Amicus Curiae Brief — Morales, Deceased v. Barge-Wagener Construction Co.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

JOSE ANTONIO MORALES, et al.,

. Petitioners,

BARGE-WAGENER CONSTRUCTION Co., et al..

Respondents.

On Petition for Writ of Certiorari from the

Supreme Court of Georgia

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF

UNITED STATES OF MEXICO, LEAGUE OF UNITED

LATIN AMERICAN CITIZENS AND

MEXICAN AMERICAN LEGAL DEFENSE AND

EDUCATIONAL FUND IN SUPPORT OF PETITIONERS

EDUARDO PENA KOTELES ALEXANDER

National Legal Advisor Counsel of Record

LEAGUE OF UNITED LATIN NIHAR R. MOHANTY

AMERICAN CITIZENS ALEXANDER, GEBHARDT,

1314 19th Street, N.W. APONTE & MARKS

Washington, D.C, 20036 Lee Plaza—Suite 805

(202) 835-1555 SHOl Georgia Avenue

Silver Spring, MD 20910

(301) 589-2222

KAN (301) HR9-25283

ANTONIA ILERNANDEZ

E. RICHARD LARSON

KEVIN G. BAKER

MEXICAN AMERICAN LIc. RAMON NiLOTL-RAMIREZ

LEGAL DEFENSE AND Consul General

EDUCATIONAL FUND I; MBASSY OF MEXICO

634 South Spring Street 2827 16th Street, N.W.

11th Floor Washington, D.C. 20009

Los Angeles, CA 90014 (202) 736-1010

(213) 629-2512

Attorneys for Amici Curiae

October 18, 1993

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Siuprenwe Court of thy United States

OCTOBER TERM, 1993

No. 93-342

Jose ANTONIO MORALES, et al.,

Petitioners,

Vv.

BARGE-WAGENER CONSTRUCTION CoO., et al.,

Respondents.

On Petition for Writ of Certiorari from the

Supreme Court of Georgia

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The above amici move pursuant to Rule 37.2 of the

Rules of this Court for leave to file the attached brief

amicus curiae in support of the petition for Writ of Certio-

rari. Petitioners have consented to the filing of this brief

(consent letter has been filed with the clerk of this Court),

but Respondents have withheld their consent. Amici rec-

ognize that the Court’s Rules disfavor unconsented amici

briefs, but because the matter raised by the Petitioners’

Writ of Certiorari petition affects primarily Mexican legal

immigrants to the United States, amici are compelled to

file. The amici joining in this motion represent the Mexi-

can population who legally immigrate to the United States

and are directly affected by similar workers’ compensation

Statutes.

Wherefore, the Uniied States of Mexico, the League of

United Latin American Citizens, and the Mexican Ameri-

can Legal Defense and Educational Fund request that this

Court grant leave to file the accompanying amicus curiae

brief in support of the granting of Petitioners’ Writ of

Certiorari.

EDUARDO PENA

National Legal Advisor

LEAGUE OF UNITED LATIN

AMERICAN CITIZENS

1314 19th Street, N.W.

Washington, D.C. 20036

(202) 835-1555

ANTONIA HERNANDEZ

E. RICHARD LARSON

KEVIN G. BAKER

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

634 South Spring Street

11th Floor

Los Angeles, CA 90014

(213) 629-2512

Respectfully submitted,

KOTELES ALEXANDER

Counsel of Record

NIHAR R. MOHANTY

ALEXANDER, GEBHARDT,

APONTE & MARKS

Lee Plaza—Suite 805

8601 Georgia Avenue

Silver Spring, MD 20910

(301) 589-2222

FAX (301) 589-2523

Lic. RAMON XILOTL-RAMIREZ

Consul General

EMBASSY OF MEXICO

2827 16th Street, N.W.

Washington, D.C. 20009

(202) 736-1010

Attorneys for Amici Curiae

QUESTIONS PRESENTED FOR REVIEW

1. Can Georgia, within the confines of the Equal Pro-

tection Clause of the Fourteenth Amendment, discrim-

inate against nonresident aliens/dependents in the dis-

pensation of death benefits under its workers’ compensa-

tion statute.

2. Does the equal protection clause forbid Georgia from

paying Canadian citizens or residents/dependents sub-

stantially more death benefits than all other nonresident

aliens dependents under its Workers’ Compensation Act.

3. Does Georgia’s Workers’ Compensation Act, by

favoring Canadian residents or citizens with death benefits

that far exceed the death benefits received by residents or

citizens from other countries, create an impermissible and

unconstitutional intrusion by Georgia into the field of

foreign relations.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............. “i i

py TP Be igs | yy! RC nnarnarnrennnee iv

INTEREST OF AMICUS CURIAE ..............00.0..00..0........ 2

REASONS FOR GRANTING THE WRIT .................... 1

I. THE DECISION BELOW PRESENTS AN IM-

PORTANT EQUAL PROTECTION QUESTION

UNDER THE FOURTEENTH AMEND-

MENT CONCERNING THE CONSTITU-

TIONALITY OF STATE DISCRIMINATION

AGAINST NONRESIDENT ALIENS ............... 4

Il. THE DECISION BELOW MISCONSTRUES

THE REACH OF THE FOURTEENTH

AMENDMENT’S EQUAL PROTECTION

CLAUSE AS IT RELATES TO DISTINC-

TIONS MADE WITHIN A CLASS OF NON-

RESIDENT ALIENS ON THE BASIS OF

ALIENAGE AND NATIONAL ORIGIN ........ ia 7

Ill. THE DECISION BELOW PRESENTS AN

IMPORTANT QUESTION CONCERNING

THE CONSTITUTIONALITY OF A STATE’S

WORKERS’ COMPENSATION ACT WHICH,

BY MAKING DISTINCTIONS BASED UPON

ALIENAGE AND NATIONAL ORIGIN, IN-

SERTS THAT STATE INTO THE SPHERE

OF FOREIGN AFFAIRS THAT IS EXCLU-

SIVE TO THE FEDERAL GOVERNMENT.... 15

CFPC IIS cectorcintnnsensenttatunsincnciniiainiesipaneiiiandanieipaniniéiditinn 20

(iii)

TABLE OF AUTHORITIES

CASES Page

Alegria v. United States, 945 F.2d 1523 (11th Cir.

