Case Name: Howard A. Myers v. Laurie Smith, et al.

Case No.: 19-CV-353510

Currently before the Court is the demurrer by defendants Laurie Smith (“Smith”) and Rick Sung (“Sung”) (collectively, “Defendants”) to the complaint of plaintiff Howard A Myers (“Plaintiff”).

Factual and Procedural Background

This citizen suit under Code of Civil Procedure section 526a is for declaratory and injunctive relief and seeks to restrain the illegal expenditure of public money. (Complaint, ¶¶ 1, 2, & 28-45.) Plaintiff, a Santa Clara County taxpayer, seeks to enjoin Smith, in her official capacity as Sheriff of Santa Clara County, and Sung, in his official capacity as Undersheriff and Acting Chief of Correction of Santa Clara County, from expending taxpayer funds and taxpayer-financed resources on County of Santa Clara Board of Supervisors Policy 3.54(B) (“Policy 3.54(B)”). (Id. at ¶¶ 1, 2, 4-7, 20, & 28-45.)

Policy 3.54(B) states,

It is the policy of the County that the Sheriff may exercise discretion to facilitate the transfer of an adult inmate to [Immigration and Customs Enforcement (“ICE”)] custody if an ICE agent presents a valid arrest warrant signed by a federal or state judicial officer, or other signed writ or order from a federal or state judicial officer authorizing ICE’s arrest of the inmate. An administrative warrant signed by an agent or official of ICE or of the Department of Homeland Security (such as a Form 1-200) is not a judicial warrant and will not be honored. The Sheriff and Chief of Correction shall jointly develop transfer procedures to implement this paragraph.

(Complaint, ¶ 20.)

Plaintiff alleges the Immigration and Nationality Act (“INA”) (8 U.S.C. §§ 1101–1537) does not contemplate or provide for the issuance of judicial warrants in civil immigration enforcement proceedings and there is no process for ICE to obtain a judicial warrant in such proceedings. (Complaint, ¶ 21.)

Defendants are allegedly complying with Policy 3.54(B) as written and developing transfer procedures that prohibit the Sheriff’s Office and the Department of Correction from transferring an inmate to ICE’s custody when presented with an administrative warrant representing that ICE has determined there is probable cause to believe the inmate is a removable alien. (Complaint, ¶¶ 22 & 23.) In addition, Defendants allegedly instructed the Sheriff’s Office and the Department of Correction not to facilitate the transfer of any inmate to ICE without a judicial warrant authorizing the inmate’s arrest for removal proceedings. (Id. at ¶ 24.) Consequently, the Sheriff’s Office and the Department of Correction refuse to transfer any inmate to ICE if ICE does not have a judicial warrant authorizing the inmate’s arrest for removal proceedings. (Id. at ¶ 25.) Defendants have allegedly expended and will expend taxpayer funds and taxpayer-financed resources complying with Policy 3.54(B), developing transfer procedures pursuant to the policy, and implementing, enforcing, defending, and otherwise carrying out Policy 3.54(B) and the transfer procedures. (Id. at ¶ 27.)

In his first cause of action, Plaintiff alleges that Policy 3.54(B) is an ultra vires, illegal regulation of immigration, which alters the conditions under which immigrants in Santa Clara County are allowed to remain in the United States. (Complaint, ¶ 29.) Specifically, Plaintiff asserts that Policy 3.54(B) “grants aliens in Santa Clara County significant protections for removal neither authorized by Congress nor mandated by the Fourth Amendment or Due Process Clause.” (Ibid.)

In the second cause of action, Plaintiff alleges that Policy 3.54(B) is preempted by federal law as it seeks to regulate a field—the detention and removal of immigrants from the United States—that is expressly delegated to the federal government and in which there is no room for supplementary state or local regulation. (Complaint, ¶ 34.) Plaintiff further alleges Policy 3.54(B) is preempted by federal law as it is an obstacle to the federal immigration enforcement scheme. (Id. at ¶ 35.) Specifically, Plaintiff asserts that Policy 3.54(B) “mandates that Defendants refuse to transfer an alien to ICE unless ICE officials first obtain a judicial warrant, which is an impossibility in a civil removal proceeding.” (Ibid.)

