Repeals law prohibiting law enforcement from cooperating with federal immigration authorities.

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Teresa Berry
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1 RE: Proposed Initiative Petition Repeals Law Limiting Use of State/Local Law Enforcement Resources to Enforce Federal Immigration Laws DOJ File #BT-22-17; Elections Division # Requested Revisions to Draft Ballot Title Repeals law prohibiting law enforcement from cooperating with federal immigration authorities. Result of YES vote: Yes vote repeals law that prohibits using state/local law enforcement resources for detecting / apprehending persons accused only of violating federal immigration laws. Result of NO vote: No vote retains law that prohibits (with exceptions) using state/local law enforcement resources for detecting / apprehending persons accused only of violating federal immigration laws. Summary: Oregon law prohibits (with exceptions) state/local law enforcement from using money, equipment or personnel to cooperate with federal officials to detect/apprehend individuals whose only violation pertains to their immigration status. Congress intended state/local law enforcement to cooperate in enforcing federal immigration laws. Section 287 of the Immigration and Nationality Act states that a formal agreement with the federal government is not necessary for any officer or employee of a state or local agency to cooperate with the Secretary of Homeland Security in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. (8 U.S.C. 1357(g)(10)) This measure proposes the repeal of ORS 181A.820. Rationale for Edits Caption The caption more accurately captures the subject matter of Initiative Petition as required by ORS (2)(a). ORS 181A.820 says no law enforcement agency shall use Using the word prohibit instead of limit reflects what the law actually says. Additionally, the word cooperating rather than enforcing is also more accurate since state and local law enforcement agencies do not enforce federal immigration laws. Statements The statements were both clarified and simplified. Both statements have parallel language as required by ORS (3). Like in the caption, prohibit replaces limit. In the Yes statement, the with exceptions was removed because it creates confusion. If a voter votes yes, then ORS 181A.820 would be repealed and the exceptions are not relevant.

2 Summary The summary was both clarified and simplified in order to provide a concise and impartial statement summarizing the measure and its major effect, as required by ORS (2)(d). Contact: Cynthia Kendoll Authorized Agent home cell

6 Suite SW Fifth Avenue Portland, OR Tim Cunningham tel fax VIA Elections Division Office of the Secretary of State 255 Capitol St NE, Ste 501 Salem, OR Re: Public Comment on Draft Ballot Title for Proposed IP Dear Secretary Richardson: On behalf of David Rogers (Executive Director of the American Civil Liberties Union of Oregon), Rev. Joseph Santos-Lyons (Executive Director of the Asian and Pacific American Network of Oregon), Kayse Jama (Executive Director of Unite Oregon), and Andrea Williams, Executive Director, Causa, registered Oregon voters, we are providing the following comments on the draft ballot title. The Secretary of State issued the following draft ballot title June 16, 2017, which the Secretary received from the Attorney General June 15, 2017: Repeals law limiting use of state/local law enforcement resources to enforce federal immigration laws Result of Yes Vote: Yes vote retains law limiting (with exceptions) use of state/local law enforcement resources for detecting / apprehending persons accused only of violating federal immigration laws. Result of No Vote: No vote retains law limiting (with exceptions) use of state/local law enforcement resources for detecting / apprehending persons accused only of violating federal immigration laws. Summary: Measure repeals ORS 181A.820, which limits (with exceptions) the use of state and local law enforcement money, equipment and personnel for detecting or apprehending persons whose only violation of law pertains to their immigration status. Current exceptions allowing using law enforcement resources to:

