’t have these documents. There are typically only two ways to prove you are a citizen: by providing a birth certificate or a U.S. passport. For many reasons, there are Montanans who don’t have copies of their birth certificates, and who have never gotten passports. Under this law, Montanans are losing privacy protections — state agencies are going to ask for your identity documents for basic services and deny you services if you can’t provide them.

In addition, due to the complexities of federal immigration law and the facts and circumstances of an individual’s life, a person can be a lawful U.S. citizen, and a resident of Montana, but lack documentary proof of their citizenship. For instance, Alisha Blair is a U.S. citizen who may be wrongly denied services under this law. Ms. Blair is a 22 year-old who grew up in Sunburst, Montana who automatically acquired U.S. citizenship at birth. She was born in Canada and has been residing in Montana since she was one year old. Her U.S. citizenship was transmitted to her at birth through her U.S. citizen father by operation of federal law, but she has never had any documents to prove her citizenship.

Our complaint includes an affidavit from Ms. Blair and another individual with a similar situation.  The plight of a 65-year-old teacher from Fairfield, Montana  provides another example of the type of person who will be caught in this system. There are many more lawful Montana citizens like these individuals who will be wrongly denied services under this law. By treating lawful Montana residents differently, without any legitimate reason, the law violates the equal protection clause of the Montana Constitution.

Ineffective Screening Through Federal Databases

If you don’t have documents to prove your citizenship of lawful resident status, the referendum suggests that state agencies can screen you through the Systematic Alien Verification for Entitlements (“SAVE”) system, a federal database that charges between $.50 and $2.00 for each search in the system. However, there is a significant limitation with this system: The SAVE program does not contain any information on native-born U.S. citizens, or most individuals who entered the country without inspection. SAVE can only verify information contained in immigrations records. Therefore, it only includes information on individuals who have applied for or received certain immigration benefits through interaction with relevant agencies within the U.S. government.

There is no federal database that is available to the State of Montana for benefit eligibility determinations that would provide a comprehensive listing of all U.S. citizens.

This means that in some ways, native-born U.S. citizens may have a harder time proving their status than a lawfully residing immigrant, because if you don’t have the documents in hand, there is no alternate way to verify your U.S. citizenship. Before implementing this law, state agencies must be called upon to explain how they can implement this law without violating the rights of U.S. citizens.

Violations of the Right to Privacy and Due Process

Under LR-121, lawful Montana citizens who don’t have proof of citizenship may be wrongly denied services that they are entitled to as taxpayers. To make matters worse, there are no due process protections outlined in the law, so there is no clear way to challenge a state agency’s decision if you are wrongly denied services.

There are also no restrictions in the law to protect privacy interests and limit dissemination of the information that is collected. When lawfully present U.S. citizens like Plaintiff Alisha Blair apply for state services, there is nothing prohibiting the State from classifying them as “illegal aliens” and then calling upon the Department of Homeland Security to investigate them. Indeed, the Act provides unrestricted discretion to state agencies to classify any applicant who cannot prove to the State’s satisfaction that he or she is a U.S. citizen as an “illegal alien” and report the individual to DHS.

Montanans value the privacy protections in our Constitution — protections that are greater than provided under federal law and most other states. That’s why we’ve fought back against attempts to create a national identification card, and led the nation in rejecting the federal REAL ID laws. However, based on the misguided goal of targeting undocumented immigrants (even anti-immigrant
groups estimate there are only 5,000 in our state) this referendum has subjected the State of Montana and its residents to far more invasive requirements than REAL ID ever contemplated.

Preemption by Federal Law

Not only does this burdensome regulatory scheme impact our constitutional rights, but it also violates federal law. Under the Supremacy Clause of the U.S. Constitution, the federal government alone has the power to enact and to enforce regulations concerning which non-citizens to admit, exclude, remove or allow to remain in the United States. The federal government has exclusive authority to classify non-citizens within this framework of laws regulating immigration. The states may not create their own distinct classifications of immigrants that differ from the classifications created by federal law.

LR-121 is preempted by federal law because it utilizes its own classification of non-citizens that conflicts with federal law. Section 6(b) of the Act defines an “illegal alien” as “an individual who is not a citizen of the United States and who has unlawfully entered or remains unlawfully in the United States.” The term “illegal alien” is not defined in the Immigration and Nationality Act (“INA”) or other federal laws regulating immigration, and the definition in this law conflicts with federal laws because there are numerous categories of noncitizens who illegally entered the United States, but do not illegally remain in the United States.

This is not a mere technicality, as this definition alone makes the law unconstitutional under the Supremacy Clause of the U.S. Constitution. The State of Alabama recently passed its own state law regulating immigration, and one provision was recently enjoined for the same reason, where it tried to create a separate classification of non-citizens who are entitled to different rights and privileges.

Conservatives and Progressives Alike Should Be Concerned About This Law

Whether you are a conservative or a progressive — Democrat or a Republican — LR-121 is bad policy for the State of Montana. Montana is one of the states with the least numbers of immigrants in the whole country. The violation of our privacy rights, delays or wrongful denial of services, and extra cost to the state are simply not justified by the stated goal of denying services to undocumented immigrants.