In his third and final cause of action, Plaintiff alleges that Policy 3.54(B) is barred by the doctrine of intergovernmental immunity as it directly regulates the federal government by “dictating the conditions under which federal immigration officials may arrest and detain aliens they have probable cause to believe are deportable from the United States, the procedure by which they obtain arrest warrants for such aliens, and the contents of the warrants, among other direct regulations.” (Complaint, ¶¶ 41 & 42.)

On October 11, 2019, Defendants filed the instant demurrer to the complaint. Plaintiff an opposition to the demurrer on January 9, 2020. On January 15, 2020, Defendants filed a reply.

Discussion

Defendants demur to the complaint, and each and every cause of action alleged therein, on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

I. Request for Judicial Notice

In connection with their moving papers, Defendants ask the Court to take judicial notice of the following documents pursuant to Evidence Code section 452, subdivisions (b) and (d): (1) a June 4, 2019 memorandum, with attachments, from county executive Jeffrey V. Smith and county counsel James R. Williams to the Board of Supervisors of Santa Clara County recommending adoption of a board policy resolution amending Policy 3.54(B); and (2) federal judicial arrest warrants and related materials that the

County of Santa Clara recently received for inmates in its custody.

Plaintiff does not oppose Defendants’ request for judicial notice. In fact, Plaintiff cites to documents that are the subject of the request for judicial notice in his opposition.

Here, the memorandum, with its attachments, is a proper subject of judicial notice under Evidence Code section 452, subdivision (b) as legislative history reflecting on the purposes of Policy 3.54(B). (See Evans v. City of Berkeley (2006) 38 Cal.4th 1, 7, fn. 2 [taking judicial notice of a city manager’s memorandum to the mayor and city council recommending adoption of a resolution as legislative history reflecting on the purposes of the resolution].) Additionally, the federal judicial arrest warrants and related materials are proper subjects of judicial notice under Evidence Code section 452, subdivision (d) as court records. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].)

Accordingly, Defendants’ request for judicial notice is GRANTED.

II. Legal Standard on Demurrer

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

III. Pleading Standard for Taxpayer Claims Under Code of Civil Procedure Section 526a

“ ‘Under Code of Civil Procedure section 526a, a taxpayer may challenge wasteful or illegal government action that otherwise would go unchallenged because of standing requirements.’ [Citation.] ‘To state a claim, the taxpayer must allege specific facts and reasons for the belief the expenditure of public funds sought to be enjoined is illegal. General allegations, innuendo, and legal conclusions are not sufficient.’ [Citation.]” (Friends of Roeding Park v. City of Fresno (E.D. Cal. 2012) 848 F.Supp.2d 1152, 1164, citing Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 714 (Coshow); Humane Society of the United States v. State Bd. of Equalization (2007) 152 Cal.App.4th 349, 355 & 361 (Humane Society).)

“[A] section 526a action ‘will not lie where the challenged governmental conduct is legal.’ [Citation.]” (Humane Society, supra, 152 Cal.App.4th at p. 361, citing Coshow, supra, 132 Cal.App.4th at p. 714; Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 24 (Herzberg).) When the plaintiff fails to allege sufficient facts to show that the challenged government conduct is illegal, the trial court may properly sustain a demurrer to the plaintiff’s taxpayer claim without leave to amend. (Herzberg, supra, 133 Cal.App.4th at p. 24; Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 769; see Peters v. State of California (1987) 188 Cal.App.3d 1421, 1427 [a complaint for declaratory relief is subject to demurrer without leave to amend if the controversy can be resolved as a matter of law].)

IV. Merits of the Demurrer

A. First and Second Causes of Action

Plaintiff’s first and second causes of action allege that Policy 3.54(B) is preempted and, therefore, Defendants’ expenditure of public funds in connection with Policy 3.54(B) is illegal.

