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LR-121: A Resource on Montana’s 2012 Anti-Immigrant Referendum

LR-121 is a referendum that will be appearing on ballots throughout Montana on November 6, 2012.  LR-121 aims to deny a wide variety of state services to Montana residents who cannot prove that they are U.S. Citizens or documented immigrants.  This post is designed to serve as a resource on the referendum, discussing how it came to appear on the ballot, what it seeks to do, and why it will be so costly and damaging to the state.

History of the Referendum

Unlike most referendums that are brought by the public and require signature gathering to be placed on the ballot, LR-121 was actually a legislative referral.  The Montana Legislature passed HB 638, a bill brought by Rep. David Howard (R) to place this issue on the ballot as a referendum.  Therefore, by operation of law, the referendum will now be brought before Montana voters in the general election.

Rep. David Howard, the proponent of this referendum, had unsuccessfully carried 3 bills in the 2009 session and 6 other bills in the 2011 session to attempt to bring the state into the business of enforcing federal immigration laws.  We have discussed many of these bills on this blog.  All of these other bills were defeated, but his legislative referendum managed to pass both the House and Senate.  The votes were almost completely along party lines, with Democrats voting against the referendum and Republicans voting in support.  Two notable exceptions were Sen. Joe Balyeat (R) and Rep. Liz Bangerter (R) — both of whom split with their party to oppose the referendum.

The Language of LR-121 to Appear on the Ballot

The Montana Secretary of State has certified the following language to appear on the ballot:

AN ACT DENYING CERTAIN STATE-FUNDED SERVICES TO ILLEGAL ALIENS; ESTABLISHING PROCEDURES FOR DETERMINING A PERSON’S CITIZENSHIP STATUS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.

LR-121 prohibits providing state services to people who are not U.S. citizens and who have unlawfully entered or unlawfully remained in the United States. Under LR-121, every individual seeking a state service, such as applying for any state licenses, state employment, unemployment or disability benefits, or aid for university students, must provide evidence of U.S. citizenship or lawful alien status, and/or have their status verified through federal databases. State agencies must notify the U.S. Department of Homeland Security of noncitizens who have unlawfully entered or remained in the U.S. and who have applied for state services.

The costs associated with verifying U.S. citizenship or lawful alien status will vary by agency and cannot be precisely determined. However, on-going costs may include: hiring and training state personnel to use various federal databases; software, hardware and search charges; and information assessment and management costs.

[] FOR denying certain state services to illegal aliens.

[] AGAINST denying certain state services to illegal aliens.

In layman’s terms, this bill would insert the federal government between almost every agency in this state and the services they provide to Montana residents.  As discussed below, this bill is part of a misguided effort to use state resources to enforce federal immigration laws, and will be costly and damaging to the state.

As you can see, this referendum includes the term “illegal alien” in some sections.  Please refer to this resource for why the term “illegal alien” is offensive and inaccurate.

What State Services Will Be Denied to Unauthorized Immigrants?

The bill would require employees of the State of Montana to serve as federal immigration agents, attempt to determine the immigration status of applicants for services, and deny these services to undocumented immigrants.  They will be required to use a costly “pay-per-use” federal database to perform these checks.  These are the services that are to be denied:

Employment with a state agency. This referendum will require all state agencies to check immigration status and deny employment to anyone who cannot prove U.S. citizenship or authorized status.  There are already federal laws requiring that all applicants for employment complete an Employment Verification Form before starting work.  Most of you are probably familiar with the process — you present certain forms of ID to prove eligibility to work, and then you sign a form.  The federal government has not imposed any additional requirements or mandated the use of their federal system to verify work authorization.  Nevertheless, this referendum seeks to voluntary commit the state to using a costly and time-consuming federal database to screen employees.

Ability to attend any public university in the state. There is no federal law that prohibits undocumented immigrants from attending college.  Most states allow undocumented students to attend college, although they may be required to pay tuition as non-residents of the state.  Under Montana’s current laws, “[t]he university system is open to all people, subject to such uniform regulations as the regents deem proper.”  This referendum would change this and require all students to prove their citizenship or immigration status, and be denied admission if they cannot do so.  Somewhat redundantly, the referendum would also cut off an undocumented student’s ability to get student financial assistance.  Worse, it would require the state to turn any undocumented students over to the federal immigration authorities!

Ability to get a state license or permit to practice any trade or profession. For the first time, this referendum would require state agencies that issue licenses or permits to screen applicants for immigration status.  The requirement would apply to all licenses and permits provided in Title 37, which includes over 75 different professions from barbers to massage therapists and real estate brokers.  One can only imagine the number of applicants that state employees will now be required to screen.  Since current procedures do not require any such screening, this will likely require some significant changes in the licensing and permitting process.