1991) ... 7,13

Alexander Ranch, Ine. v. Central Appraisal Dist.

of Erath County, 733 S.W.2d 303 (Tex. 1987),

cert, denied, 486 U.S. 1026, 100 L. Ed. 2d 236,

108 S. Ct. 2005 (1988) 8, 13,14

Alvarez Martinez v. Industrial Comm'n of Utah,

720 P.2d 416 (Utah 1986) . aA 5

Arizona v. Hicks, 480 U.S. 321, 94 L. Ed. 2d 347,

107 S. Ct. 1149 (1987) ... . ‘Satieies 18

Barbier v. Connolly, 113 U.S. 27, 28 L. Ed. 923,

5 S. Ct. 357 (1884) .... — wee i)

Barge-Wagener Constr. Co. v. Morales, 263 Ga.

190, 429 S.E.2d 671 (1993) passim

Cabell v. Chavez-Salido, 454 U.S. 432, 70 L. E. 2d

677, 102 S. Ct. 735 (1982) 9

Califano v. Goldfarb, 430 U.S. 199, 51 L. Ed. 2d

270, 97 S. Ct. 1021 (1977) 6

Chae Chan Ping v. United States (“Chinese Ex-

clusion Case’’), 130 U.S. 581, 32 L. d. 1068, 9

S. Ct. 623 (1888) 16

Clark v. Allen, 331 U.S. 508, 91 L. Ed. 1633, 67

S. Ct. 1431 (1947) 15, 17

De Ayala v. Florida Farm Bureau Casualty Ins.

Co., 543 So. 2d 204 (Fla. 1989) 5

Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15

L. Ed. 691 (1856) 6

FS. Royster Guano Co. v. Virginia, 258 U.S. 412,

64 L. Ed. 989, 40 S. Ct. 560 (1920) 9

Frontiero v. Richardson, 411 U.S. 677, 36 L. Ed. 2d

583, 93 S. Ct. 1764 (1973) 9

Garzon v. United States, 605 F. Supp. 738 (S.D.

Fla. 1985) . passim

Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d

534, 91S. Ct. 1848 (1971)... passim

Hampton v. Mow Sun Wong, 426 U.S. 88, 48 L. Ed.

2d 495, 96 S. Ct. 1895 (1976) ... . 9,10

Hillshorough Township v. Cromwell, 326 U.S. 620,

90 L. Ed. 358, 66 S. Ct. 445 (1946) 13

————————————

TABLE OF AUTHORITIES—Continued

Page

Hines v. Davidowitz, 312 U.S. 52, 85 L. Ed. 581,

FR SG 8 |

Hooper v. Bernalillo County Assessor, 472 U.S.

612, 86 L. Ed. 2d 487, 105 S. Ct. 2962 (1985)... 10

In Re Alien Children Educ. Litig., 501 F. Supp.

544 (S.D. Tex. 1980), aff’d sub nom. Plyler v.

Doe, 457 U.S. 202, 72 L. Ed. 2d 786, 102 S. Ct.

2382 (1982) eines 9

Jalifi v. Industrial Comm'n of Ariz., 132 Ariz. 233,

644 P.2d 1319, cert. dismissed, 459 U.S. 899, 74

L. Ed. 2d 161, 103 S. Ct. 200 (1982) 5

Johnson v. Eisenstrager, 339 U.S. 763, 94 L. Ed.

1255, 70 S. Ct. 936 (1950) . 12

Jurado v. Popejoy Constr. Co., 253 Kan. 116, 853

P.2d 669 (1993) 5

Korematsu v. United States, 323 U.S. 214, 89 L.

Ed. 194, 65 S. Ct. 193 (1944) 14

Lehndorff Geneva, Inc. v. Warren, 74 Wis. 2d 369,

246 N.W.2d 815 (1976) 8, 13, 14

Lindholm v, United States, 808 F. Supp. 7 (D.D.C.

1992) 7,13

Madera v. Insurance Accident Comm'n, 262 U.S.

199, 67 L. Ed. 1091, 43 S. Ct. 604 (1923) 6

Michiaan v. Lona, 468 U.S. 1082, 77 L. Ed. 2d

1201, 103 S. Ct. 3469 (1983) 2

Olmstead », United States, 277 U.S. 488, 72 L. Ed.

944, 48 S. Ct. 564 (1928) 19

Pedrazza v. Sid Fleming Contractor, Inc., 94 N.M.

59, 607 P.2d 597 (1980) 5, 6

Petia v. Industrial Comm'n, 140 Ariz. 510, 683 P.2d

309 (1984) 5

Plyler v. Doe, 457 U.S. 202, 72 L. Ed 2d 786, 102

S. Ct. 2382 (1982) passim

Reagents of l/niv. of Cal. v. Bakke, 488 U.S. 265, 57

L. Ed. 2d 750, 98 S. Ct. 2733 (1978) Af)

Rostker v. Goldhera, 453 U.S. 57, 69 L. Ed. 2d 478,

101 S. Ct. 2646 (1981) 9

Russian Volunteer Fleet ». United States. 282 U.S.