1. Preemption Principles

“There is ordinarily a ‘strong presumption’ against preemption. [Citations.] ‘Consideration of issues arising under the [s]upremacy [c]lause “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.” [Citation.] Accordingly, “ ‘[t]he purpose of Congress is the ultimate touchstone’ ” of pre-emption analysis. [Citation.]’ [Citation.] However, when the state regulates in an area where there has been a history of significant federal presence the ‘ “assumption” of nonpre-emption is not triggered….’ [Citation.]” [Citation.]

(Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1422 (Sturgeon).)

The “[p]ower to regulate immigration is unquestionably exclusively a federal power.” [Citations.] Both the power and its asserted exclusivity are implicit in the structure of the Constitution, inferred as a consequence of various explicit grants of authority, including the powers to regulate commerce, establish rules for naturalization, and conduct foreign affairs. [Citations.]

While the immigration power is exclusive, it does not follow that any and all state regulations touching on aliens are preempted. [Citation.] Only if the state statute is in fact a “regulation of immigration,” i.e., “a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain” [citation], is preemption structural and automatic. Otherwise, the usual rules of statutory preemption analysis apply; state law will be displaced only when affirmative congressional action compels the conclusion it must be. [Citation.]

(In re Jose C. (2009) 45 Cal.4th 534, 550 (Jose).)

Regarding the usual preemption rules,

Our Supreme Court has identified “four species of federal preemption: express, conflict, obstacle, and field. [Citation.] [¶] First, express preemption arises when Congress ‘define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.’ [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when ‘ “under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” ’ [Citations.] Finally, field preemption, i.e., ‘Congress’ intent to pre-empt all state law in a particular area,’ applies ‘where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation.’ [Citations.]” [Citation.]

(Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 758; Jose, supra, 45 Cal.4th at pp. 550-551.)

Here, the first cause of action alleges structural preemption. The second cause of action alleges field and obstacle preemption.

2. Structural Preemption

Turning to the issue of structural preemption, the Court considers whether Policy 3.54(B) is, in fact, a regulation of immigration.

The interpretation of a statute begins with its words. (People v. Morales (2018) 25 Cal.App.5th 502, 509.) “ ‘[Courts] give the words of the statute “a plain and commonsense meaning” unless the statute specifically defines the words to give them a special meaning.’ [Citation.]” (Ibid.) “ ‘ “If the statutory language is unambiguous, [courts] presume the Legislature meant what it said, and the plain meaning of the statute controls.” ’ [Citation.]” (Ibid.)

Policy 3.54(B) states,

It is the policy of the County that the Sheriff may exercise discretion to facilitate the transfer of an adult inmate to [Immigration and Customs Enforcement (“ICE”)] custody if an ICE agent presents a valid arrest warrant signed by a federal or state judicial officer, or other signed writ or order from a federal or state judicial officer authorizing ICE’s arrest of the inmate. An administrative warrant signed by an agent or official of ICE or of the Department of Homeland Security (such as a Form 1-200) is not a judicial warrant and will not be honored. The Sheriff and Chief of Correction shall jointly develop transfer procedures to implement this paragraph.

(Complaint, ¶ 20.)

The plain and unambiguous meaning of Policy 3.54(B) is that the Santa Clara County Sheriff may only facilitate the transfer of an adult inmate to ICE custody if it is presented with a valid judicial warrant. Thus, on its face, Policy 3.54(B) regulates when the Santa Clara County Sheriff may facilitate the transfer of an adult inmate to ICE custody.

Plaintiff’s allegation that Policy 3.54(B) “grants aliens in Santa Clara County significant protections for removal neither authorized by Congress nor mandated by the Fourth Amendment or Due Process Clause” is belied by the plain language of Policy 3.54(B). Policy 3.54(B) does not grant inmates any rights at all. (See United States v. California (E.D. Cal. 2018) 314 F.Supp.3d 1077, 1105 [holding that preemption was inappropriate as SB 54—which provides that agencies may only transfer an individual to immigration authorities if authorized by a judicial warrant or judicial probable cause determination—directs the activities of state law enforcement, which Congress has not purported to regulate, and does not add or subtract any rights or restrictions upon immigrants given that immigrants subject to removal remain subject to removal], reversed in part on other grounds United States v. California (9th Cir. 2019) 921 F.3d 865, 872-873.) Rather, it merely limits when the Santa Clara County Sheriff may exercise its discretion to facilitate transfer of those individuals to ICE custody.