Ability to get unemployment insurance benefits. The referendum would specifically prohibit undocumented aliens from receiving unemployment insurance benefits as provided under law.

Assistance with vocational rehabilitation. Montana law provides for some assistance to help “a person with a disability to enable the person to the extent possible to become independent and productive or employable.”  The referendum would strip undocumented immigrants with such disabilities from getting any rehabilitation.

Services for victims of crime. Under Montana law, there is a Crime Victim Compensation fund to “help innocent crime victims with crime-related medical expenses.”  This includes “lost wages and medical and funeral expenses incurred as the result of personal injury crimes. These crimes include homicide, rape, domestic violence, stalking, assault, child sexual and physical abuse, and drunk driving.”  The referendum would prevent victims of crime who are undocumented immigrants from getting help.

Services for the physically disabled. The referendum oddly seeks to eliminate access to two types of services for physically disabled individuals.  The referendum states that it will deny “services for the physically disabled, as provided in Title 53, chapter 19, parts 3 and 4.”  These are the parts relating to “a program to make specialized telecommunications equipment and services available to persons with disabilities” and “newborn hearing screenings.”  It is troubling that the referendum would deny access to necessary equipment for people with disabilities, and it is quite disturbing that it seeks to deny a simple hearing test to newborns.  It goes without saying that most newborns in Montana are likely U.S. citizens by virtue of being born in this country.

Ability to get a grant. Finally, the referendum seeks to limit the ability to get any kind of grant as provided in Title 90 of the Code.

It should be noted that LR 121 appears to be drafted to deliberately create the impression that its scope is even broader than it actually is.  At certain points, the language of the legislative referendum appears sweeping, seemingly reaching to all state services provided to undocumented aliens.  Public perception of a law often shapes its implementation, and the broad language of the referendum will have lasting effects beyond the specific areas outlined above.

How Will the State Verify the Legal Status of Applicants for Services?

This referendum would require the State of Montana to check a costly federal database before granting services to Montana residents.  Montanans have spent years fighting this level of federal intrusion into our day-to-day activities, as evidenced by the vocal opposition to federal REAL ID laws.  However, this referendum would insert a federal government database into almost every agency of the State of Montana — and require us to pay for its use!

The federal database that would be used is the Systematic Alien Verification for Entitlements (“SAVE”) system.  The SAVE system is not free. The federal government charges between $.50 and $2.00 for each search in the system.  The minimum cost is $.50.  When you consider the numbers of applicants for state services, this could quickly add up to millions of dollars.  State agencies will also waste time and resources training employees on how to use this system, and checking it before allowing access to a wide variety of state services.

The SAVE system is not a fully computerized system that provides immediate results.  In actuality, this system often fails to ascertain immigration status at the “initial verification” stage, and a secondary or third inspection is required.

A report from U.S. Citizenship and Immigration Services (“USCIS”) states that 6% of its checks are not resolved immediately and require secondary or third inspection.  USCIS estimates that secondary inspection can take up to 3-5 working days to complete.  In actuality, applicants have complained of delays of over 15 days.

Agencies may be required to process paperwork in the third inspection stage, including a G-845S Document Verification Request.  At this stage, the agency has to make copies of all of the applicant’s immigration papers, fill out a form, and send it to USCIS.  Then, the agency must wait 10-20 working days or longer for a response.

The SAVE System is Similar to REAL ID

Requiring that our state agencies use federal systems to verify access to benefits has an impact on our state sovereignty.  The mandatory use of the SAVE system was a major part of the federal REAL ID law that Governor Schweitzer and the Montana legislature resoundingly rejected in 2007.

It is important for Montanans to realize that this referendum imposes even more sweeping and burdensome requirements than REAL ID.

REAL ID would have required the use of the SAVE system, just like this bill.  However, REAL ID was far more limited than this referendum.  Republicans and Democrats both took issue with imposition of a backdoor federal system that the state would be required to use, and passed a law declaring that the state “will not participate in the implementation” of REAL ID.  We must reject LR-121 for the same reasons.

We Don’t Need this Law in Montana

Montana is one of the states with the least numbers of immigrants in the whole country.  Montanans must consider if enforcing federal immigration laws are worth the delays in service and extra cost to the state.

During the 2009 and 2011 legislative sessions, the proponents of anti-immigrant legislation estimated that there are no more than 4,000 undocumented immigrants in Montana.  One can safely assume that far fewer are actually accessing state services.  It would cost the State of Montana far more to implement this law than we are “losing” by providing services to undocumented immigrants.