According to the Montana Budget and Policy Center, the cost to the State of Montana of implementing this law will be far higher than any savings from denying services to undocumented immigrants. In a time when the Montana Legislature is seeking to cut services to increase the budget surplus, this burdensome new regulatory scheme is counterintuitive.

Who is Representing the Plaintiffs in this Lawsuit?

This litigation is being done on a pro bono basis by Shahid Haque of the Border Crossing Law Firm, P.C. (also Executive Director of MIJA) and he was assisted by Brian J. Miller of Morrison, Motl and Sherwood, PLLP.

Contact Us

In addition, if you are a U.S. citizen or lawful resident who does not have proof of your citizenship, or are concerned about how this law will impact you, please contact us.

On October 29, 2012, Professor Alan Hansen of Carroll College hosted a forum to discuss LR-121, the “proof of citizenship” referendum.  The speakers were Shahid Haque (founder of the Border Crossing Law Firm, P.C. and President of the Montana Immigrant Justice Alliance “MIJA”), Moe Wosepka (Executive Director of the Montana Catholic Conference), and Professor Jeremy Johnson.  

HCTV recorded the event for broadcast, and has approved re-posting the event online.Please check out this video for an analysis of LR-121 and immigration policy in Montana from multiple different perspectives.

Families who want to come to America, work in America, raise families in America ought to be welcome because that’s the thread that has made this blanket so warm in this country. We need to have a system that allows people a path to citizenship. That’s the way we’ve done it for the last 150 years.”  – Governor Brian Schweitzer, 2008.

Governor Brian Schweitzer is well known for speaking his mind, and as he approaches the end of his term in office, he remains one of the most popular governors in the country.  What many Montanans may not know is that Governor Schweitzer also has a very unique and refreshing perspective on the issue of immigration.

Governor Schweitzer is half Irish and half Ukranian, and when he recently delivered the keynote address at the Ohio Democratic Party’s annual dinner, he told the story of his grandmother’s illegal entry to the United States.  She used a passport and visa that was meant for her sister, and entered the United States through what we would call “visa fraud” today.  The story is told in riveting fashion by the Governor:Governor Schweitzer has been very open about how his family history has impacted his views on immigration, and many of us have been fortunate enough to hear him tell this story before.  He also shared his thoughts on immigration in an interview with the Iowa Independent in 2008, where he also talked about his father’s side of the family:

My father’s family were homesteaders in Montana and they came from Ukraine but they were German speakers. They were so-called German-speaking Russians.While his parents and their parents had never been to Germany, when World War I came around, they were discriminated against across this country and they passed the Sedition Act and made it against the law to speak or read in German in Montana.My father served in World War II, but since German was his first language, there was always a concern about ‘Is he a patriot or not?’And my grandmother, she never learned to speak English, only German. My parents, they kind of kept us away from her because they saw it as a detriment to be able to speak German.

Governor Schweitzer notes that the disfavored immigrant groups have changed over the years, depending on social and political factors.

Some say that the derogatory term “wop” actually stands for “without papers” and that they referred to all of the Italian immigrants for a time that way.. . .My first day of school, I’m going to school, and my mother sits me down — and I just went to a little country school, nine kids in my class — and she said, because by this time it’s 1961 and we are in the Cold War, “If anyone asks you about the name Schweitzer, don’t tell them we’re Russian, tell them we’re German.”So it swings back and forth in this country, and it has for a long time.

Immigration policy is not a debate that just happened this year. We’ve been debating it for 150 years.  There’s an ebb and flow. The bottom line is almost everybody here comes from an immigrant family including myself.

In a time when many politicians are quick to attack and scapegoat new immigrants, we are grateful that Governor Schweitzer has internalized the experiences of his youth and understands that we must be welcoming to our newest immigrants.As Governor Schweitzer states of those who would deport everyone who is the product of illegal immigration:

On that basis Mitt Romney would send the Governor of Montana back to Ireland. That’s my story. What is yours?

Thanks to Governor Schweitzer for his willingness to share his thoughts on immigration and the need for reform.

Shahid Haque, founder of the Border Crossing Law Firm, P.C., had fun talking to Kev Hamm for this week’s episode of his podcast, PoliticktickBOOM!

We discussed LR-121, the state of Montana’s anti-immigrant referendum, the anti-immigrant laws proposed in the Montana legislature, the suspension of the top Immigration and Customs Enforcement officer in the state, and much more.

You can listed to the whole interview here:

Kevin Hamm has been interviewing many important politicians lately, and we suggest checking out his podcast.

LR-121 is a referendum that will be appearing on ballots throughout Montana on November 6, 2012. LR-121 aims to deny a wide variety of state services to Montana residents who cannot prove that they are U.S. Citizens or documented immigrants. This post is designed to serve as a resource on the referendum, discussing how it came to appear on the ballot, what it seeks to do, and why it will be so costly and damaging to the state.

Click here for the complete post.