As Policy 3.54(B) is a regulation of the Santa Clara County Sheriff’s conduct and does not regulate who may enter or remain in the United States, there is no structural preemption. (See Jose, supra, 45 Cal.4th at p. 550 [“As Jose C. does not, and could not, contend Welfare and Institutions Code section 602 as applied here regulates who may enter or remain in the United States, we proceed under the usual preemption rules.”]; see also Sturgeon, supra, 174 Cal.App.4th at p. 1422 [“As SO40 is a regulation of police conduct and not a regulation of immigration, there is no structural preemption and the assumption of non-preemption applies.”].) Consequently, the assumption of non-preemption applies and the Court proceeds under the usual preemption rules.

3. Field Preemption

With respect to the issue of field preemption, case law establishes that Congress did not intend, in either its initial enactment or subsequent amendments of the INA, to occupy the field of immigration law generally or in the context of enforcement of immigration-related criminal law. (Jose, supra, 45 Cal.4th at p. 551.)

Amendments of the INA have authorized: (1) states and localities to enter into written agreements with the United States Attorney General under which state and local officials will have authority to investigate, apprehend, and detain individuals for suspected violations of immigration law; (2) the Commissioner of the Immigration and Naturalization Service to “enter into cooperative agreements with State and local law enforcement agencies for the purpose of assisting in the enforcement of the immigration laws”; and (3) state and local officials in specified circumstances to make arrests of individuals illegally present in the United States. (Jose, supra, 45 Cal.4th at pp. 552–553.) These provisions demonstrate Congress, far from occupying the field, welcomed state and local assistance in enforcement of criminal immigration law. (Id. at p. 552.)

Moreover, the Fifth, Ninth, and Tenth Circuits have unanimously concluded Congress has not occupied the field regarding enforcement of federal criminal immigration law. (Jose, supra, 45 Cal.4th at p. 553.) “These courts recognize that Congress has established a regime of cooperative federalism, in which local, state, and federal governments may work together to ensure the achievement of federal criminal immigration policy. This is the antithesis of field preemption.” (Ibid.; see City of El Cenizo, Texas v. Texas (5th Cir. 2018) 890 F.3d 164, 177–178 (El Cenizo) [“Federal law regulates how local entities may cooperate in immigration enforcement; [a Texas state law] specifies whether they cooperate. … [¶] Federal law does not suggest the intent—let alone a ‘clear and manifest’ one—to prevent states from regulating whether their localities cooperate in immigration enforcement.”].)

There is a further weakness in Plaintiff’s field preemption claim. The Tenth Amendment prevents Congress from compelling California municipalities to cooperate in immigration enforcement. (See generally Printz v. United States (1997) 521 U.S. 898.) Thus, Congress could not pass legislation regulating whether the Santa Clara County Sheriff facilitates the transfer of inmates to ICE custody. (See United States v. California, supra, 921 F.3d at pp. 890–891 [“California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts …. In this context, the federal government was free to expect as much as it wanted, but it could not require California’s cooperation without running afoul of the Tenth Amendment.”].) As that is the case, it seems impossible that Congress has occupied the field that Policy 3.54(B) regulates. (See El Cenizo, supra, 890 F.3d at p. 178 [stating that it seems impossible that Congress has occupied the field that a Texas state law, governing cooperation with federal immigration authorities, regulates in light of the Tenth Amendment].)

For these reasons, there is no structural preemption

4. Obstacle

There remains the question whether, although the INA contemplates some room for state legislation, Policy 3.54(B) is nevertheless unconstitutional because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the INA.

The decision by the Ninth Circuit in the case of United States v. California, supra, 921 F.3d 865 is dispositive of this issue. There, the court addressed whether a provision of SB 54—prohibiting California law enforcement agencies from “[t]ransfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination”—unlawfully obstructed the enforcement of federal immigration laws. (United States v. California, supra, 921 F.3d at p. 886.) The court stated, “We have no doubt that SB 54 makes the jobs of federal immigration authorities more difficult. The question, though, is whether that constitutes a ‘[c]onflict in technique’ that is impermissible under the doctrine of obstacle preemption. [Citation.]” (Id. at pp. 866-867.)

