State Asks Judge to Dismiss Referendum Challenge

By Beacon Staff

HELENA – Montana officials are asking a judge to dismiss a lawsuit challenging the constitutionality of a voter-approved law that requires people seeking state services to prove they are eligible to receive them.

An immigration-rights group, the state’s largest labor union and an immigrant filed the lawsuit after nearly 80 percent of voters approved Legislative Referendum 121 in November. The new law requires proof of citizenship or legal standing from applicants for services ranging from unemployment and disability benefits to crime-victim assistance.

If an applicant can’t prove legal status, the state agency is required to give that person’s name to federal immigration authorities.

The lawsuit claims the law unconstitutionally requires state officials to determine who is in the country legally, the lawsuit claims. The Montana Immigrant Justice Alliance, the lead plaintiff, says that’s an infringement on the right to privacy, due process and equal protection.

There are no known instances of the law being enforced. Montana Solicitor General Lawrence VanDyke argues the plaintiffs in this case have no standing to make their claims because nobody has been injured or threatened by the law.

To make a constitutional challenge, there must be an injury or the immediate threat of an injury as a result of the law’s enforcement, VanDyke wrote in his request to dismiss the case.

“The problem with Plaintiffs’ challenge is not merely that they have not been injured; the problem is that their supposed ‘threatened injuries’ are not ‘certainly impending’ and are so speculative and hypothetical that they cannot satisfy the requirements for standing and ripeness,” he wrote.

Plaintiffs’ attorney Shahid Haque-Hausrath said several immigrants have provided statements that show they could be targeted under the new law.

“We have people who are threatened with LR 121 and it could impact their day-to-day lives,” he said.

State District Judge Jeffrey Sherlock was scheduled to hear arguments Thursday afternoon on the motion to dismiss.

Haque-Hausrath said he is asking the judge to force the state to disclose what rules, policies and procedures have been implemented to enforce the law, and how state employees will determine a person’s legal status.

The plaintiffs are also asking how much it will cost the state to enforce the law and the current cost of providing services to people in the country illegally, he said.

Sherlock blocked part of the new law in March but left most of it intact “to preserve the intent of the people.”

Sherlock said the state may not use the federal Systematic Alien Verification for Entitlements program to verify a person’s immigration status, a program that LR 121 specifies as a check.

Sherlock also blocked enforcement of the law’s definition of “illegal alien” as a person who unlawfully entered the U.S. The judge ruled there are circumstances in which an individual can enter the country illegally but remain lawfully.

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