LR-121 is a referendum that will be appearing on ballots throughout Montana on November 6, 2012.  LR-121 aims to deny a wide variety of state services to Montana residents who cannot prove that they are U.S. Citizens or documented immigrants.  This post is designed to serve as a resource on the referendum, discussing how it came to appear on the ballot, what it seeks to do, and why it will be so costly and damaging to the state.History of the ReferendumUnlike most referendums that are brought by the public and require signature gathering to be placed on the ballot, LR-121 was actually a legislative referral.  The Montana Legislature passed HB 638, a bill brought by Rep. David Howard (R) to place this issue on the ballot as a referendum.  Therefore, by operation of law, the referendum will now be brought before Montana voters in the general election.Rep. David Howard, the proponent of this referendum, had unsuccessfully carried 3 bills in the 2009 session and 6 other bills in the 2011 session to attempt to bring the state into the business of enforcing federal immigration laws.  We have discussed many of these bills on this blog.  All of these other bills were defeated, but his legislative referendum managed to pass both the House and Senate.  The votes were almost completely along party lines, with Democrats voting against the referendum and Republicans voting in support.  Two notable exceptions were Sen. Joe Balyeat (R) and Rep. Liz Bangerter (R) — both of whom split with their party to oppose the referendum.

The Language of LR-121 to Appear on the Ballot

The Montana Secretary of State has certified the following language to appear on the ballot:

AN ACT DENYING CERTAIN STATE-FUNDED SERVICES TO ILLEGAL ALIENS; ESTABLISHING PROCEDURES FOR DETERMINING A PERSON’S CITIZENSHIP STATUS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.LR-121 prohibits providing state services to people who are not U.S. citizens and who have unlawfully entered or unlawfully remained in the United States. Under LR-121, every individual seeking a state service, such as applying for any state licenses, state employment, unemployment or disability benefits, or aid for university students, must provide evidence of U.S. citizenship or lawful alien status, and/or have their status verified through federal databases. State agencies must notify the U.S. Department of Homeland Security of noncitizens who have unlawfully entered or remained in the U.S. and who have applied for state services.The costs associated with verifying U.S. citizenship or lawful alien status will vary by agency and cannot be precisely determined. However, on-going costs may include: hiring and training state personnel to use various federal databases; software, hardware and search charges; and information assessment and management costs.[] FOR denying certain state services to illegal aliens.[] AGAINST denying certain state services to illegal aliens.

In layman’s terms, this bill would insert the federal government between almost every agency in this state and the services they provide to Montana residents.  As discussed below, this bill is part of a misguided effort to use state resources to enforce federal immigration laws, and will be costly and damaging to the state.As you can see, this referendum includes the term “illegal alien” in some sections.  Please refer to this resource for why the term “illegal alien” is offensive and inaccurate.

What State Services Will Be Denied to Unauthorized Immigrants?

The bill would require employees of the State of Montana to serve as federal immigration agents, attempt to determine the immigration status of applicants for services, and deny these services to undocumented immigrants.  They will be required to use a costly “pay-per-use” federal database to perform these checks.  These are the services that are to be denied:

Employment with a state agency. This referendum will require all state agencies to check immigration status and deny employment to anyone who cannot prove U.S. citizenship or authorized status.  There are already federal laws requiring that all applicants for employment complete an Employment Verification Form before starting work.  Most of you are probably familiar with the process — you present certain forms of ID to prove eligibility to work, and then you sign a form.  The federal government has not imposed any additional requirements or mandated the use of their federal system to verify work authorization.  Nevertheless, this referendum seeks to voluntary commit the state to using a costly and time-consuming federal database to screen employees.

Ability to attend any public university in the state. There is no federal law that prohibits undocumented immigrants from attending college.  Most states allow undocumented students to attend college, although they may be required to pay tuition as non-residents of the state.  Under Montana’s current laws, “[t]he university system is open to all people, subject to such uniform regulations as the regents deem proper.”  This referendum would change this and require all students to prove their citizenship or immigration status, and be denied admission if they cannot do so.  Somewhat redundantly, the referendum would also cut off an undocumented student’s ability to get student financial assistance.  Worse, it would require the state to turn any undocumented students over to the federal immigration authorities!

Ability to get a state license or permit to practice any trade or profession. For the first time, this referendum would require state agencies that issue licenses or permits to screen applicants for immigration status.  The requirement would apply to all licenses and permits provided in Title 37, which includes over 75 different professions from barbers to massage therapists and real estate brokers.  One can only imagine the number of applicants that state employees will now be required to screen.  Since current procedures do not require any such screening, this will likely require some significant changes in the licensing and permitting process.

Ability to get unemployment insurance benefits. The referendum would specifically prohibit undocumented aliens from receiving unemployment insurance benefits as provided under law.

Assistance with vocational rehabilitation. Montana law provides for some assistance to help “a person with a disability to enable the person to the extent possible to become independent and productive or employable.”  The referendum would strip undocumented immigrants with such disabilities from getting any rehabilitation.

Services for victims of crime. Under Montana law, there is a Crime Victim Compensation fund to “help innocent crime victims with crime-related medical expenses.”  This includes “lost wages and medical and funeral expenses incurred as the result of personal injury crimes. These crimes include homicide, rape, domestic violence, stalking, assault, child sexual and physical abuse, and drunk driving.”  The referendum would prevent victims of crime who are undocumented immigrants from getting help.