The Ninth Circuit noted that neither an administrative warrant issued by federal authorities nor any other provision of law identified by the United States compelled any action by a state or local official. (United States v. California, supra, 921 F.3d at p. 887.) It agreed that California’s decision not to assist federal immigration enforcement in its endeavors was not an “obstacle” to that enforcement effort. (Id. at p. 888.) The court opined that “ ‘refusing to help is not the same as impeding.’ ” (Ibid.)

It further held that even if SB 54 obstructed federal immigration enforcement, the United States’ position that such obstruction was unlawful ran directly afoul of the Tenth Amendment and the anticommandeering rule. (United States v. California, supra, 921 F.3d at p. 888.) The court noted that “invalidating SB 54 would not prevent obstruction of the federal government’s activities, because the INA does not require any particular action on the part of California or its political subdivisions. Federal law provides states and localities the option, not the requirement, of assisting federal immigration authorities. SB 54 simply makes that choice for California law enforcement agencies.” (Id. at p. 889.) Although SB 54 arguably forced federal authorities to expend greater resources to enforce immigration laws, “that would be the case regardless of SB 54, since California would still retain the ability to ‘decline to administer the federal program.’ [Citation.]” (Ibid.) The Ninth Circuit opined,

Federal schemes are inevitably frustrated when states opt not to participate in federal programs or enforcement efforts. But the choice of a state to refrain from participation cannot be invalid under the doctrine of obstacle preemption where, as here, it retains the right of refusal. Extending … obstacle preemption to SB 54 would, in effect, ‘dictate[ ] what a state legislature may and may not do,’ [citation] because it would imply that a state’s otherwise lawful decision not to assist federal authorities is made unlawful when it is codified as state law.

(Id. at p. 890.)

Policy 3.54(B) is virtually identical to the provision of SB 54 at issue in United States v. California, supra, 921 F.3d 865. Therefore, for the same reasons articulated in United States v. California, supra, 921 F.3d 865, there is no obstacle preemption here.

B. Third Cause of Action

Plaintiff’s third cause of action alleges that Policy 3.54(B) is barred by the doctrine of intergovernmental immunity and, therefore, Defendants’ expenditure of public funds in connection with Policy 3.54(B) is illegal.

“ ‘[T]he intergovernmental tax immunity doctrine … is based on the proposition that the borrowing power is an essential aspect of the Federal Government’s authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States’ borrowing ability.’ ” (Nebraska Dept. of Revenue v. Loewenstein (1994) 513 U.S. 123, 135–136.)

The decision by the Ninth Circuit in the case of United States v. California, supra, 921 F.3d 865 is also dispositive of this issue. There, the court began by acknowledging that “the Supreme Court endorsed ‘a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign’s legislative authority and respectful of the primary role of Congress in resolving conflicts between the National and State Governments.’ [Citation.]” (United States v. California, supra, 921 F.3d at p. 891.) It then held that “[a] finding that SB 54 violates the doctrine of intergovernmental immunity would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts—a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule.” (Ibid.)

As previously stated, Policy 3.54(B) is virtually identical to the provision of SB 54 at issue in United States v. California, supra, 921 F.3d 865. Therefore, for the same reasons articulated in United States v. California, supra, 921 F.3d 865, the doctrine of intergovernmental immunity does not apply here.

C. Conclusion

Because the Court has rejected each of Plaintiff’s claims of illegal action by Defendants in connection with Policy 3.54(B), it follows that there has been no “illegal expenditure” by Defendants in connection with Policy 3.54(B). (See Herzberg, supra, 133 Cal.App.4th at p. 24.)

Accordingly, Defendants’ demurrer to the complaint, and each and every cause of action alleged therein, on the ground of failure to allege facts sufficient to constitute a cause of action is SUSTAINED, without leave to amend.

– oo0oo –

Calendar line 4

– oo0oo –