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SALT LAKE CITY — Immigration-related provisions of the state's construction license law are unconstitutional, a lawsuit filed Wednesday in U.S. District Court claims.
Three sections of the law passed by the Utah Legislature in 2011 violate the Supremacy Clause of the United States Constitution and violate due process guarantees, the lawsuit states.
The complaint, filed by attorneys representing Universal Contracting, LLC, asks the federal court to "declare invalid and permanently enjoin the enforcement of the immigration-related portions" of SB35.
The intent of the 2011 legislation, sponsored by Sen. Karen Mayne, D-West Valley City, was to address companies reclassifying workers as owners, purportedly to skirt payroll taxes, workers compensation and unemployment insurance.
Universal, based in American Fork, has about 700 owners who work in a wide array of construction trades. The limited-liability company oversees business functions for members, such as payroll, taxes and other accounting matters. Moore said Universal has not had a single consumer complaint in its history.
This particular piece of legislation was not carefully and artfully crafted, so it conflicts with federal law. You cannot do that.
–Marty Moore, plaintiff's attorney
But due process questions have also resulted from the bill and the lawsuit alleges that the legislation violates "the substantive and procedural due process guarantees of the United States Constitution."
Plaintiff's attorney Marty E. Moore said recent rulings regarding state-level immigration laws are instructive.
"If a state wants to get into immigration it has to be extremely careful and artful in crafting legislation. This particular piece of legislation was not carefully and artfully crafted so it conflicts with federal law. You cannot do that," Moore said.
Since the passage of SB35, the state Division of Occupational and Professional Licensing has cited Universal six times alleging individuals holding membership interest in Universal were not legally present in the United States, which violates 2011 state law.
Following an agency hearing on the allegations, Universal was fined $250 per citation and ordered to cease and desist from further violations of the state law.
Of greater concern is the possibility of the state revoking Universal's contractor license, effectively putting it out of business, Moore said.
The State of Utah is currently defending a constitutional challenge to Utah's immigration enforcement bill, HB497, also passed during the 2011 legislative session.
Oral arguments were heard in February but there will be no ruling until the Supreme Court issued its decision on a challenge to Arizona's law.
Attorneys representing the Department of Justice and a coalition of civil rights organizations have also argued that HB497 is unconstitutional because it usurps the federal government's authority to set immigration policy.
Attorneys for the state of Utah have maintained the law is markedly different from other states' immigration laws that have been challenged by the federal government and should be allowed to go into effect.
"There is no adequate remedy at law available to Universal and its members if defendants continue to enforce the unconstitutional immigration-related provisions in SB35 to the point of revoking Universal's contractor license," the plaintiffs' claim for relief states.
Universal follows the requirements of the 1986 Immigration Reform and Control Act, Moore said. One provision of the federal law established sanctions for employers who knowingly hire undocumented workers.
All members of Universal complete I-9 forms, which federal officials use to document whether a person is authorized to work in the United States, Moore said.
However, sections of SB35 fail to "allow a defense to any licensee that has complied with federal immigration law," the lawsuit states. The complaint goes on to claim that those sections of the state law are "preempted by federal law and unconstitutional under the Supremacy Clause."
Mayne could not be reached for comment, nor could Utah Attorney General Mark Shurtleff, who along with the Division of Occupational and Professional Licensing and Francine Giani, executive director of the Utah Department of Commerce, are named as defendants.
