Federal judge sets February 2013 hearing to help decide whether Utah's HB497 can go into effect

Published: Monday, Oct. 15 2012 8:32 p.m. MDT

Francisco Ayala protests HB497, Utah's immigration enforcement law, outside of the Frank E. Moss Courthouse in Salt Lake City on Friday, Feb. 17, 2012.

Kristin Murphy, Deseret News

SALT LAKE CITY — A federal judge has set a 2013 hearing on motions to prevent Utah from enforcing HB497, a state-level immigration enforcement law passed by the 2011 Legislature.

Two of the motions were filed by attorneys for the plaintiffs challenging the constitutionality of the Utah law. A third motion was filed by the U.S. Department of Justice, which intervened in the original lawsuit filed in November 2011.

U.S. District Court Judge Clark Waddoups set the motion hearing for Feb. 15.

Plaintiffs' attorneys have argued in court documents that they "are likely to succeed on the merits of their claims that HB497 violates the Supremacy Clause, the Fourth Amendment and the fundamental constitutional right to travel."

The plaintiffs' attorneys filed another motion that specifically addresses Section 5 of the Utah law, which deals with transporting "illegal aliens" to federal facilities.

Meanwhile, the Department of Justice argues in its motion that "a preliminary injunction in this case advances the public interest."

DOJ attorneys argue they are likely to succeed on the merits that three sections of the Utah law violate the Supremacy Clause and that "the United States will suffer irreparable harm if the court does not enjoin Sections 3, 10 and 11."

HB497 requires police to verify the immigration status of people arrested for felonies and class A misdemeanors, as well as those booked into jail on class B and class C misdemeanors. It also says officers may attempt to verify the status of people who are detained for class B and class C misdemeanors.

The latest filing by plaintiffs' attorneys concerns Section 5 of the Utah law, which addresses transporting "illegal aliens" to federal facilities.

They contend if Utah's immigration enforcement law officially becomes law, there is an "acute" likelihood the plaintiffs who oppose HB497 will be targets of law enforcement scrutiny.

"The likelihood that plaintiffs will be targeted for law enforcement scrutiny is especially acute because they belong to racial or national origin minority groups, speak foreign languages or foreign-accented English and/or lack HB497's qualifying identity documents — characteristics they cannot easily change," the court filing states.

The state, in its response to the motion on Section 5, described the plaintiffs' motion as a "facial attack" filed 15 months after their first motion for preliminary injunction.

"Ironically, however, when that provision is viewed plainly, and when HB497 is considered in its entirety, its purpose is to make sure that the state and local officials have proper authority to assist the federal government," according to the state response.

The reply goes on to say that "as these issues are similar to the issues that the parties previously briefed and argued, the state does not believe oral argument is necessary on this motion."

Waddoups conducted a six-hour hearing on the motion for preliminary injunction of the Utah law in February but held off ruling until the Supreme Court handed down the Arizona ruling.

The Supreme Court struck down key provisions of Arizona's crackdown on immigrants but ruled that a controversial section of the law regarding suspects' status could go forward.

The court ruled the state cannot criminalize the act of an undocumented person applying for a job nor establish a misdemeanor offense for the failure to carry identification that documents whether someone is in the United States legally. The court also ruled the state cannot arrest someone based solely on suspicion that the person is in the country illegally.

After the Supreme Court ruled in late June, Waddoups allowed attorneys for the plaintiffs, the DOJ and Utah time to file supplemental briefs. The law was temporarily enjoined pending the outcome of the lawsuit.

E-mail: marjorie@desnews.com

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