481, 75 L. Ed. 473, 51 S. Ct. 229 (1931) 7

Sailer v. Tonkin, 356 F. Supp. 72 (V.I. 1973) 14

TABLE OF AUTHORITIES—Continued

Page

Shames v. Nebraska, 323 F. Supp. 1321 (D. Neb.

1971), aff'd, 408 U.S. 301, 33 L. Ed. 2d 321, 92

S. Ct. 2478 (1972) . . a Ant 17

Stebco, Inc. v. United States, 733 F. Supp. 1387

(S.D. Cal.), appeal dismissed, 939 F.2d 686 (9th

Cir. 1990) pine Ae ie ; 7,13

Sugarman ». Dougall, 413 U.S. 634, 837 L. Ed. 2d

853, 93 S. Ct. 2842 (1973) 10, 14

Takahashi v. Fish & Game Comm’n, 334 US. 410,

92 L. Ed. 1478, 68 S. Ct. 1188 (1948) 10, 11

Tayyari v. New Mexico State Univ., 495 F. Supp.

1365 (D.N.M. 1980) * 14

Town of Ball v. Rapides Parish Policy Jury, 746

F.2d 1049 (5th Cir. 1984) 10

Truar v. Raich, 239 U.S. 38, 60 L. Fd. 131, 36S. Ct.

7 (1915) 1]

United States v. Curtiss-Wright Export Corn., 299

U.S. 304, 81 L. Ed. 255, 57 S. Ct. 216 (1936) 19

United States v. Verdugo-Urauidez, 494 U.S, 259,

108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990) 12

Weinberger, v. Weisenfeld. 420 U.S. 636, 48 L. Ed.

2d 514, 95 S. Ct. 1225 (1975) 6

Wengler ». Drnagists Mut. Ins. Co.. 446 US. 142,

64 L. Ed. 2d 107, 100 S. Ct. 1540 (1980) 6

Yick Wo v. Hoplcins, 118 U.S. 356, 30 L. Ed. 220,

6S. Ct. 1064 (1886) 10, 11

Zobel v. Williams, 457 U.S. 55, 72 L. Ed. 2d 672,

102 S. Ct. 2309 (1982) 10

Zschernig v. Miller, 389 U.S. 429, 19 L. Fa. 2d

683, 88 S. Ct. 664 (1968) passim

CONSTITUTIONAL AND STATUTORY |

AUTHORITY

U.S. Const. amend. XTV, § 1 2

).S8. Const. art. I, § 2, el. 2 16

. Const. art. I, § 8, el. 11 16 |

. Const. art. T, § 8, el. 12 16

. Const. art. T, § 10, el. 1 2

. Const. art. T, § 10, el. 3 2,19

. Const. art. IT, § 2, cl. 1__. 16

EEE

ee |

DMinpninin

vii

TABLE OF AUTHORITIES—Continued

Page

Us. Const. art. I, § 16, ol. 8 ........................... 16

28 U.S.C. § 1257(a) (1988) .........0000000000 edad 2

Ga. Code Ann. § 34-9-261 (Michie 1993)... 4

Ga. Code Ann. § 34-9-265(b) (3) (Michie 1993)... 4

Ga. Code Ann. § 34-9-265(b) (5) (Michie 1993) | 2,4, 5,14

Ga. Code Ann. § 34-9-265(d) (Michie 1993)... 4

ee i I ce 10

Or. Rev. Stat. § 111.070 (1957) 17

MISCELLANEOUS

Aristotle, Ethica Nicomachea V.3.1131-1131b (W.

OE I 8

Aristotle, Metaphysicai 5.1055b-1056b (W. Ross

RN II I te 8

Arthur “pyey The Law of Workmen’s Compensa-

tion §§ 5.20, 5.30 (1952 & Supp. 1998) . ee

eneaar 7 Consular Affairs, U.S. Dept. of State,

No, 28, Visa Bulletin (1993) ..... 4

Cong. Globe, 39th Cong., 1st Sess. 342-43 (1866) 8,12

Fairman, Does the Fourteenth Amendment Incor-

porate the Bill of Rights?: ne Original Under-

standing ?, 2 Stan. L. Rev. 5 (1949) ... 12

Frank & Munro, The Original Understanding of

“Equal Protection of the Laws,” 50 Colum. L.

Rev. 131 (1950) _.. 12

Gerald L. Neuman, Whose Constitution ?, 100 Yale

L.J. 909 (1991) . Eee 7

HI. Kelsen, Aristotle's 8 ‘Doctrine of Justice in What

Is Justice? 110, 127-28 (1957) .. x

John Higham, Strangers in the Land 158-834

(1967) Oe ewe 11

Joseph Tussman & Jacobus tenBroek, The Equal

Protection of the Laws, 37 Cal. L. Rev. 341

RIPUPIIEE > cusetnonsediscsibicobdediadesnilesanaamieei te 2 amt i 8

K. Mare-Wogau, Aristotle’s Theory of Corr ective

Justice and Reciprocity in Philosophical Essays

i); eee na 8

Kevin P. Lewis, Dealing w ith South Africa: The

Constitutionality @f Stet» end Local Divestment

Legislation, 61 Tul. L. Kev. 469 (1987) ......... 17

viii

TABLE OF AUTHORITIES—Continued

Paul Enrlich, The Golden Door 129-135 (1979) _..

