The Rule 11 Referendum

Rule 11 is invoked by lawyers when the other lawyer makes a frivilous argument in a lawsuit.  The Referendum that the General Assembly presented to voters as part of their November 8, 2006 ballot when it passed H.B. 1022 in the special session, demands that the attorney general, currently incumbent Republican John Suthers, or possibly Democratic Party Attorney General Candidate Fern O’Brian starting in 2007, bring such a frivilous lawsuit against the United States Attorney General, currently George W. Bush appointee Alberto Gonzales.  The ballot issue probably even has a decent chance of passing.The text of the referrendum reads:

Shall the Colorado State Attorney General initiate or join other states in a lawsuit against the United States Attorney General to demand enforcement of all existing federal immigration laws by the federal government?

A Fool’s Errand

The trouble is that there is no good faith legal argument under existing law for the lawsuit the attorney general is mandated to bring by this referendum.  The the attorney general is just going to have to making shit up, contrary to well settled law, and disclose to the court that he or she wants it to ignore precedent and change the law to rule in Colorado’s favor.  Courts generally respond to legal tactics like this by promptly dismissing the case, and all lawyers hate losing.

How do I know this?  The same way that Colorado Attorney General Suther’s spokesman Jason Dunn does:

Dunn said six other states have tried unsuccessfully to sue the federal government over illegal immigration matters. He said courts have dismissed those cases, saying it is a political, not a legal, matter.

The general rule of law is that the United States government, and its officers when acting in an official capacity, are immune from all lawsuits under a doctrine called sovereign immunity.  It also doesn’t help that any rights that anyone has under immigration laws flow not from the U.S. Constitution, but from statutes enacted by Congress, which has exclusive jurisdiction over the matter.  There are, of course, exceptions to this rule. 

The exception which is the closest fit in this case is what used to be called a writ of mandamus suit (in federal practice it is now referred to by the less romantic and less memorable section number in the All Writs Act (28 U.S.C. Section 1651) that authorizes such suits), or its modern day replacement in many cases, a suit under the federal Administrative Procedure Act (the suit would likely be brought under 5 U.S.C. Section 702). 

A writ of mandamus suit is a lawsuit against a public official seeking to compel that official to perform a non-discretionary official duty, like issuing a permit or license or certificate that all eligible applicants are entitled to receive, or holding a hearing required by law at which the public is allowed to comment about a proposed governmental action. 

Administrative Procedure Act relief is also limited because it does not, by its terms, under 5 U.S.C. 701(a), apply if:

agency action is committed to agency discretion by law.


The trouble is, that enforcement of federal immigration laws, like enforcement of federal criminal laws, is not a non-discretionary duty.  So, neither a writ of mandamus nor a suit under the Administrative Procedure Act is available. 

As the U.S. Supreme Court explained in a Castle Rock, Colorado case in 2005 where a woman’s children were killed after she plead with law enforcement officers to enforce a restraining order protecting them from their father, which they blew off, these kinds of obligations are discretionary.  There is no remedy available if law enforcement fails to do its job.  In the criminal justice context, this is sometimes lumped under the label of “prosecutorial discretion.” 

Incidentally, many non-common law countries, like Germany, whose legal systems are less strongly rooted in the privileges of the monarchy, lack this legal doctrine and instead require prosecutors legally to enforce all material violations of the law.

Politically Irresistable

Nevertheless, the bill was politically irresistable to many state representatives and senators. 

Maybe they erroneously believed that Colorado has a legal case.  Maybe they think it is prettier to waste money on frivilous lawsuits than whatever other pork they had been considering.  Maybe the felt guilty about depriving voters of an opportunity to vote on an idiotic and poorly drafted multiple subject immigration Initiative 55 clone, and felt compelled to replace it with another idiotic, but generally more harmless, anti-immigration ballot issue.  Maybe they want to make the Republican Attorney General look stupid by bringing a lame suit against the Bush Administration.  Maybe perfectly nice, reasonable people just go a little crazy when forced to listen to long boring speeches in the Capitol outside the traditional legislating season.  Maybe they forgot that they were voting on a ballot issue that could require the attorney general to actually bring a frivilous lawsuit, rather than a simply resolution declaring that Colorado was annoyed by existing federal management of the immigration issue. It is hard to know.

Every member of the State House except Judiciary Committee Chairman Terrance Carroll (D), who voted no (despite having voted for the bill in committee), and Representative Hoppe, who was excused, voted for H.B. 1022.  Representatives Hefley, Gardener and Riesburg opposed the bill in committee, but supported it on the floor of the State House.  A bipartisan group of 26 representatives joined as co-sponsors.

The State Senate showed more spine, but still approved H.B. 1022 by a 26-9 vote.  Voting no were State Senators Dyer, Entz, Grossman, Kester, May R., Mitchell, Spence, Taylor and Teck voted no.  Dyer and Mitchell also oppopsed the bill in committee, although State Senator Grossman (D) voted for the bill in committee where it prevailed by a 4-2 vote, only to withdraw his support on the floor of the State Senate.  Ten senators jointed as co-sponsors.


Of course, in addition to being idiotic, because it calls for the attorney general to bring a frivilous lawsuit, the ballot issue established by H.B. 1022 is also meaningless.  This is because the General Assembly also passed during the special session H.B. 1014.  When the dust settled, the final version of this bill provides in the key section that:

The Attorney General shall pursue all available remedies to recover any moneys owing from the federal government to the state for reimbursment by the federal government of costs incurred by the state in dealing with illegal immigration.

The Attorney General is then directed to report back to the General Assembly by the end of the calendar year 2006 and the calendar year 2007 on his or her progress, and is given an appropriation of $45,822 (0.5 FTE) to carry out this task.

This bill is slightly less insane that H.B. 1022.  “All available remedies” implies the possibility that there are none, and recognizes that bringing a frivilous lawsuit may not be the most reasonable way to secure relief. 

While a suit brought in accordance with H.B. 1014 would be for money damages for past acts, instead of for calling for prospective enforcement of a statute as H.B. 1022 does, it faces similar problems.  Waivers of sovereign immunity against the federal government in cases involving money damages in the absence of a contractual relationship are generally brought under the Federal Tort Claims Act, rather than the All Writs Act or the Adminstrative Procedures Act.  But, it includes an even more draconian exception for discretionary acts at 28 U.S.C. Section 2680(a):

[T]he waiver of immunity does not apply to any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”


Attorney General Suthers, while not my favored candidate in November for the post, is doing the reasonable thing to carry out H.B. 1014, by having a chat with the U.S. Attorney General, which will probably be followed in due course by a pep talk to Colorado’s Congressional delegation (Tom Tancredo will be moaning in ecstacy the whole time), and by tasking some hapless, but bright, junior attorney in his office with finding some neglected minor federal grant program that may bring in enough money to at least earn H.B. 1014’s appropriation back for the state.

H.B. 1014 passed unanimously in the State House, and was opposed in the State Senate only by Senators Brophy, Dyer, May R., Mitchell and Spence, and was later ratified after a conference committee agreement was reached.  Owen opposed the bill in the conference committee..

I’d love to be a fly on the wall listening to the conversation between John Suthers and Alberto Gonzales.

Cross Posted at Wash Park Prophet.