Fiscal Impact of LR-121

It should be noted that state agencies were asked to complete some fiscal statements, which were woefully inadequate and not well-reasoned.  The true impact of LR-121 will reach far beyond the limited analysis in these agency reports.  You can find a copy of those agency fiscal reports here.

Who is Currently Working to Oppose the Referendum?

For the past six years, an ad hoc coalition of organizations and individuals has worked to defeat over 25 anti-immigrant proposals at the past three legislative sessions.  This coalition has included the Border Crossing Law Firm, P.C.Montana Human Rights Network, the Gallatin Valley Human Rights Taskforce, the Montana Coalition Against Domestic and Sexual Violence, the Teamsters, SEIU Healthcare 775 NW, members of the faith community, individual activists, concerned members of the community, and immigration attorneys.   Without specific funding, the coalition has operated on in-kind contributions of staff time, printing, etc. from organizations as well as volunteer hours and resources from individuals.

Many members of this coalition have come back together in an effort to raise resources and run a campaign to educate Montana voters and defeat LR-121.  Please contact me if you can provide any help to defeat LR-121.

This article will be updated with more information as it develops.

A Concern About Pam Bucy’s Record on Immigration Issues

Pam Bucy is one of two Democratic candidates for Attorney General of the State of Montana.  Last week, we reviewed the voting record of her opponent in the primary election, Jesse Laslovich, regarding state-level enforcement of federal immigration laws.  Unlike Jesse Laslovich, who had served in the Montana Legislature for ten years, Pam Bucy has not previously served in an elected position.  Therefore, she has no voting record on immigration issues that we can analyze.

At the a debate last week moderated by Marnee Banks of KXLH, I submitted a question of the candidates:  “What do you believe is the proper role of the state law enforcement in dealing with federal immigration laws?”  (The question does not appear to have been included in the video that was posted online.)  Pam Bucy stated very clearly that the Montana Highway Patrol has no role whatsoever in enforcing federal immigration laws.  Presently, there are no laws permitting the Montana Highway Patrol or any other state or local law enforcement officers to enforce federal immigration laws, but it is still happening on a routine basis.  I have had occasion to review many instances in which law enforcement officers have asked individuals about their immigration status and held them without legal cause while they call Immigration and Customs Enforcement (“ICE”) or check federal databases to determine their immigration status.  Naturally, this practices often results in racial profiling.  I took Pam Bucy’s comments to be a strong rejection of that precedent.

Nevertheless, without a voting record to rely upon, it becomes more important to consider any other information that may reflect upon the relevant issues.  To that end, I will recount a professional interaction with Pam Bucy that may shed light on her interpretation of the Montana Constitution, the privacy protections provided under state law, and the role of the state in sharing information with the federal government.  As discussed below, I believe this interaction with Pam Bucy raises some concerns.

In the course of a federal lawsuit I was defending, I came across documents revealing that the State of Montana Unemployment Insurance Division had been illegally disclosing confidential personal information for years.  Almost every businesses in Montana must file Quarterly Wage Reports with the State, containing employees’ names, social security numbers, and salary information.  From at least 2005 to 2007 — and likely continuing long after these dates — officers with Immigration and Customs Enforcement (“ICE”) would contact the Unemployment Insurance Division and ask for copies of the Quarterly Wage Reports for businesses that were “under investigation.”  ICE is an agency within the Department of Homeland Security, and is charged with enforcing federal immigration laws.

The Unemployment Insurance Division routinely violated Montana’s Constitution and statutes by providing non-redacted copies of all of the requested Unemployment Insurance reports, without any warrant or legal basis for doing so.  In other words, they would disclose confidential information on every single employee, including their names, social security numbers, and wages, without demanding a warrant or even limiting the disclosure to specific individuals who were allegedly under investigation.

This allowed ICE to engage in a “fishing expedition” and secretly investigate every employee of a business, without any individual suspicion about each particular employee’s immigration status.  ICE agents could use the names and social security numbers they received from the Unemployment Insurance Division to attempt to ascertain the immigration status of every single employee.  ICE agents used a flawed database to crosscheck their social security numbers, and in some cases they incorrectly transcribed employees’ information.  Therefore, some authorized workers who had done nothing wrong were falsely believed to have invalid social security numbers, and were improperly detained while this was sorted out.

On June 28, 2010, I brought this information to the attention of Pam Bucy, then serving as Chief Legal Counsel for the Montana Department of Labor and Industry.  As I stated in my letter:

The warrantless disclosure of the names, social security numbers, and salaries contained in these Unemployment Insurance Reports is strictly prohibited under Montana’s Constitution and statutes.  The Montana Constitution includes a fundamental “Right to Privacy” provision, which provides that:  “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”  Mont. Const., Art. II, § 10.  In addition, the Montana legislature has made its intent clear that the names, social security numbers, and salary information contained in the state’s mandatory Unemployment Insurance reports shall be kept private and confidential.