Services for the physically disabled. The referendum oddly seeks to eliminate access to two types of services for physically disabled individuals.  The referendum states that it will deny “services for the physically disabled, as provided in Title 53, chapter 19, parts 3 and 4.”  These are the parts relating to “a program to make specialized telecommunications equipment and services available to persons with disabilities” and “newborn hearing screenings.”  It is troubling that the referendum would deny access to necessary equipment for people with disabilities, and it is quite disturbing that it seeks to deny a simple hearing test to newborns.  It goes without saying that most newborns in Montana are likely U.S. citizens by virtue of being born in this country.

Ability to get a grant. Finally, the referendum seeks to limit the ability to get any kind of grant as provided in Title 90 of the Code.It should be noted that LR 121 appears to be drafted to deliberately create the impression that its scope is even broader than it actually is.  At certain points, the language of the legislative referendum appears sweeping, seemingly reaching to all state services provided to undocumented aliens.  Public perception of a law often shapes its implementation, and the broad language of the referendum will have lasting effects beyond the specific areas outlined above.

How Will the State Verify the Legal Status of Applicants for Services?

This referendum would require the State of Montana to check a costly federal database before granting services to Montana residents.  Montanans have spent years fighting this level of federal intrusion into our day-to-day activities, as evidenced by the vocal opposition to federal REAL ID laws.  However, this referendum would insert a federal government database into almost every agency of the State of Montana — and require us to pay for its use!The federal database that would be used is the Systematic Alien Verification for Entitlements (“SAVE”) system.

The SAVE system is not free.

The federal government charges between $.50 and $2.00 for each search in the system.  The minimum cost is $.50.  When you consider the numbers of applicants for state services, this could quickly add up to millions of dollars.  State agencies will also waste time and resources training employees on how to use this system, and checking it before allowing access to a wide variety of state services.The SAVE system is not a fully computerized system that provides immediate results.  In actuality, this system often fails to ascertain immigration status at the “initial verification” stage, and a secondary or third inspection is required.A report from U.S. Citizenship and Immigration Services (“USCIS”) states that 6% of its checks are not resolved immediately and require secondary or third inspection.  USCIS estimates that secondary inspection can take up to 3-5 working days to complete.  In actuality, applicants have complained of delays of over 15 days.Agencies may be required to process paperwork in the third inspection stage, including a G-845S Document Verification Request.  At this stage, the agency has to make copies of all of the applicant’s immigration papers, fill out a form, and send it to USCIS.  Then, the agency must wait 10-20 working days or longer for a response.

The SAVE System is Similar to REAL ID

Requiring that our state agencies use federal systems to verify access to benefits has an impact on our state sovereignty.  The mandatory use of the SAVE system was a major part of the federal REAL ID law that Governor Schweitzer and the Montana legislature resoundingly rejected in 2007.

It is important for Montanans to realize that this referendum imposes even more sweeping and burdensome requirements than REAL ID.

We Don’t Need this Law in Montana

Montana is one of the states with the least numbers of immigrants in the whole country.  Montanans must consider if enforcing federal immigration laws are worth the delays in service and extra cost to the state.During the 2009 and 2011 legislative sessions, the proponents of anti-immigrant legislation estimated that there are no more than 4,000 undocumented immigrants in Montana.  One can safely assume that far fewer are actually accessing state services.  It would cost the State of Montana far more to implement this law than we are “losing” by providing services to undocumented immigrants.

Fiscal Impact of LR-121

It should be noted that state agencies were asked to complete some fiscal statements, which were woefully inadequate and not well-reasoned.  The true impact of LR-121 will reach far beyond the limited analysis in these agency reports.  You can find a copy of those agency fiscal reports here.

Who is Currently Working to Oppose the Referendum?

For the past six years, an ad hoc coalition of organizations and individuals has worked to defeat over 25 anti-immigrant proposals at the past three legislative sessions.  This coalition has included the Border Crossing Law Firm, P.C., Montana Human Rights Network, the Gallatin Valley Human Rights Taskforce, the Montana Coalition Against Domestic and Sexual Violence, the Teamsters, SEIU Healthcare 775 NW, members of the faith community, individual activists, concerned members of the community, and immigration attorneys.   Without specific funding, the coalition has operated on in-kind contributions of staff time, printing, etc. from organizations as well as volunteer hours and resources from individuals.Many members of this coalition have come back together in an effort to raise resources and run a campaign to educate Montana voters and defeat LR-121.  Please contact me if you can provide any help to defeat LR-121.This article will be updated with more information as it develops.