Paul Savoy, The Spiritual Nature of Equality:

Natural Principles of Constitutional Law, 28

pe | ee

Ricardo Romo, East Los Angeles: History of a

Barrio 91-110 (1968) ..........eeeccccccccccccecececceceecee

Roger Daniels, Coming to America 246, 307, 333,

SI A oe a

Sri Aurobbindo, The Human Cycle 197 (A. Ghose

Symposium, Aliens, Due Process and “Community

Ties”: A Response to Martin, 44 U. Pitt. L. Rev.

eC chensnaieeinintt ee

Symposium, Due Process and Membership in Na-

tional Community: Political Asylum and Beyond,

44 U. Pitt. L. Rev. 165 (1988) ......0000 0.

The Federalist No. 42 (James Madison) _... Uh Rie

U.S. Printing Office, North American Free Trade

Agreement (CUGGB) oo. ncccccccccccceccececcocecceccccsceccee

W. Hardie, Aristotle’s Ethical Theory 189 (2d ed.

EE ee Nad RITE Ds, Se ire Aimee Lage ele

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-342

JOSE ANTONIO MORALES, et al.,

” Petitioners,

BARGE-WAGENER CONSTRUCTION Co., et al.,

Respondents.

On Petition for Writ of Certiorari from the

Supreme Court of Georgia

BRIEF AMICUS CURIAE OF

UNITED STATES OF MEXICO, LEAGUE OF UNITED

LATIN AMERICAN CITIZENS AND

MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

OPINION BELOW

The opinion of the Supreme Court of Georgia on the

merits and reversing the trial court has been reported at

263 Ga. 190, 429 S.E.2d 671 (1993).

JURISDICTION

The judgment of the Supreme Court of Georgia was

enacted on May 24, 1993, and a petition for reconsidera-

tion was denied on June 18, 1993.

While the opinion of the court below makes reference

to the Georgia Constitution, it does not provide adequate

and independent state grounds for its decision. Michigan

v. Long, 463 U.S. 1032, 1040-41, 77 L. Ed. 2d 1201,

103 S. Ct. 3469 (1983). Therefore, the jurisdiction of

this Court is invoked by 28 U.S.C. § 1257(a).

STATUTORY AND CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1:

. nor shall any state .. . deny any person within

its jurisdiction the equal protection of the laws.”

U.S. Const. art. I, § 10, cl. 1:

“No State shall enter any Treaty, Alliance, or Con-

federation...”

U.S. Const. art. I, § 10, cl. 3:

“No State shall, without the consent of Congress,

. . enter into any Agreement or Compact with a

foreign Power...”

Ga. Code Ann. § 34-9-265(b)(5) (Michie 1993):

(b) If death results instantly from an accident aris-

ing out of and in the course of employment . .

the compensation under this chapter shall be as

follows:

(5) If the employee leaves dependents who are not

citizens or residents of the United States or the Do-

minion of Canada at the time of the accident. the

amount of compensation shall not in any case exceed

$1,000.00.

INTEREST OF AMICUS CURIAE

The United States of Mexico, is a federal republic,

located immediately South of the United States. The in-

terest of the United States of Mexico is based on the

fact that a continuous flow of people from one side of

our common border to the other has existed since be-

fore Columbus. In recent years, immigration North from

Mexico has increased substantially, drawn by guest worker

programs and other job opportunities. Many of these

workers leave their families in Mexico while they work in

the United States. Consequently, Mexican citizens consti-

tute a significant number of the individuals that are severely

impacted by the laws similar to the Georgia Workers’

Compensation Act.

The League of the United Latin American Citizens

(“LULAC”) is a national membership organization orig-

inally chartered in 1929. Its objectives are to protect and

defend the civil rights of all Americans, and to improve

the quality of life for all Americans. During the course

of its sixty-four (64) year history, LULAC has often

appeared as plaintiff or amicus in litigation before this

Court and in many other federal and state courts to vin-

dicate the rights of minorities, particularly Hispanics, who

are denied the full enjoyment of their constitutional rights.

Many LULAC members who reside and work in the

United States are not citizens of the United States or

Canada. Some of them have dependent families who do

not reside in the United States or Canada, and conse-

quently would be victims of discrimination from state

laws similar to Georgia Workers’ Compensation Act.

The Mexican American Legal Defense and Educational

Fund (““MALDEF”) is a national non-profit civil rights

organization established in 1967. Its principal objective

is to secure the civil rights of Latinos in the United States

through litigation and education. It has frequently repre-

sented plaintiffs in civil rights and equal protection mat-

ters and appeared as amicus curiae before this Court.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW PRESENTS AN IMPOR-

TANT EQUAL PROTECTION QUESTION UNDER

THE FOURTEENTH AMENDMENT CONCERNING

THE CONSTITUTIONALITY OF STATE DISCRIM-

INATION AGAINST NONRESIDENT ALIENS

Jose Morales, age thirty-one, was a resident alien from

Mexico who was employed as a construction worker by

Barge-Wagener Construction Company in Georgia when

he fell twenty-two stories to his death from a building on

which he was working. He is survived by his wife and

two minor children, all of whom are citizens and residents

of Mexico. His wife and children were awarded the max-

imum lump sum of $1,000.00, pursuant to Ga. Code

Ann. § 34-9-265(b)(5) (Michie 1993), instead of being

eligible for death benefits at least ten times this amount.’

If, however, Ms. Moraies and her children had resided in

Canada instead of Mexico, she would have been entitled

to full benefits. Interestingly, had Ms. Morales and her

children been Canadian citizens residing in Mexico at

the same address, she would have been entitled to full

benefits. Ironically, if Ms. Morales had been living in

the United States illegally, she would have been entitled

to full benefits.”

The substantial nature of the issues raised by Ms.

Morales in this appeal is evident by the sharp disagree-

ment amongst the members of the Georgia Supreme

Court. The majority held that the death benefits provided

pursuant to Ga. Code Ann. § 34-9-265(b)(5) (Michie

1993) created a right solely in the dependents. More-

over, even though the Georgia statute was acknowledged

to be discriminatory because the benefits were substan-

1Ga. Code Ann. §§ 34-9-261, 34-9-265(b)(3) and (5), 34-9-

265(d) (Michie 1993) also allows United States citizens to receive

the $100,000.00 death benefit, but that is not the subject of com-

parison.