The relevant statute provides:

“Information obtained from any individual under this chapter must, except to the individual claimant to the extent necessary for the proper presentation of a claim, be held confidential and may not be published or be open to public inspection, except to public employees in the performance of their public duties, in any manner revealing the individual’s or employing unit’s identity, but any claimant or the claimant’s legal representative at a hearing before the board or appeal tribunal must be supplied with information from the records to the extent necessary for the proper presentation of the claim.”   MONT. CODE ANN. § 39-51-603(3).

Therefore, by statute, the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a “public employee” must inspect the information in the performance of “public duties.”  Regardless of what the Unemployment Insurance Division believed when transmitting Unemployment Insurance reports to ICE, employees of the federal government are not “public employees” as contemplated by statute.

The term “public employee” refers to employees of the State of Montana, not employees of the federal government.  The relevant statute provides:

“’Public employee’ means:  (a) any temporary or permanent employee of the state;  (b) any temporary or permanent employee of a local government;  (c) a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority; and  (d) a person under contract to the state.”  MONT. CODE ANN. § 2-2-102(7).

Federal employees are not incorporated into this definition and are not “public employees” under Montana law.  Therefore, it is clear that the Unemployment Insurance Division could not legally transmit Unemployment Insurance reports to ICE without a warrant.  The federal government obtained no such warrant.  The complete and un-redacted reports were simply offered in response to written correspondence.

It is especially troubling that the Unemployment Insurance Division released un-redacted copies of these Unemployment Insurance reports without limiting the scope of its disclosure to any specific individuals who were under investigation.  The Montana Supreme Court has held that all individuals retain a privacy interest in personal information such as their social security numbers.  Jefferson County v. Mont. Std., 318 Mont. 173, 180 (Mont. 2003) (even a public official involved in criminal activity, and therefore triggering the public’s right to know in ways not at issue in this case, “does retain a privacy interest in other types of personal information not relevant to her status as a public official, such as her social security number and driver’s license number”); see also Havre Daily News, LLC v. City of Havre, 333 Mont. 331, 341 (Mont. 2006) (acknowledging “that an individual has a protected privacy interest in her social security number and driver’s license number”).

Under Montana law, “[f]ew things are more inherently private” than an individual’s social security number.  State v. Jones, No. DC 03-12, 2003 Mont. Dist. LEXIS 2304 (Mont. Dist. Ct. Nov. 20, 2003).  Accordingly, under the Montana Constitution, the federal government was required to get a warrant before obtaining any records from the State of Montana that disclosed social security numbers.  By voluntarily disclosing private information without any warrant or legal authority, the Unemployment Insurance Division violated the privacy rights of dozens of employees of Melaque Butte, LLC.

Montana statutes also provide that “personal information” such as social security numbers cannot be disclosed by any state agency. MONT. CODE ANN. § 2-6-501(4)(a); 2-6-502.

I concluded my letter by noting that:

The Unemployment Insurance Division is required by law to implement procedures to prevent precisely this type of privacy violation.  Statute provides that:

In order to prevent the misuse of personal and other sensitive information collected by the department in the administration of the unemployment insurance laws, the department shall adopt rules providing for confidentiality of unemployment insurance information, including the circumstances and conditions under which information may be disclosed to appropriate persons and government agencies.  MONT. CODE ANN. § 39-51-603(4).

The same requirement exists in MONT. CODE ANN. § 2-6-502.  A review of the Administrative Rules of Montana reveals no such rulemaking.

On July 22, 2010, I received a response from Pam Bucy.  She argued that “the Unemployment Insurance (UI) program is a cooperative federal-state effort” and claimed that there is an exception written into federal law that would allow Unemployment Wage Reports to be sent to any agency of the federal government without a warrant.  She stated:

20 C.F.R. § 603.4 is the federal rule that requires protection of confidential UI information.  20 C.F.R. § 603.5 enumerates limited exceptions to the confidentiality requirement. Among them is an exception for public officials in performance of their official duties. “Public official” is defined in 20 C.F.R. § 603.2(d) as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law . . .”  Under the preceding authorities, the Department can transmit information to a federal executive agency for performance of their official duties without a warrant.

Of course, there was an obvious and substantial problem with Pam Bucy’s interpretation of the law.  On September 27, 2010, I responded to Pam Bucy’s incorrect assertions:

While I understand and appreciate the fact that you were not personally involved in the decisions made by the Department of Labor and Industry (“DOLI”) in this case, I believe your justification for their actions are not legally supportable.  Contrary to your assertions, federal laws only trump the privacy protections outlined under Montana law if authorities have a court order or subpoena.  Otherwise, federal laws do not in any way curtail the strict confidentiality provisions of MONT. CODE ANN. § 39-51-603(3).