7 Elections Division Page 2 Detect or apprehend persons accused of violating federal immigration laws who are also accused of other violations of law; Arrest persons charged by the United States with a criminal violation of federal immigration laws who are subject to arrest for the crime pursuant to a warrant of arrest issued by a federal magistrate ; and Communicate with federal immigration authorities to verify immigration status of arrested persons or request criminal investigation information with reference to persons named in records of federal immigration officials. COMMENTS ON DRAFT TITLE We appreciate the challenge the Attorney General faces when addressing IP the measure proposes to repeal a complicated, arguably ambiguous law with several exceptions and a complex history. As explained below in more detail, the draft title meets the requirement of ORS with two narrow exceptions. First, the Yes and No statements are misleading and underinclusive. Second, the Summary fails to adequately inform voters regarding the breadth of IP s impact, in that it fails to adequately account for the legal context of the existing statute. The legal context of IP provides a framework for discussing the draft title and highlights the shortcomings addressed by commenters. See Rasmussen v. Kroger, 350 Or 271, 274 (2011) (summarizing the legal context in which a measure would operate, including the laws the measure would repeal, prior to evaluating compliance with ORS ). The legislature enacted ORS 181A.820 (formerly ORS ) in 1987 to address increased litigation and insurance costs to cities and counties stemming from false arrests and racial profiling. Cruz v. Multnomah County, 279 Or App 1, (2016) ( [T]he legislature s intention was to reduce the potential liability of law enforcement agencies under existing law by expressly prohibiting problematic activities * * *. ). The Court of Appeals reached this conclusion by listing the concerns legislators sought to address: [A]mong the concerns that led the legislature to enact the statute were problems with increased litigation and insurance costs against cities and counties for false arrests by local police and questions of infringements [of] civil rights just because a person looks like an alien when local police try to enforce federal immigration law. Exhibit E, Senate Judiciary Committee, HB

8 Elections Division Page , May 20, 1987 (accompanying statement of Rep Rocky Barilla). One representative expressly stated that, [i]n these times of higher insurance costs, we do not need to broaden the potential liability issue. Exhibit B, House Judiciary Committee, HB 2314, Feb. 6, 1987 (accompanying statement of Rep Rocky Barilla). In addition, a staff measure analysis indicated that [l]ocal and state law enforcement agencies have no authority under federal law to enforce immigration laws, and have been successfully challenged when they have tried, and noted that law enforcement personnel in certain communities nevertheless sometimes stop and interrogate people using immigration law as the basis for the stop. Staff Measure Analysis, Senate Judiciary Committee, HB 2314, June 3, 1987 (underscore omitted). The same analysis described the function and purpose of the bill as to codify existing practice. Id. (capitalization omitted). Id. at In response, ORS 181A.820 (enacted as ORS ) addressed these problematic activities by limiting the expenditure of state and local resources for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws. The exceptions to the statute allow for state and local law enforcement to verify the legal status of those arrested for criminal offenses, request criminal investigation information, and actually arrest individuals charged with a criminal violation of immigration laws, and for whom a warrant has been issued. This context informs the draft ballot title, which seeks to completely repeal ORS 181A.820. The draft title complies with ORS except in the following ways: RESULT OF YES VOTE AND RESULT OF NO VOTE ORS (2)(b) and (c) require simple understandable statements of not more than 25 words that describe the result if voters approve the proposed measure and if they reject it. Wyant v. Myers, 336 Or 128, 138 (2003). The purpose of this section of the ballot title is to notify petition signers and voters of the result or results of enactment that would have the greatest importance to the people of Oregon. Novick v. Myers, 337 Or 568, 574 (2004). ORS (2)(c) requires the no statement to us[e] the same terms as the yes statement to the extent practical. ORS (3) reinforces the requirement by requiring that the no and yes

9 Elections Division Page 4 statements be written so that, to the extent practicable, the language of the two statements is parallel. 1 The draft Yes statement reads as follows: Result of Yes Vote: Yes vote retains law limiting (with exceptions) use of state/local law enforcement resources for detecting / apprehending persons accused only of violating federal immigration laws. The draft No statement reads as follows: Result of No Vote: No vote retains law limiting (with exceptions) use of state/local law enforcement resources for detecting / apprehending persons accused only of violating federal immigration laws. Both the draft Yes and draft No statements suffer from the same flaw. The statements use the term accused, which is misleading and under-inclusive. ORS 181A.120 prevents law enforcement from using agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws. The statute s scope is not limited to preventing law enforcement from spending money pursuing those accused of violating federal immigration laws it sweeps much more broadly. ORS 181A.120 prevents law enforcement from using resources to detect or apprehend any person for violating federal immigration laws. The statute s use of the word detect prevents law enforcement from even determining the legal status of individuals with local funds a predicate to those persons being accused of violating immigration laws. Relatedly, the word accused suggests to voters that the statute currently prevents local law enforcement from expending resources pursuing those who are actually charged with violating immigration laws. See Webster s Third New Int l Dictionary (1981) ( Accuse: * * * 1 a: to charge unequivocally with a specified or implied wrong or fault often in condemnatory or 1 Commenters believe the parallelism in the draft Yes and No statement is consistent with the requirements of ORS The Oregon Supreme Court s recent concerns regarding no rejects yes statements does not apply to a measure like IP , which is a complete repeal of an existing law, especially where, as here, both the Yes and No statements explain what the state of the law would be. See Carson v. Kroger, 351 Or 508, 518 (2012) ( The no vote result statement needs to include a description of the law that a no vote would leave in place. (citation omitted)).