2 Dependents of legally immigrated residents from Mexico cur-

rently must wait a minimum of three years before becoming eligi-

ble for legal residency in the United States. Bureau of Consular

Affairs, U.S. Dept. of State, No. 28, Visa Bulletin (1993).

a a ee

tially less, the Court ruled that these nonresident aliens/

dependents are not protected by the Fourteenth Amend-

ment because they were not within the reach of the Consti-

tution. Two other justices, in a vigorous and persuasive

dissent, found that the majority’s “artful” opinion—that

the death benefits created a right solely in the dependents

—was without foundation. Barge-Wagener Constr. Co. v.

Morales, 263 Ga. 190, 429 S.E.2d 671, 674 (1993)

(Benham, J., dissenting) .*

The court below realized that, if the dependents were

able to raise the resident alien’s constitutional rights, it

would not only have to confront the Fourteenth Amend-

ment’s Equal Protection Clause, but also the statute would

be subject to a higher level of scrutiny. Therefore, by

shifting its constitutional analysis away from the deceased

resident alien, to his wife and children, all of whom were

nonresident aliens, the Georgia Supreme Court avoided

the equal protection analysis and the heavy burden it

carries in justifying discrimination between similarly sit-

uated persons.

The urgency of this issue has grown in importance since

the last time the Court was presented with a somewhat

similar issue in Jalifi v. Industrial Comm’n of Ariz., 132

Ariz. 233, 644 P.2d 1319, cert. dismissed, 459 U.S. 899,

74 L. Ed. 2d 161, 103 S. Ct. 200 (1982). After Jalifi, sev-

eral states have addressed the issue without reaching a con-

sensus and no predominate judicial viewpoint has emerged

or appears to be emerging. See Jurado v. Popejoy Constr.

Co., 253 Kan. 116, 853 P.2d 669 (1993) (applying equal

protection); De Ayala v. Florida Farm Bureau Casualty

Ins. Co., 543 So. 2d 204 (Fla. 1989) (applying equal pro-

tection): Alvarez Martinez v. Industrial Comm'n of Utah,

720 P.2d 416 (Utah 1986) (refusing to apply equal

protection); Pefia v. Industrial Comm'n, 140 Ariz. 510,

683 P.2d 309 (1984) (refusing to apply equal protec-

tion): Pedrazza v. Sid Fleming Centractor, Inc., 94 N.M.

3 The dissent concluded that the majority’s analogy to the Wrong-

ful Death statute was fatally flawed. Barge-Wagener Constr. Co.

v. Morales, 263 Ga. 190, 429 S.E.2d at 675 (1993).

59, 607 P.2d 597 (1980) (refusing to apply equal pro-

tection). Indeed, the Georgia Supreme Court has added

to the confusion by failing to provide the proper frame-

work for analyzing the equal protection clause. And,

there is no indication that this issue will be resolved in

the foreseeable future in the absence of a decision by this

Court. To nonresident aliens, particularly with the possi-

ble emergence of the North American Free Trade Agree-

ment (“NAFTA”), this question presents perhaps the most

important issue in the evolution of equal protection juris-

prudence. U.S. Printing Office, North American Free

Trade Agreement (1993).

Because the Georgia Supreme Court determined that

the death benefits accrued exclusively to the benefit of the

survivors, one is forced to focus on the rights of the non-

resident alien/dependent.*. When this Court was con-

fronted with the same type of dependent discrimination in

the context of gender issues, this Court’s analytical frame-

work was from the perspective of the employee, not the

dependent. See, e.g., Wengler v. Druggists Mut. Ins.

Co., 446 U.S. 142, 64 L. Ed. 2d 107, 100 S. Ct. 1540

(1980); Weinberger v. Weisenfeld, 420 U.S. 636, 43

L. Ed. 2d 514, 95 S. Ct. 1225 (1975). The Petitioners

more than adequately address this point in their brief.

Amici would like, however, to direct this Court’s attention

to the premise underlying the Georgia Supreme Court

decision—that nonresident aliens are “persons” without

constitutional rights that a state is “bound to respect”.

Dred Scott v Sanford, 60 U.S. (19 How.) 393, 407, 15

L. Ed. 691 (1856).

4 See Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 64

L. Ed. 2d 107, 100 S. Ct. 1540 (1980) (discussing gender discrimi-

nation in workers’ compensation statute); Califano v. Goldfarb,

430 U.S. 199, 51 L. Ed. 2d 270, 97 S. Ct. 1021 (1977) (discussing

gender discrimination in Federal Old-Age, Survivors, and Dis-

ability Insurance Program); Weinberger v. Weisenfeld, 420 U.S.

636, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975) (examining gender

discrimination in Social Security Act); Madera v. Insurance

Accident Comm’n, 262 U.S. 499, 67 L. Ed. 1091, 43 S. Ct. 604

(1923) (exploring discrimination against employer by workers’

compensation statute).