In your letter, you state that the “public official” exception contained in 20 C.F.R. § 603.5(e) allows DOLI to share confidential unemployment insurance information with federal agencies without a warrant.  However, the exceptions upon which you rely for this argument are not supported by the plain language of the regulations themselves.  The law states in pertinent part as follows:

“Disclosure of confidential UC information is permissible under the exceptions in paragraphs (a) through (g) of this section only if authorized by State law and if such disclosure does not interfere with the efficient administration of the State UC law. Disclosure of confidential UC information is permissible under the exceptions in paragraphs (h) and (i) of this section without such restrictions.”  20 C.F.R. § 603.5.

The “public official” exception you rely upon is in paragraph (f) of this regulation, and is therefore applicable only if the disclosure is authorized by Montana law. You have not cited to any statute or constitutional provision that allows state agencies in Montana to turn confidential unemployment insurance information over to federal agencies without a warrant.

Under the plain language of MONT. CODE ANN. § 39-51-603(3), the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a Montana “public official” must inspect the information in the performance of “public duties.”  Nowhere in Montana law does it state that information can be provided to federal “public officials” without a warrant.  In fact, the disclosure of such information is in direct violation of the Montana Constitution itself.

The only exceptions in 20 C.F.R. § 603 that actually trump state law are in paragraphs (h) and (i). The exception in paragraph (h) allows the disclosure of confidential information with a court order or by subpoena.  A court order was neither sought nor obtained in this case.  The exception in paragraph (i) pertains to disclosure for program oversight and audit purposes. Neither of these exceptions applies when a federal agency, such as Immigration and Customs Enforcement (“ICE”), makes a general request for information without a court order or warrant.  Accordingly, I am forced to conclude that you have not provided any authority demonstrating that such a disclosure is legal under state or federal law.

On October 15, 2010, I received another response from Pam Bucy.  In this letter, she noted that she had created new rules to address precisely this situation:

Thank you for your further comments and questions regarding the Department’s policies and procedures on disclosure of personal identifying information. Though I don’t agree with all of your legal conclusions, your argument is certainly noted. First, I wish to assure you and your client that the Department of Labor and Industry is no longer releasing any information to ICE or any other federal or state agencies with which we don’t have information sharing agreements. Though ICE agents have sought information recently, that request has been denied. ICE has been informed that no further information will be provided until the applicable rules have been finalized and that any future release of information will be done pursuant to those rules.

Pam Bucy attached a copy of the new rules, and they were ultimately enacted into law on April 15, 2011.  Initially, I viewed the new rules as protecting release of confidential information without a warrant or valid subpoena.  However, the rules that were enacted contain a very important difference from the version that was provided to me.  As I reviewed the law on the books, I discovered that it contained exceptions so broad that they would effectively destroy any privacy protections that were created.

The new rules provide for three relevant exceptions to confidentiality:

The department shall bar the disclosure of personally identifying information, except as disclosure is permitted by the informed consent of the identified individual(s) or is required under federal or state law to a public official for use in the performance of official duties or pursuant to a valid subpoena or interagency cooperative agreement.

The first problem with the new rule is that it expands the definition of a “public official” to allow for the release of confidential information to federal officers.  Previously, the law stated that only state employees were public officials.  However, the new regulations changed the definition to include:  “an official, agency, or public entity within the executive branch of federal, state, or local government with responsibility for administering or enforcing the law.”

There is also a critical difference between the version of the law that was enacted and the version that was sent to me.  In statutory interpretation, whole meanings of the law can depend upon single words.  In this case, the change amounts to the deletion of the word “or,” but this minor change could have significant consequences.  The version that was provided to me stated that:

The department shall bar the disclosure of personally identifying information, except as disclosure is . . . required under federal or state law to a public official for use in the performance of official duties pursuant to a valid subpoena or interagency cooperative agreement.

In legalese, this version would have only allowed public officials to obtain information only pursuant to a valid subpoena.  But in the version that was enacted, there is an “or” placed in front of the clause stating “pursuant to a valid subpoena.”  In statutory interpretation, this would allow release of confidential information to a public officer even without a valid subpoena.  This is a critical difference, and one that violates Montana’s Constitution and statutes.  I have confirmed that this is not just a typo on the Administrative Rules of Montana website — it also appears in the print version.  If this is simply an error, then I hope it will be quickly corrected in print and online.