Pam Bucy is one of two Democratic candidates for Attorney General of the State of Montana.  Last week, we reviewed the voting record of her opponent in the primary election, Jesse Laslovich, regarding state-level enforcement of federal immigration laws.  Unlike Jesse Laslovich, who had served in the Montana Legislature for ten years, Pam Bucy has not previously served in an elected position.  Therefore, she has no voting record on immigration issues that we can analyze.At the a debate last week moderated by Marnee Banks of KXLH, I submitted a question of the candidates:  “What do you believe is the proper role of the state law enforcement in dealing with federal immigration laws?”  (The question does not appear to have been included in the video that was posted online.)  Pam Bucy stated very clearly that the Montana Highway Patrol has no role whatsoever in enforcing federal immigration laws.  Presently, there are no laws permitting the Montana Highway Patrol or any other state or local law enforcement officers to enforce federal immigration laws, but it is still happening on a routine basis.  I have had occasion to review many instances in which law enforcement officers have asked individuals about their immigration status and held them without legal cause while they call Immigration and Customs Enforcement (“ICE”) or check federal databases to determine their immigration status.  Naturally, this practices often results in racial profiling.  I took Pam Bucy’s comments to be a strong rejection of that precedent.Nevertheless, without a voting record to rely upon, it becomes more important to consider any other information that may reflect upon the relevant issues.  To that end, I will recount a professional interaction with Pam Bucy that may shed light on her interpretation of the Montana Constitution, the privacy protections provided under state law, and the role of the state in sharing information with the federal government.  As discussed below, I believe this interaction with Pam Bucy raises some concerns.In the course of a federal lawsuit I was defending, I came across documents revealing that the State of Montana Unemployment Insurance Division had been illegally disclosing confidential personal information for years.  Almost every businesses in Montana must file Quarterly Wage Reports with the State, containing employees’ names, social security numbers, and salary information.  From at least 2005 to 2007 — and likely continuing long after these dates — officers with Immigration and Customs Enforcement (“ICE”) would contact the Unemployment Insurance Division and ask for copies of the Quarterly Wage Reports for businesses that were “under investigation.”  ICE is an agency within the Department of Homeland Security, and is charged with enforcing federal immigration laws.The Unemployment Insurance Division routinely violated Montana’s Constitution and statutes by providing non-redacted copies of all of the requested Unemployment Insurance reports, without any warrant or legal basis for doing so.  In other words, they would disclose confidential information on every single employee, including their names, social security numbers, and wages, without demanding a warrant or even limiting the disclosure to specific individuals who were allegedly under investigation.This allowed ICE to engage in a “fishing expedition” and secretly investigate every employee of a business, without any individual suspicion about each particular employee’s immigration status.  ICE agents could use the names and social security numbers they received from the Unemployment Insurance Division to attempt to ascertain the immigration status of every single employee.  ICE agents used a flawed database to crosscheck their social security numbers, and in some cases they incorrectly transcribed employees’ information.  Therefore, some authorized workers who had done nothing wrong were falsely believed to have invalid social security numbers, and were improperly detained while this was sorted out.On June 28, 2010, I brought this information to the attention of Pam Bucy, then serving as Chief Legal Counsel for the Montana Department of Labor and Industry.  As I stated in my letter:

The warrantless disclosure of the names, social security numbers, and salaries contained in these Unemployment Insurance Reports is strictly prohibited under Montana’s Constitution and statutes.  The Montana Constitution includes a fundamental “Right to Privacy” provision, which provides that:  “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”  Mont. Const., Art. II, § 10.  In addition, the Montana legislature has made its intent clear that the names, social security numbers, and salary information contained in the state’s mandatory Unemployment Insurance reports shall be kept private and confidential.The relevant statute provides:”Information obtained from any individual under this chapter must, except to the individual claimant to the extent necessary for the proper presentation of a claim, be held confidential and may not be published or be open to public inspection, except to public employees in the performance of their public duties, in any manner revealing the individual’s or employing unit’s identity, but any claimant or the claimant’s legal representative at a hearing before the board or appeal tribunal must be supplied with information from the records to the extent necessary for the proper presentation of the claim.”   MONT. CODE ANN. § 39-51-603(3).Therefore, by statute, the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a “public employee” must inspect the information in the performance of “public duties.”  Regardless of what the Unemployment Insurance Division believed when transmitting Unemployment Insurance reports to ICE, employees of the federal government are not “public employees” as contemplated by statute.The term “public employee” refers to employees of the State of Montana, not employees of the federal government.  The relevant statute provides:“’Public employee’ means:  (a) any temporary or permanent employee of the state;  (b) any temporary or permanent employee of a local government;  (c) a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority; and  (d) a person under contract to the state.”  MONT. CODE ANN. § 2-2-102(7).Federal employees are not incorporated into this definition and are not “public employees” under Montana law.  Therefore, it is clear that the Unemployment Insurance Division could not legally transmit Unemployment Insurance reports to ICE without a warrant.  The federal government obtained no such warrant.  The complete and un-redacted reports were simply offered in response to written correspondence.It is especially troubling that the Unemployment Insurance Division released un-redacted copies of these Unemployment Insurance reports without limiting the scope of its disclosure to any specific individuals who were under investigation.  The Montana Supreme Court has held that all individuals retain a privacy interest in personal information such as their social security numbers.  Jefferson County v. Mont. Std., 318 Mont. 173, 180 (Mont. 2003) (even a public official involved in criminal activity, and therefore triggering the public’s right to know in ways not at issue in this case, “does retain a privacy interest in other types of personal information not relevant to her status as a public official, such as her social security number and driver’s license number”); see also Havre Daily News, LLC v. City of Havre, 333 Mont. 331, 341 (Mont. 2006) (acknowledging “that an individual has a protected privacy interest in her social security number and driver’s license number”).Under Montana law, “[f]ew things are more inherently private” than an individual’s social security number.  State v. Jones, No. DC 03-12, 2003 Mont. Dist. LEXIS 2304 (Mont. Dist. Ct. Nov. 20, 2003).  Accordingly, under the Montana Constitution, the federal government was required to get a warrant before obtaining any records from the State of Montana that disclosed social security numbers.  By voluntarily disclosing private information without any warrant or legal authority, the Unemployment Insurance Division violated the privacy rights of dozens of employees of Melaque Butte, LLC.Montana statutes also provide that “personal information” such as social security numbers cannot be disclosed by any state agency. MONT. CODE ANN. § 2-6-501(4)(a); 2-6-502.