Il. THE DECISION BELOW MISCONSTRUES THE

REACH OF THE FOURTEENTH AMENDMENT’S

EQUAL PROTECTION CLAUSE AS IT RELATES

TO DISTINCTIONS MADE WITHIN A CLASS OF

NONRESIDENT ALIENS ON THE BASIS OF

ALIENAGE AND NATIONAL ORIGIN

This case presents an issue of exceptional importance

that should be decided by this Court, since it has never

considered the full extent of how the Fourteenth Amend-

ment’s Equal Protection Clause applies to nonresident

aliens. Indeed, because this Court has not established the

parameters by which the equal protection clause applies to

nonresident aliens, the Georgia Supreme Court was able to

“artful[ly]” exploit this constitutional vacuum. At the

heart of the decision in the court below is that nonresi-

dent aliens, regardless of the circumstances, do not pos-

sess constitutionally protected rights.° This Court has,

however, held that nonresident aliens do, under certain

circumstances, have a constiiutionally protected status un-

der the United States Constitution that must be respected

by states. See, e.g., Russian Volunteer Fleet v. United

States, 282 U.S. 481, 75 L. Ed. 473, 51 S. Ct. 229

(1931). Some lower federal courts have said that non-

resident aliens, under certain circumstances, do possess con-

Stitutional protected rights under the Fourteenth Amend-

ment’s Equal Protection Clause. See, e.g., Alegria v.

United States, 945 F.2d 1523 (11th Cir. 1991); Lindholm

v. United States, 808 F. Supp. 7 (D.D.C. 1992); Stebco,

Inc. v. United States, 733 F. Supp. 1387 (S.D. Cal.),

appeal dismissed, 939 F.2d 686 (9th Cir. 1990); Garzon

5 The issue raised by the Georgia Supreme Court brings into

focus two questions that are basic to the tenets of constitutional

law: (i) the domain of American constitutionalism and (ii) the

concept of constitutional equality. See Gerald L. Neuman, Whose

Constitution ?, 100 Yale L.J. 909 (1991). Professor Neuman stresses

the realization that, as our country has developed, the preferred

application of the Constitution has evolved from a strict social

contract approach, applying constitutional protections only to United

States citizens, into an expanding municipal law approach which

extends the Constitution to those who are affected by the laws of

the United States. Jd.

v. United States, 605 F. Supp. 738 (S.D. Fla. 1985).

And, the Wisconsin and Texas Supreme Courts have

found that, under certain circumstances, nonresident

aliens do possess righis under the Fourteenth Amend-

ment’s Equal Protection Clause. See, e.g., Alexander

Ranch, Inc. v. Central Appraisal Dist. of Erath County,

733 S.W.2d 303 (Tex. 1987), cert. denied, 486 USS.

1026, 100 L. Ed. 2d 236, 108 S. Ct. 2005 (1988);

Lehndorff Geneva, Inc. v. Warren, 74 Wis. 2d 369, 246

N.W.2d 815 (1976). The Georgia Supreme Court’s de-

cision simply cannot be reconciled with the decisions

above.

When Georgia created a distinction between Canadians

and other nonresident aliens within its Workers’ Compen-

sation Act, it challenged one of the most “common

idea[s] of equality that [span] the political philosophy of

[both] East and West.” Paul Savoy, The Spiritual Nature

of Equality: Natural Principles of Constitutional Law, 28

How. L.J. 809, 836-37 (1985).° As Professors Tuss-

man & tenBroek stated:

The Constitution does not require that things dif-

ferent in fact be treated in law as though they were

the same. But it does require, in its concern for

equality, that those who are similarly situated be

treated similarly.

Joseph Tussman & Jacobs tenBroek, The Equal Pro-

tection of the Laws, 37 Cal. L. Rev. 341 (1949). This

is the concept of “equality” that was understood by the

drafters of the Fourteenth Amendment.’ And _ indeed,

® See also Aristotle, Ethica Nicomachea V.3.1131-1131b (W. Ross

trans. 1925) (“Equality in morals means this: things that are alike

should be treated alike, while things that are unlike should be

treated unlike in proportion to their unlikeness.”); Aristotle,

Metaphysicai 5.1055b-1056b (W. Ross trans. 2d ed. 1928); W.

Hardie, Aristotle’s Ethical Theory 189 (2d ed. 1980); H. Kelsen,

Aristotle’s Doctrine of Justice in What Is Justice? 110, 127-28

(1957): K. Mare-Wogau, Aristotle’s Theory of Corrective Justice

and Reciprocity in Philosophical Essays 21 (1967); Sri Aurob-

bindo, The Human Cycle 197 (A. Ghose trans. 1971).

7 Cong. Globe, 39th Cong., Ist Sess. 342-43 (1866).

members of this Court, whose views are otherwise as di-

verse as former Justice Brennan,” and Justices Black-

mum” and Rehnquist,’” agree that those who are sim-

ilarly situated should be treated similarly. Since 1885,

this Court has established this standard as a part of

equal protection jurisprudence. See Barbier v. Connolly,

113 U.S. 27, 28 L. Ed. 923, 5 S. Ct. 357 (1884); In re

Alien Children Educ. Litig., 501 F. Supp. 544, 556 (S.D.

Tex. 1980), aff'd sub nom. Plyler v. Doe, 457 U.S. 202,

72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). The ques-

tion presented by both the Georgia Supreme Court’s de-

cision and Georgia’s workers’ compensation classification

is simply whether a state government can legitimately dis-

criminate between similarly situated individuals on the

basis of alienage and national origin.”

This case does not compare United States citizens

to nonresident aliens, United States citizens to resident

aliens, nor resident aliens to nonresident aliens in the

United States. Moreover, Amici do not attempt to con-

vince the Court that nonresident aliens have the full com-

plement of constitutional rights possessed by either resi-

dent aliens or United States citizens.”

8 Plyler v. Doe, 457 U.S. 202, 216, 72 L. Ed. 2d 786, 102 S. Ct.

2382 (1982) (per Brennan, J.) (quoting F.S. Royster Guano Co.

v. Virginia, 253 U.S. 412, 64 L. Ed. 989, 40 S. Ct. 560 (1920));

Frontiero v. Richardson, 411 U.S. 677, 683, 36 L. Ed. 2d 583, 93

S. Ct. 1764 (1973) (per Brennan, J.).

® Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 57 L. Ed. 2d

750, 98 S. Ct. 2733 (1978) (concurring and dissenting opinion).