[Update:  I have confirmed that the change is not an error; although the draft rule provided to me required a “public official” to obtain a subpoena, the change was made sometime between October 2010 and February 2012.  The notice of rule making included the omission.  I have done a compare and merge of the two versions, and this was the only substantive change in the two versions.]

The second major problem with the new law is that it would allow the release of confidential information through an “interagency cooperative agreement.”  The new rules do not provide any clarification on the requirements to enter into such an agreement, stating simply:

“[I]nteragency cooperative agreement” means a written data-sharing agreement between the department and a public official.

On October 15, 2010, I wrote seeking clarification about how the Department of Labor and Industry would go about ensuring confidentiality of information released pursuant to an “interagency cooperative agreement.”  I never received any response.

The Montana Constitution and statutes protect the release of confidential Unemployment Insurance information, so it is not clear how or why a simple written agreement can trump these privacy protections.

On January 16, 2012, Pam Bucy informed me in a conversation that Immigration and Customs Enforcement (“ICE”) officers have not entered into an “interagency cooperative agreement” to obtain confidential Unemployment Insurance information.  However, she also stated that she was somewhat surprised that they never took this step.  To me, this revealed that she never truly intended to prevent the conduct I went to her to address.

I believe that the manner in which Pam Bucy handled this situation calls into question her interpretation of the privacy protections of the Montana Constitution, and her willingness to share confidential information with the federal government.  These are issues that are important to those who oppose state-level enforcement of immigration laws, but are also important to Montana in many other respects.  For instance, this may be of interest to those who are advocating for Montana’s medical marijuana laws.

In summary, I believe that Pam Bucy took conduct that was a very clear violation of the law, wrote new rules to seemingly prohibit the illegal conduct, but also created significant loopholes that would purport to legalize this very same conduct.

In the end, I view this as actually making our confidentiality protections worse — not better.  In the interest of bureaucratic administration, I believe Pam Bucy has set aside important privacy considerations under Montana law.  As Attorney General, Pam Bucy would often be called upon to deal with conflicts between state and federal laws, and I believe that Montanans expect our Attorney General to enforce our laws and privacy protections despite warrantless requests from the federal government.  To the extent that Pam Bucy’s conduct reflects the manner in which she will handle such issues as Attorney General of the State of Montana, I have serious concerns.

I will continue to monitor what “interagency cooperative agreements” the Unemployment Insurance division enters into to release confidential information to the federal government, and determine if legal action needs to be taken to challenge the administrative rules that Pam Bucy helped create.

If you are an employee or business owner who has concerns about your private information being secretly released to the federal government without a warrant, I encourage you to complain to the Governor’s office.

Jesse Laslovich’s Voting Record on Immigration Bills in the Montana Legislature

Jesse Laslovich is running for Montana Attorney General, and faces a Democratic primary this June.  Jesse Laslovich has served in the Montana legislature since 2000 — first in the Montana State House of Representatives (from 2000-2004) and then in the Montana Senate (from 2004-2010).  The purpose of this post is to analyze his voting record on immigration bills that have come before him.

This research revealed some interesting surprises.

Since 2005, several bills have been sponsored to involve the State of Montana in enforcement of federal immigration laws.  In reviewing a legislator’s voting record on immigration bills, it is important to note that prior to 2007, there were few or no lobbying groups or non-profit entities that were working to lobby or educate on the issue of immigration in Montana.  In 2007, federal immigration reform became a hotly discussed issue, leading to more state-level bills and greater public debate.  At the same time, groups like the Montana Human Rights Network began to lobby on the issue of immigration for the first time.  The record reveals the value that this increased participation has produced.  While major Democratic party leadership voted inconsistently on immigration issues prior to 2007, there was a nearly uniform party stance with regard to these bills in the 2009 and 2011 legislatures — with Democrats opposing state involvement in federal immigration laws, and Republicans in support.

2001 and 2003 Sessions

No relevant immigration-related bills were discovered during the 2001 and 2003 legislative sessions, when Jesse Laslovich served in the House.

2005 Session

This was Jesse Laslovich’s first session in the Senate.  During this session, Jesse Laslovich sponsored SB 149, with the short title:  “State service contracts to be performed by citizen, legal alien, or visa holder.”  The bill would have amended an existing statute to require that state service contracts include language stating that “only citizens of the United States, legal resident aliens, or individuals with a valid visa will perform the services under the contract or any subcontract under the contract.”

The bill did not use the term “illegal alien” and did not seek to impose and civil or criminal penalties.

The bill included a clause stating that its new terms do not apply “if the department determines that there is no responsible vendor meeting the requirements,” if “the cost of complying . . . would create an economic hardship for the state” or if it “would not be in the best interests of the state.”