I concluded my letter by noting that:

The Unemployment Insurance Division is required by law to implement procedures to prevent precisely this type of privacy violation.  Statute provides that:In order to prevent the misuse of personal and other sensitive information collected by the department in the administration of the unemployment insurance laws, the department shall adopt rules providing for confidentiality of unemployment insurance information, including the circumstances and conditions under which information may be disclosed to appropriate persons and government agencies.  MONT. CODE ANN. § 39-51-603(4).The same requirement exists in MONT. CODE ANN. § 2-6-502.  A review of the Administrative Rules of Montana reveals no such rulemaking.

On July 22, 2010, I received a response from Pam Bucy.  She argued that “the Unemployment Insurance (UI) program is a cooperative federal-state effort” and claimed that there is an exception written into federal law that would allow Unemployment Wage Reports to be sent to any agency of the federal government without a warrant.  She stated:

20 C.F.R. § 603.4 is the federal rule that requires protection of confidential UI information.  20 C.F.R. § 603.5 enumerates limited exceptions to the confidentiality requirement. Among them is an exception for public officials in performance of their official duties. “Public official” is defined in 20 C.F.R. § 603.2(d) as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law . . .”  Under the preceding authorities, the Department can transmit information to a federal executive agency for performance of their official duties without a warrant.

Of course, there was an obvious and substantial problem with Pam Bucy’s interpretation of the law.  On September 27, 2010, I responded to Pam Bucy’s incorrect assertions:

While I understand and appreciate the fact that you were not personally involved in the decisions made by the Department of Labor and Industry (“DOLI”) in this case, I believe your justification for their actions are not legally supportable.  Contrary to your assertions, federal laws only trump the privacy protections outlined under Montana law if authorities have a court order or subpoena.  Otherwise, federal laws do not in any way curtail the strict confidentiality provisions of MONT. CODE ANN. § 39-51-603(3).In your letter, you state that the “public official” exception contained in 20 C.F.R. § 603.5(e) allows DOLI to share confidential unemployment insurance information with federal agencies without a warrant.  However, the exceptions upon which you rely for this argument are not supported by the plain language of the regulations themselves.  The law states in pertinent part as follows:”Disclosure of confidential UC information is permissible under the exceptions in paragraphs (a) through (g) of this section only if authorized by State law and if such disclosure does not interfere with the efficient administration of the State UC law. Disclosure of confidential UC information is permissible under the exceptions in paragraphs (h) and (i) of this section without such restrictions.”  20 C.F.R. § 603.5.The “public official” exception you rely upon is in paragraph (f) of this regulation, and is therefore applicable only if the disclosure is authorized by Montana law. You have not cited to any statute or constitutional provision that allows state agencies in Montana to turn confidential unemployment insurance information over to federal agencies without a warrant.Under the plain language of MONT. CODE ANN. § 39-51-603(3), the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a Montana “public official” must inspect the information in the performance of “public duties.”  Nowhere in Montana law does it state that information can be provided to federal “public officials” without a warrant.  In fact, the disclosure of such information is in direct violation of the Montana Constitution itself.The only exceptions in 20 C.F.R. § 603 that actually trump state law are in paragraphs (h) and (i). The exception in paragraph (h) allows the disclosure of confidential information with a court order or by subpoena.  A court order was neither sought nor obtained in this case.  The exception in paragraph (i) pertains to disclosure for program oversight and audit purposes. Neither of these exceptions applies when a federal agency, such as Immigration and Customs Enforcement (“ICE”), makes a general request for information without a court order or warrant.  Accordingly, I am forced to conclude that you have not provided any authority demonstrating that such a disclosure is legal under state or federal law.

On October 15, 2010, I received another response from Pam Bucy.  In this letter, she noted that she had created new rules to address precisely this situation:

Thank you for your further comments and questions regarding the Department’s policies and procedures on disclosure of personal identifying information. Though I don’t agree with all of your legal conclusions, your argument is certainly noted. First, I wish to assure you and your client that the Department of Labor and Industry is no longer releasing any information to ICE or any other federal or state agencies with which we don’t have information sharing agreements. Though ICE agents have sought information recently, that request has been denied. ICE has been informed that no further information will be provided until the applicable rules have been finalized and that any future release of information will be done pursuant to those rules.

Pam Bucy attached a copy of the new rules, and they were ultimately enacted into law on April 15, 2011.  Initially, I viewed the new rules as protecting release of confidential information without a warrant or valid subpoena.  However, the rules that were enacted contain a very important difference from the version that was provided to me.  As I reviewed the law on the books, I discovered that it contained exceptions so broad that they would effectively destroy any privacy protections that were created.The new rules provide for three relevant exceptions to confidentiality:

The department shall bar the disclosure of personally identifying information, except as disclosure is permitted by the informed consent of the identified individual(s) or is required under federal or state law to a public official for use in the performance of official duties or pursuant to a valid subpoena or interagency cooperative agreement.

