In a complaint filed early last week in state court, a pro-illegal alien advocacy group, the state's largest union, and a Montana resident born in Canada sued Montana and several state officials as a result of the passage of Legislative Referendum 121 (LR-121). (See Complaint; see also Great Falls Tribune, Dec. 11, 2012). LR-121 denies state-taxpayer funded services such as state licenses, state employment, unemployment or disability benefits, and aid for university students to illegal aliens. The law also requires state agencies to notify the U.S. Department of Homeland Security of illegal aliens who have applied for state services. (LR-121).
In their lawsuit, the plaintiffs assail LR-121 on four grounds. First, they claim that Section 4 of LR-121 violates their fundamental right to privacy under Article II, Sections 3 and 10 of the Montana Constitution because it requires individuals to disclose their citizenship or legal immigration status to the state to obtain benefits.
Second, the plaintiffs claim LR-121 violates due process under Article II, Sections 3 and 17 of the Montana Constitution because they claim it grants discretion to state employees to determine who is an "illegal alien" and does not provide notice and opportunity for a hearing in the event that an applicant for services is classified as an "illegal alien" and denied services.
Third, the plaintiffs claim that LR-121 violates equal protection under Article II, Sections 4 of the Montana Constitution because it creates classes of similarly situated persons and treats them differently. "One class consists of persons who are United States citizens, lawfully present in Montana, and have readily-available proof of their citizenship status. The second class consists of persons who are United States citizens lawfully present in Montana, and do not have readily-available proof of their citizenship status, or for whom proof of their citizenship status may involve factual determinations and the application of federal law." (Complaint at pgs 17-19, 23). The plaintiffs also claim the law impermissibly treats lawfully admitted noncitizens who lawfully remain in the United States differently than unlawfully admitted noncitizens who remain lawfully in the United States by denying the latter state services.
Finally, the plaintiffs claim LR-121 is preempted by federal immigration law under the Supremacy Clause of the U.S. Constitution (U.S. Const., Art. VI, Cl. 2) because, they argue, the law both regulates immigration by creating classifications of aliens not defined in federal law such as "illegal alien" and conflicts with federal law by denying services to those who might have entered the United States unlawfully but have been granted permission toremainby federal law or presidential fiat.
The complaint asks the court to declare LR-121 unconstitutional and preliminarily and permanently enjoin its enforcement.
Representative David Howard, LR-121's drafter, says the measure is necessary to save tax dollars and discourage illegal aliens from making Montana their home. (Billings Gazette, Oct. 09, 2012). Montana citizens agreed, overwhelmingly approving the measure in the November election by nearly 80 percent. (See Montana Secretary of State's Official Election Results). Unless preliminarily enjoined by the court, LR-121 will take effect on January 1, 2013.
Read more....
www.fairus.org/legislative-updates/fair-legislative-update-december-17-2012
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