The minutes from the hearing reveal the reasons that Jesse Laslovich brought the bill:

SEN. LASLOVICH stated that he was bringing the bill forward as the result of a request from a constituent. His constituent asked him what he could do to help prevent the outsourcing of jobs from Montana. He went on to say that he had contacted a friend from the Michigan Legislature who informed him about a bill that Michigan had tried to put through, and this bill was modeled after that bill. SEN. LASLOVICH explained that what the bill would do is prevent state agencies from entering into contracts for the purchase of services with persons, companies or agencies not citizens of the United States.  He informed the Committee that the Department of Administration stood in opposition to this bill because of what they felt would be unintended consequences.

Don Judge, who is running for House District 82 and also faces a primary this June, came out in support of the bill.  He spoke on behalf of Teamsters Local 190, saying “that they understood there could be some concerns regarding this legislation, however, his organization stood in support of the bill.”

The bill ultimately passed the Senate and was transmitted to the House, where it was tabled in committee.  This is the only bill that Jesse Laslovich has sponsored in his legislative career that directly dealt with the issue of immigration.

During the same session, HB 304 was sponsored by Diane Rice (R) to prevent a “person commonly known as an illegal alien” from operating a motor vehicle in the state or getting a driver’s license.  This bill passed the House and was transmitted to the Senate.

Montana progressives may be surprised by some of the bill’s supporters, including Robyn Driscoll (D), Kevin Furey (D), Gail Gutsche (D), Carol Juneau (D), Christine Kaufmann (D), and Dave Wanzenried (D).  Mary Caferro (D) was only one of six who voted against the bill on seceond reading.  I was unable to determine if there was some strategy behind the decision to vote for this bill, but on its face this would be viewed as an “incorrect” vote to avoid state involvement in enforcement of federal immigration laws.

The bill passed the House and was transmitted to the Senate, where it was tabled in the Senate Judiciary committee on which Jesse Laslovich served.

When groups like the Montana Human Rights Network began to work on immigration issues in 2007, and were able to lobby and provide greater education on the issues, these prominent Democrats would vote dramatically differently in later sessions.

It should be noted that another law restricting driver’s licenses based on immigration status actually passed that year instead of HB 304. Another bill, HB 385, imposed the language that was in our laws until just recently, restricting a license to any person “who does not submit proof satisfactory to the department that the applicant’s presence in the United States is authorized under federal law.”  This bill passed the House, and also passed the Senate in a 48-0 vote, with Jesse Laslovich joining in the unanimous decision.

2007 Session

In the 2007 session, when Jesse Laslovich was serving as chair of the Senate Judiciary Committee, there were several anti-immigrant bills sponsored by Jim Shockley.  One of them was SB 260, which would make it a felony for an “illegal alien” to register to vote.  This bill died on second reading in the Senate, with Jesse Laslovich voting to kill the bill.

Another bill was SB 389, which would allow state or local police officers to detain and question people about their federal immigration status.  The bill was tabled in the Senate Judiciary Committee, with Jesse Laslovich voting against allowing it to move to second reading.  Therefore, the bill died in standing committee.

Jim Shockley also sponsored SB 258, which would deny state licenses and license renewal to “illegal aliens.”  The bill passed out of the Senate Business, Labor, and Economic Affairs (which Jesse Laslovich was not a member of).  The bill passed second reading, with Jesse Laslovich voting against the bill.  He voted against the bill on third reading as well, but the bill was transmitted to the House.  The House amended the bill and returned it to the Senate, where Jesse Laslovich again voted against it.  The bill finally died in the Senate on a close 25-25 vote.

My research only revealed one bill during the 2007 session in which Jesse Laslovich voted in favor of imposing restrictions or penalties based on federal immigration status.

SB 346 would have “prohibited certain contracts with illegal aliens.”  In its original language, the bill used the offensive and inaccurate term “illegal alien” throughout the text.  However, this term was stricken and amended to read “unauthorized alien,” which is a defined term within the Immigration and Nationality Act.  As amended, the bill would have prohibited the state from entering into a public contract or subcontract with any person who knowingly employs or contracts with an unauthorized alien, prohibited an unauthorized alien from contracting with the state, and provided criminal penalties (as a misdemeanor) for any unauthorized alien who violated the law.

After being amended, the bill passed Executive Action in the Senate Judiciary Committee by a vote of 11 to 1.  Carol Juneau (D) was the sole ‘No’ vote.  The committee members who voted for the bill were Jesse Laslovich; Lynda Moss (D);  Gary Perry (R); Aubyn Curtiss (R); Larry Jent (D); Dan McGee (R); Jerry O’Neil (R); Gerald Pease (D); Jim Shockley (R); Dave Wanzenried (D); and Carol Williams (D).