10 Rostker v. Goldberg, 453 U.S. 57, 64, 69 L. Ed. 2d 478, 101

S. Ct. 2646 (1981) (per Rehnquist, J.).

11 The Georgia statute discriminates both on the basis of alienage

and national origin. The statute draws its initial distinction be-

tween nonresident aliens on one hand and resident aliens and

United States citizens on the other. The statute then further distin-

guishes on the grounds of national origin to favor Canadian non-

resident aliens over those of every other nationality.

12 The equal protection questions presented to the Court to date

deal primarily with the issue of resident aliens. Cabell v. Chavez-

Salido, 454 U.S. 432, 70 L. Ed. 2d 677, 102 S. Ct. 735 (1982) ; Hamp-

———————————

Here Georgia, by granting benefits to nonresident aliens,

discriminates against a sub-class of these aliens on the

basis of national origin by treating those residing in Can-

ada and Canadian citizens more favorably than all others.

When a State grants benefits, however, it cannot constitu-

tionally distribute those benefits in an impermissible dis-

criminatory manner.’ Indeed, here the Georgia Supreme

Court admits that the workers compensation statute is

discriminatory.

Georgia’s statute works an invidious distinction, the

nature and intent of which is best illustrated by the his-

torical context in which the law was enacted. Georgia's

Workers’ Compensation Act, including its alien-dependent

exclusion provision, was adopted in 1920 during the

movement for the institution of compulsory industrial ac-

cident insurance that swept the country from 1909 to

1920. 1920 Ga. Laws 814: Arthur Larson, The Law of

Workmen's Compensation §§ 5.20, 5.30 (1952 & Supp.

1993). Indeed, one of the most prominent features of

our national lore is the great influx of immigrants be-

tween the 1880s and the early 1920s. Less celebrated is

the nativist, anti-immigrant backlash that accompanied

this phenomenon and eventually succeeded in radically

altering our national immigration policy.”

ton v. Mow Sun Wong, 426 U.S. 88, 48 L. Ed. 2d 495, 96 S. Ct. 1895

(1976): Sugarman v. Dougall, 413 U.S. 634, 87 L. Ed. 2d 853,

93 S. Ct. 2842 (1973): Graham v. Richardson, 403 U.S. 365, 29

L. Ed. 2d 534, 91 S. Ct. 1848 (1971); Takahashi v. Fish & Game

Comm'n, 334 U.S. 410, 92 L. Ed. 1478, 68 S. Ct. 1188 (1948);

Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064

(1886).

13 Hooper v. Bemalillo County Assessor, 472 U.S. 612, 86 L. Ed. 2d

487, 105 S. Ct. 2862 (1985) (exploring tax exemption for Vietnam

veterans residing in the state before a certain date); Zobel v.

Williams, 457 U.S. 55, 72 L. Ed. 2d 672, 102 S. Ct. 2809 (1982)

(discussing Alaskan residents’ distribution plan); Town of Ball v.

Rapides Parish Police Jury, 746 F.2d 1049 (5th Cir. 1984) (review-

ing state’s expenditures of tax dollars).

14 While the Chinese Exclusion Act of 1882 was the first signifi-

cant inhibition of free immigration to the United States, the cam-

This nativist movement was animated by three funda-

mental principles: the racial superiority of Anglo-Saxons;

bias against Roman Catholics; and hostility to foreign

“radicals.” John Higham, Strangers in the Land 158-334

(1967). Each of these prejudices disfavored immigrants

from largely Catholic Mexico, especially when it is ob-

served that this period also witnessed the Mexican Revolu-

tion from 1909 to 1920, the consequent increase in im-

migration from Mexico, and Mexico's association in the

mind of the United States with Germany and the Central

Powers during World War I. Roger Daniels, Coming to

America 307, 333 (1990); Paul Enrlich, The Golden

Door 129-135 (1979); Ricardo Romo, East Los Angeles:

History of a Barrio 91-110 (1983). This anti-immigrant

movement, while national in its reach, found particular

fervor in the Southern and Western states, and it is per-

haps not surprising in view of the statute at issue here,

that the Ku Klux Klan was reborn in Georgia in 1915

and flourished in 1920 with Klan leaders pointing to for-

eign immigrants as one of the chief evils to be opposed.

Higham, Strangers at 286-99.

When viewed in the context in which it was adopted, the

Statute is a vestige of the nativist sentiment infecting public

policy at the time of its adoption. This Court has re-

peatedly confronted and consistently invalidated such state

laws, and should not tolerate Georgia’s Workers’ Com-

pensation law at all. E.g., Yick Wo v. Hopkins, 118 US.

356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886): Truax vy.

Raich, 239 U.S. 33, 60 L. Ed. 131, 36 S. Ct. 7 (1915):

Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 92

L. Ed. 1478, 68 S. Ct. 1138 (1948); Graham vy. Rich-

ardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848

(1971).

In the opinion of the Georgia Supreme Court, nonresi-

dent aliens do not possess Fourteenth Amendment rights

paign to restrict immigration reached its zenith and was perhaps

the principal political crusade during the first two decades of the

1900s. See Roger Daniels, Coming to America 246, 365-384 (1990) ;

John Higham, Strangers in the Land 158-384 (1967).

because they are not “within its jurisdiction,” and cannot

be considered a part of the community of individuals that

are entitled to constitutional protection. Barge-Wagener

Const. Co. v. Morales, 263 Ga. 190, 429 §.E.2d at 673.

This conclusion, which is devoid of any analytical frame-

work, is based upon a fundamental misconception as to

the proper criteria for determining the application of the

equal protection clause particularly to nonresident aliens.