The first problem with the new rule is that it expands the definition of a “public official” to allow for the release of confidential information to federal officers.  Previously, the law stated that only state employees were public officials.  However, the new regulations changed the definition to include:  “an official, agency, or public entity within the executive branch of federal, state, or local government with responsibility for administering or enforcing the law.”There is also a critical difference between the version of the law that was enacted and the version that was sent to me.  In statutory interpretation, whole meanings of the law can depend upon single words.  In this case, the change amounts to the deletion of the word “or,” but this minor change could have significant consequences.  The version that was provided to me stated that:

The department shall bar the disclosure of personally identifying information, except as disclosure is . . . required under federal or state law to a public official for use in the performance of official duties pursuant to a valid subpoena or interagency cooperative agreement.

In legalese, this version would have only allowed public officials to obtain information only pursuant to a valid subpoena.  But in the version that was enacted, there is an “or” placed in front of the clause stating “pursuant to a valid subpoena.”  In statutory interpretation, this would allow release of confidential information to a public officer even without a valid subpoena.  This is a critical difference, and one that violates Montana’s Constitution and statutes.  I have confirmed that this is not just a typo on the Administrative Rules of Montana website — it also appears in the print version.  If this is simply an error, then I hope it will be quickly corrected in print and online.[Update:  I have confirmed that the change is not an error; although the draft rule provided to me required a “public official” to obtain a subpoena, the change was made sometime between October 2010 and February 2012.  The notice of rule making included the omission.  I have done a compare and merge of the two versions, and this was the only substantive change in the two versions.]The second major problem with the new law is that it would allow the release of confidential information through an “interagency cooperative agreement.”  The new rules do not provide any clarification on the requirements to enter into such an agreement, stating simply:

“[I]nteragency cooperative agreement” means a written data-sharing agreement between the department and a public official.

On October 15, 2010, I wrote seeking clarification about how the Department of Labor and Industry would go about ensuring confidentiality of information released pursuant to an “interagency cooperative agreement.”  I never received any response.The Montana Constitution and statutes protect the release of confidential Unemployment Insurance information, so it is not clear how or why a simple written agreement can trump these privacy protections.On January 16, 2012, Pam Bucy informed me in a conversation that Immigration and Customs Enforcement (“ICE”) officers have not entered into an “interagency cooperative agreement” to obtain confidential Unemployment Insurance information.  However, she also stated that she was somewhat surprised that they never took this step.  To me, this revealed that she never truly intended to prevent the conduct I went to her to address.I believe that the manner in which Pam Bucy handled this situation calls into question her interpretation of the privacy protections of the Montana Constitution, and her willingness to share confidential information with the federal government.  These are issues that are important to those who oppose state-level enforcement of immigration laws, but are also important to Montana in many other respects.  For instance, this may be of interest to those who are advocating for Montana’s medical marijuana laws.In summary, I believe that Pam Bucy took conduct that was a very clear violation of the law, wrote new rules to seemingly prohibit the illegal conduct, but also created significant loopholes that would purport to legalize this very same conduct.In the end, I view this as actually making our confidentiality protections worse — not better.  In the interest of bureaucratic administration, I believe Pam Bucy has set aside important privacy considerations under Montana law.  As Attorney General, Pam Bucy would often be called upon to deal with conflicts between state and federal laws, and I believe that Montanans expect our Attorney General to enforce our laws and privacy protections despite warrantless requests from the federal government.  To the extent that Pam Bucy’s conduct reflects the manner in which she will handle such issues as Attorney General of the State of Montana, I have serious concerns.I will continue to monitor what “interagency cooperative agreements” the Unemployment Insurance division enters into to release confidential information to the federal government, and determine if legal action needs to be taken to challenge the administrative rules that Pam Bucy helped create.If you are an employee or business owner who has concerns about your private information being secretly released to the federal government without a warrant, I encourage you to complain to the Governor’s office.

Towards the end of last year, things became very busy for the firm, and for me in particular.  Many things happened that I would have liked to share, but I couldn’t find the time for it.  I will attempt to go back and post some notable events from the past year, as well as update this blog more regularly.
Last October, I became involved in an effort to draw attention to serious abuses committed by Bruce Norum, who was the most senior official in Montana working for Immigration and Customs Enforcement (“ICE”).  At that time, Bruce Norum was the Supervisory Detention and Deportation Officer for the state. In that capacity, he made final decisions regarding who should be detained, whether or not an immigrant should be released pending court hearings, what bond amount should be set, and other important determinations regarding immigrants under ICE scrutiny.On September 28, 2011, during working hours and from his ICE e-mail account, Mr. Norum forwarded an e-mail to another ICE agent and myself, recommending it as a “good read.”  The e-mail plainly advocated racial profiling of Muslims, and asked for a form of loyalty test to be administered before a Muslim should be afforded basic due process.Some statements from the e-mail included:

I’ve been trying to say this since 911, but you worry me. I wish you didn’t. I wish when I walked down the streets of this country that I love, that your color and culture still blended with the beautiful human landscape we enjoy in this country. But you don’t blend in anymore.. . .

