Supreme Court Notebook

State E-Verify ma ndate not preem pted by federal law

BOSTON (Dolan Record Newswire) -- A state law imposing sanctions on employers who hire undocumented workers and mandating the use of the federal E-Verify database is not preempted by federal immigration law, the U.S. Supreme Court has ruled.

In 2007 Arizona enacted a law subjecting companies that employ undocumented workers to penalties, including the suspension or revocation of their business licenses. The law also required employers to use the federal E-Verify system to check the immigration status of workers.

The U.S. Chamber of Commerce and a host of other groups challenged the law in federal court, arguing that it was preempted by the Immigration Reform and Control Act of 1986. That law preempts "any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."

A U.S. District Court held that the statute was a licensing law that fell within the "licensing or similar laws" savings clause of the federal statute, and that the E-Verify requirement was not impliedly preempted by federal law. The 9th Circuit affirmed.

The U.S. Supreme Court agreed to hear the case.

In a 5-3 ruling, the Court affirmed. In an opinion written by Chief Justice John G. Roberts, the Court held that the licensing provision fell within the federal statute's savings clause.

The Court rejected the Chamber's argument that the state law was not aimed at employment licensing, but rather AT regulating immigration, since it has nothing to do with the granting of licenses.

Such an argument is "contrary to common sense," Roberts wrote. "There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether."

The Court also rejected the Chamber's claim that the E-Verify requirement was impliedly preempted because federal law makes use of the system voluntary, not mandatory.

"Arizona's use of E-Verify does not conflict with the federal scheme," Roberts wrote. "The [mandatory E-Verify] requirement is entirely consistent with the federal law. And the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law. In both instances, the only result is that the employer forfeits the otherwise available rebuttable presumption that it complied with the law."

Justice Stephen Breyer filed a dissent joined by Justice Ruth Bader Ginsburg. Justice Sonia Sotomayor filed a separate dissent. Justice Elena Kagan took no part in the case's consideration.

U.S. Supreme Court. Chamber of Commerce v. Whiting, No. 09-115. May 26, 2011.

Narrow intent standard adopted for witness tampering

BOSTON (Dolan Record Newswire) -- A defendant cannot be convicted of witness tampering in connection with the killing of a local police officer unless the government can establish that there was a reasonable likelihood that the victim would have provided relevant information to federal authorities, the U.S. Supreme Court has ruled in a 7-2 decision.

The defendant killed a local policeman who happened upon the defendant and his associates while they were planning a bank robbery.

Federal authorities charged and convicted the defendant under the federal witness tampering statute, which makes it a crime "to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States' of 'information relating to the ... possible commission of a federal offense."

The defendant argued that the evidence was insufficient to show that he had killed the policeman intending to prevent him from communicating with a federal officer.

The Court agreed that the government must show more than that the defendant acted with a broad, indefinite intent.

"We hold that, in such circumstances, the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer," the Court said.

It explained that the government "need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. ... But the government must show that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical."

It remanded the matter for the lower courts to decide how the new standard applied in this case.

Justice Stephen Breyer wrote the majority opinion. Justice Antonin Scalia filed a concurring opinion. Justice Samuel Alito filed a dissenting opinion, which was joined by Justice Ruth Bader Ginsburg.

U.S. Supreme Court. Fowler v. U.S., No. 10-5443. May 26, 2011.

Pretrial motion tolls clock on speedy trial requirement

BOSTON (Dolan Record Newswire) -- The speedy trial clock stops running automatically upon the filing of a pretrial motion, even if the motion has no impact on when the trial begins, the U.S. Supreme Court has ruled.

The Speedy Trial Act requires that a criminal defendant who pleads not guilty gets a trial within 70 days of arraignment, but excludes periods of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion."

The defendant, Jason Tinklenberg, was indicted on federal gun and drug charges after police found a gun, Sudefed and other materials used to make methamphetamine in his camper.

Just before trial, which began 287 days later, he moved to dismiss based on a violation of the Act's 70-day requirement.

The trial court found that enough days fell within the Act's exclusions that only 69 days had passed. Tinklenberg was convicted and sentenced to 33 months.

On appeal, the 6th Circuit reversed his conviction, holding that the Act authorizes stopping the clock only when pretrial motions "actually cause a delay, or the expectation of delay, of trial."

The Supreme Court heard oral arguments in February.

The justices concluded that the Act contains no requirement that the filing of a pretrial motion actually caused, or was expected to cause, delay of a trial.

"The question is whether [the delay] provision stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. Unlike the 6th Circuit, we believe the answer to this question is yes," the Court said.

While it said that the statutory language alone did not resolve the question, it based its conclusion on several considerations taken together, including related subparagraphs of the Act that clarify the meaning, workability for trial courts, and the fact that in the 37 years since the Speedy Trial Act was passed, the 6th Circuit's decision stood alone.

U.S. Supreme Court. U.S. v. Tinklenberg, No. 09-1498. March 26, 2011.

Published: Tue, May 31, 2011

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