Valle Del Sol v. State of Arizona

concurring in part and dissenting in part:

I concur with the majority opinion’s holdings regarding standing and the void for vagueness doctrine, as well as its holding that “the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a prehminary injunction.” Op. at 1029. I write separately to address Part III of the majority’s opinion, from which I respectfully dissent. Because this case is resolved on other grounds, namely vagueness, I believe the court should not reach the preemption issue. See Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 953 (9th Cir.2009) aff'd sub nom. Brown v. Entm’t Merchants Ass’n, — U.S. -, 131 S.Ct. 2729 , 180 L.Ed.2d 708 *1030 (2011) (“Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ [other] challenges to the Act____’ 1 And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in the judgment), cited in Morse v. Frederick, 551 U.S. 393, 431 , 127 S.Ct. 2618…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VALLE DEL SOL INCORPORATED; No. 12-17152

COALICION DE DERECHOS

HUMANOS; UNITED FOOD AND D.C. No. COMMERCIAL WORKERS 2:10-cv-01061-

INTERNATIONAL UNION; BORDER SRB

ACTION NETWORK; JIM SHEE;

UNKNOWN PARTY, Named as Jane Doe #3 in Amended Complaint; OPINION JOHN DOE #1, proceeding under pseudonym; LUZ SANTIAGO;

ARIZONA SOUTH ASIANS FOR SAFE

FAMILIES; JAPANESE AMERICAN

CITIZENS LEAGUE; LOCAL 5 SERVICE

EMPLOYEES INTERNATIONAL UNION;

SOUTHSIDE PRESBYTERIAN CHURCH;

TONATIERRA COMMUNITY

DEVELOPMENT INSTITUTE; C.M., a minor; ASIAN CHAMBER OF

COMMERCE OF ARIZONA; SERVICE

EMPLOYEES INTERNATIONAL UNION;

ARIZONA HISPANIC CHAMBER OF

COMMERCE; PEDRO ESPINOZA;

MAURA CASTILLO; JOSE ANGEL

VARGAS,

Plaintiffs-Appellees,

v. MICHAEL B. WHITING; EDWARD G. RHEINHEIMER; DAISY FLORES, Gila County Attorney, in her official capacity; RICHARD M. ROMLEY, Maricopa County Attorney, in his official capacity; MATTHEW J. SMITH, Mohave County Attorney, in his official capacity; BRADLEY CARLYON, Navajo County Attorney, in his official capacity; SAM…

Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

Plaintiffs challenge Arizona Revised Statutes § 13-2929, which attempts to criminalize the harboring and transporting of unauthorized aliens within the state of Arizona. 1 The district court granted the plaintiffs’ motion for a preliminary injunction with respect to this provision on the basis that § 13-2929 is preempted by federal law. Arizona appealed. We conclude that the statute as written is void for vagueness under the Due Process Clause because one of its key elements- — being “in violation of a criminal offense” — is unintelligible. We also find that the provision, however it is interpreted, is preempted by federal law and thus invalid under the Supremacy Clause. Therefore, we affirm the district court’s grant of a preliminary injunction.

BACKGROUND

This case arises from the extensive litigation regarding Arizona’s 2010 Senate Bill 1070 (“S.B. 1070”). S.B. 1070, which is comprised of a variety of immigration-related provisions, was passed in response to the growing presence of unauthorized aliens in Arizona. The stated purpose of S.B. 1070 is “to make attrition through enforcement the…