The bill ultimately passed the Senate 33-17.  Jesse Laslovich voted to pass the bill.  Other notable votes in favor included:  Steve Gallus (D), Kim Gillan (D), and Larry Jent (D).  Notable votes against the bill included:  Joe Balyeat (R), Carol Juneau (D), and Christine Kaufmann (D).  Also notable is the fact that Lynda Moss (D), Dave Wanzenried (D), and Carol Williams (D) changed their votes to ‘No’ after previously voting to pass it out of committee.

SB 346 died in the House, and was not enacted into law.  While there were some other immigration-related bills in the 2007 session, my research did not reveal any others where Jesse Laslovich had occasion to vote on them.

2009 Session

I have written about the 2009 legislative session in some detail on this blog.  This was the first session in which I actively lobbied in support of immigrant rights, and it was also the most contentious session to date on the issue of state immigration enforcement.  There were 11 relevant anti-immigrant bills that were sponsored during this session by David Howard (R), Gary MacLaren (R), Edward Butcher (R), Gary Perry (R), and Jim Shockley (R).  A description and summary of most of the bills can be found here.

Many of these bills originated in the House and were tabled or defeated before being transmitted to the Senate.  Therefore, Jesse Laslovich only had occasion to vote on a few of these bills.  On all but one of the bills that he was presented with, he made a “correct” vote against state-level enforcement of federal immigration laws.

SB 379 would have made it a misdemeanor or felony to transport, move, conceal, harbor, or shield any alien that you know to be undocumented.  It would also have made it a misdemeanor or felony to encourage an undocumented alien to enter or remain in the state without status.  The bill would also have provided for forfeiture of property belonging to anyone convicted of any of those offenses.  Jesse Laslovich voted against the bill at every vote, but it still passed the Senate.  It was transmitted to the House, where it was tabled in committee.

SB 380 would have required the county treasurer’s office to investigate immigration status and deny motor vehicle registration to undocumented immigrants.  The bill would have resulted in less accurate motor vehicle registrations.  Rather than throwing their hands in the air and going home, undocumented immigrants would simply register in other people’s names or not register at all.  Jesse Laslovich’s Senate Judiciary committee tabled the bill.

SB 381 would have required the state to enter into a costly Memorandum of Understanding so that the Highway Patrol could be deputized to act as Immigration and Customs Enforcement (“ICE”) agents and enforce immigration laws.  This was sponsored by Shockley and passed the Senate Judiciary committee.  Jesse Laslovich voted against the bill at every vote, but it still passed and was transmitted to the House.  It was ultimately tabled in the House Judiciary Committee.

SB 382 would have required the state to expend significant time and resources “cooperating with” the federal government in immigration investigations, and would have prohibited any law that would conflict with obligations to “cooperate with” the federal government.  Once again, Jesse Laslovich voted against the bill at every vote, but it still passed and was transmitted to the House.  It was ultimately tabled in the House Judiciary Committee.

SB 377 would have prevented an employer from being able to deduct any wages or salary paid to an unauthorized alien.  Our fear was that the law would make employers less likely to hire “foreign” looking employees – even those who are authorized for employment – because the potential sanction is so severe.  We also had concerns about how it could be implemented, as the Montana Department of Revenue has no existing method of determining this information.  The bill ultimately passed the Senate on a 32-17 vote, with Jesse Laslovich voting in support of the bill.  However, the bill was ultimately tabled in the House.

Conclusion

The value of having a lengthy voting record is the ability to analyze these votes and potentially extrapolate future outcomes.

Jesse Laslovich voted on three relevant bills in 2005, four relevant bills in 2007, and five relevant bills in 2009 — for  total of 12 bills relating to state-level enforcement of immigration laws.

There were a total of four votes that I would characterize as “incorrect” votes, including one bill that he sponsored.  However, as noted above, the bill he sponsored in 2005 did not attempt to create any enforcement mechanism or penalties.  Therefore, it is not in quite the same category as the later bills sponsored by Jim Shockley and others.

In the 2007 session, Jesse Laslovich was a swing vote that killed SB 258, which would deny state licenses and license renewal to “illegal aliens.”  This was a 25-25 vote.

In the 2009 session, which was Jesse Laslovich’s last session in the Senate, he played an important role on the Senate Judiciary Committee as several of Jim Shockley’s anti-immigrant bills were debated.  In each instance that a bill passed out of that committee, it was on a 7-5 vote with Jesse Laslovich opposing.

As the same objective data can have multiple interpretations, this information is provided for your own review and consideration.  This is the first post in a series about the 2012 election, and a subsequent post is planned to focus on Jesse Laslovich’s opponent, Pam Bucy.

If you have any questions or concerns about this data, please do not hesitate to contact me.