10 Elections Division Page 5 indignant manner * * * b: to charge with an offense judicially or by a public process. ) To the contrary, ORS 181A.120 expressly allows law enforcement to expend resources pursuing those actually charged with violations of federal immigration law, provided a federal magistrate has issued a warrant. ORS 181A.120(3)(a)-(b). What the statute prevents is expending resources pursuing persons who have not been accused, and are only suspected of violating federal immigration law. See Cruz v. Multnomah County, 279 Or App 1, (2016) (noting that the legislature s purposes including preventing infringements [of] rights just because a person looks like an alien, and certain law enforcement practices where officers would stop and interrogate people using immigration law as the basis for the stop (alteration in Cruz)). Commenters believe that changing the word accused to the word suspected in both the Yes and No statements will accurately capture the result of a Yes or No vote on IP SUMMARY The Attorney General issued the following draft summary: Summary: Measure repeals ORS 181A.820, which limits (with exceptions) the use of state and local law enforcement money, equipment and personnel for detecting or apprehending persons whose only violation of law pertains to their immigration status. Current exceptions allowing using law enforcement resources to: Detect or apprehend persons accused of violating federal immigration laws who are also accused of other violations of law; Arrest persons charged by the United States with a criminal violation of federal immigration laws who are subject to arrest for the crime pursuant to a warrant of arrest issued by a federal magistrate ; and Communicate with federal immigration authorities to verify immigration status of arrested persons or request criminal investigation information with reference to persons named in records of federal immigration officials. The draft summary does a good job of describing some of the major effects of the proposed measure. However, by omitting the legal context underlying ORS 181A.820, the draft summary does not accurately inform voters of all of the measure s major effects as required by

11 Elections Division Page 6 ORS (2)(d). See Cross v. Rosenblum, 359 Or 136, 145 (2016) ( The goal of a summary is to provide voters with enough information to understand what will happen if the measure is approved and the breadth of its impact. (citation omitted)). The summary does not inform voters that one major effect of this repeal will be to expose law enforcement agencies to the precise liabilities the legislature attempted to avoid in Cruz, 279 Or App at An alternative summary that might address this concern would read: Summary: Measure repeals ORS 181A.820, enacted to reduce law enforcement liability for stops and false arrests based on an individual s appearance by limiting (with exceptions) use of state and local law enforcement money, equipment and personnel for detecting or apprehending persons whose only violation of law pertains to immigration status. Exceptions allow: Detecting or apprehending persons accused of violating immigration laws also accused of other violations of law; Arresting persons charged by the United States with a criminal violation of federal immigration laws subject to arrest for the crime pursuant to a warrant of arrest issued by a federal magistrate ; and Communicating with federal authorities to verify immigration status of arrestees or request criminal investigation information with reference to persons named in records of immigration officials. Thank you for your consideration. Very truly yours, Davis Wright Tremaine LLP Tim Cunningham On behalf of ACLU Foundation of Oregon TC/jan

I N I T I A T I V E P E T I T I O N

I N I T I A T I V E P E T I T I O N OFFICE OF THE SECRETARY OF STATE DENNIS RICHARDSON SECRETARY OF STATE LESLIE CUMMINGS, PhD DEPUTY SECRETARY OF STATE ELECTIONS DIVISION STEPHEN N. TROUT DIRECTOR 255 CAPITOL STREET NE, SUITE 501 SALEM,