It is not MY responsibility to determine which of you embraces our great country, with ALL of its religions, with ALL of its different citizens, with all of its faults. It is time for every Arab/Muslim in this country to determine it for me.

I want to know, I DEMAND to know and I have a right to know, whether or not you love America …. Do you pledge allegiance to its flag? Do you proudly display it in front of your house, or on your car?  Do you pray in your many daily prayers that Allah will bless this nation; that He will protect it and let it prosper? Or do you pray that Allah with destroy it in one of your Jihads?  Are you thankful for the freedom that this nation affords? A freedom that was paid for by the blood of hundreds of thousands of patriots who gave their lives for this country? Are you willing to preserve this freedom by also paying the ultimate sacrifice? Do you love America? ? If this is your commitment, then I need YOU to start letting ME know about it.

. . .

I want to see Arab-Muslims waving the AMERICAN flag in the streets. I want to hear you chanting ‘Allah Bless America’.. I want to see young Arab/Muslim men enlisting in the military. I want to see a commitment of money, time and emotion to the victims of this butchering and to this nation as a whole.The FBI has a list of over 400 people they want to talk to regarding the WTC attack. Many of these people live and socialize right now in Muslim communities. You know them.

You know where they are. Hand them over to us, NOW!. . .We will NEVER allow the attacks of September 11, or any others for that matter, to take away that which is so precious to us — our rights under the greatest constitution in the world. I want to know where every Arab Muslim in this country stands and I think it is my right and the right of every true citizen of this country to DEMAND it.

It was shocking and appalling to receive this message from Mr. Norum for many reasons.I am a Pakistani-American who was raised in a Muslim household.  Mr. Norum was well aware of my race and ethnicity, as we had met in person many times in an official capacity.  As I practice solely immigration law, I routinely represent immigrants (including Muslims) facing the threat of deportation in Mr. Norum’s jurisdiction.  By sending this message to me, it appeared that Mr. Norum may have been trying to question my loyalty to the United States, and use his position of authority to intimidate me.Furthermore, the fact that Mr. Norum would forward this e-mail from his government account, during work hours, seriously called into question all decisions he has made in his official capacity.  The views he advocated run directly contrary to the Constitution he was sworn to uphold.  Indeed, the e-mail even implies that Muslims cannot be “true citizens” of the United States.I immediately filed complaints with the civil rights and professional oversight divisions of the Department of Homeland Security (“DHS”).  I also contacted reporter John S. Adams regarding this matter, and a story was printed in the Great Falls Tribune on October 9, 2011.   Around the same time, I was contacted by Mr. Norum’s direct supervisor, who is based out of Salt Lake City, Utah.  He informed me that he was taking the incident extremely seriously, and was taking immediate action.  Mr. Norum was quickly suspended from duties, pending an investigation.  I was grateful for the prompt attention that was given to this matter. You can find a follow-up story from the Great Falls Tribune, containing more details.

Since then, I spoke with investigators from ICE “internal affairs” and I understand that their investigation finally concluded at the end of November 2011.  At this time, I am not aware of the results of the investigation.After Mr. Norum was relieved of duties, he was replaced.  I have had very positive dealings with his replacement, as well as other Department of Homeland Security officials in Montana.  Thus far, I am pleased that I have not experienced any harassment or retaliation as a result of this matter.Based on his clearly  bigoted views, I do not believe that Mr. Norum has any credibility to serve within the Department of Homeland Security, and certainly not in a supervisory role.  It is my sincere hope that Mr. Norum is permanently relieved of duties.  One thing is certain — if he returns to work, he will be met with fierce opposition.I will keep you posted as more information comes to light.

Jon Tester has finally come out in support of amnesty and a path to legalization.  The only problem is that he isn’t referring to comprehensive immigration reform — he is using this language to argue that military veterans should be able to keep machine-guns and other fully automatic “trophy” firearms acquired on the battlefield.  Tester wants to open a 90-day “amnesty period” for veterans to register these machine-guns so they have a “viable path to comply with federal law.”No, I’m not kidding.  A press release that was issued today states:

“It is important to protect veterans and members of our armed forces from unnecessary prosecution and give them a viable path to comply with federal law,” said Chris W. Cox, executive director of NRA’s Institute for Legislative Action. “Those who fought to preserve our freedom should not be penalized for their desire to lawfully own firearms from the battlefield.”

The press release also says:

“It is critical that we give our veterans another 90-day amnesty period to comply with the law without fear of penalty,” Tester and McCain wrote.  “If an amnesty is not provided, we will be further convinced that legislation is necessary in order for our veterans to register their lawfully obtained firearms.”

These statements are rich with irony because when talking about the DREAM Act or the need for immigration reform, Tester has stated repeatedly stated that he opposes any amnesty or path to comply with federal law.To keep things straight:  Tester supports “amnesty” so veterans can keep fully automatic weapons such as machine-guns, but no “viable path” to citizenship for undocumented kids who came here when they were children and want to serve our country in the military.Do those sound like your values?