But see United States v. Verdugo-Urquidez, 494 U.S. 259,

108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990); Johnson

v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255, 70 S. Ct.

936 (1950) (analyzing application of Constitution to

nonresident aliens when acts occurred outside of United

States).

The Georgia Supreme Court’s holding that nonresident

aliens do not possess Fourteenth Amendment rights limits

the phrase “within its jurisdiction” to include only those

nonresident aliens that are within Georgia’s physical terri-

tory.” The court below failed to consider this Court's in-

terpretation in Plyler v. Doe, 457 U.S. 202, 214, 72 L.

Ed. 786, 102 S. Ct. 2382 (1982), that the equal protec-

tion clause applies “to all within a State’s boundaries, and

to all upon whom the State would impose the obligations

of its laws.” ** By making workers’ compensation the ex-

15 The legislative history of the equal protection clause provides

almost no assistance determining the extent and meaning of this

phrase. The drafting committee, as a result of deliberating in

secret, never cited the purposes of the statement. The floor debates

concentrated on the terms for readmission of the southern states

and spent little time discussing the equal protection clause. For the

most part the discussions focused almost entirely on race. See, e..,

Cong. Globe, 39th Cong., Ist Sess. 342-43 (1866) (remarks of Sen.

Howard) ; see also Frank & Munro, The Original l/nderstanding of

“Equal Protection of the Laws,” 50 Colum. L. Rev. 131 (1950);

Fairman, Does the Fourteenth Amendment Incorporate the Bill of

Rights?: The Original Understanding?, 2 Stan. L. Rev. 5 (1949).

16 An additional analysis applicable to this case is to look at the

connections between the nonresident alien and the United States

or a smaller community therein. See Symposium, Due Process and

Membership in National Community: Political Asylum and Beyond,

44 U. Pitt. L. Rev. 165 (1983) (recognizing that equal protection

a ee |

clusive remedy in a work-related death and limiting any

recovery to $1,000.00, Georgia has under the color of

authority punitively affected the rights of al) nonresident

aliens except for Canadian citizens or residents, thereby

bringing them within Georgia’s jurisdiction.

The Georgia Supreme Court's minimalist interpretation

also flies in the face of evolving equal protection juris-

prudence. Alegria v. United States, 945 F.2d 1523

(lith Cir. 1991); Lindholm yv. United States, 808 F.

Supp. 7 (D.D.C. 1992); Stebco, Inc. v. United States,

733 F. Supp. 1387 (S.D. Cal.), appeal dismissed, 939

F.2d 686 (9th Cir. 1990); Garzon v. United States, 605

F, Supp. 738 (S.D. Fla. 1985).'" As earlier stated, even

the state Supreme Court in both Wisconsin and Texas

have read the United States constitution to extend equal

protection to nonresident aliens. See, e.g., Alexander

Ranch, Inc. v. Central Appraisal Dist. of Erath County,

733 S.W.2d 303 (Tex. 1987), cert. denied, 486 U.S.

1026, 100 L. Ed. 2d 236, 108 S. Ct. 2005 (1988); Lehn-

dorff Geneva, Inc. v. Warren, 74 Wis. 2d 369, 246 N.W.2d

815 (1976). Indeed, this Court on one occasion found

it appropriate to resolve the dispute over discriminatory

taxation statutes in favor of a nonresident alien, although

the Court did not discuss the nonresident status of the

taxpayer. Hillsborough Township v. Cromwell, 326 U.S.

620, 90 L. Ed. 358, 66 S. Ct. 445 (1946).

In addition to discriminating on the grounds of alien-

age, the Georgia statute created a distinction based upon

rights are often determined by community ties experienced between

alien and United States); Symposium, Aliens, Due Process and

“Community Ties”: A Response to Martin, 44 U. Pitt. L. Rev. 237

(1983) (exploring and challenging Martin’s ideas).

17In each of these cases, the lower federal court has recognized

that the denial of an appropriate forum to challenge a tax jeopardy

assessment would constitute an infringement of the “due process”

and “equal protection rights” of nonresident aliens. Alegria v.

United States, 945 F.2d at 1527-28 (11th Cir. 1991); Lindholm v.

United States, 808 F. Supp. at 9 (D.D.C. 1992); Stebeo, Inc. v.

United States, 733 F. Supp. at 1390 (S.D. Cal. 1990) ; Garzon v,

United States, 605 F. Supp. at 745 (S.D. Fla. 1985).

national origin." Ga. Code Ann. § 34-9-265(b)(5)

(Michie 1993). National origin as well as alienage is a

suspect classification and therefore enjoy the “heightened

judicial solicitude” of a suspect class. Graham v. Rich-

ardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848

(1971); Tayyari v. New Mexico State Univ., 495 F. Supp.

1365 (D.N.M. 1980). Justice Rehnquist recognized in a

dissenting opinion that a “state statute that classifies aliens

on the basis of country of origin is much more likely to

classify on the basis of race, and thus conflict with the

core purpose of the Equal Protection Clause, than a stat-

ute that . .. merely distinguishes between alienage as such

and citizenship as such.” Sugarman vy. Dougall, 413 U.S.

634, 655, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973) (dis-

senting opinion). This Court has firmly established that

alienage and national crigin are suspect classification.

In Plyler v. Doe, 457 U.S. 202, 72 L. Ed. 2d 786, 102

S. Ct. 2382 (1982), this Court further held that illegal

alien children do not constitute a suspect class nor war-

rant strict scrutiny. In considering the applicability of

these decisions to nonresident aliens, two points emerge.

The first is that these cases deal only with resident aliens,

and second, the question of whether nonresident aliens

constitute a suspect class has not been decided by this

Court. In Lehndorff Geneva, Inc. v. Warren, 74 Wis. 2d

369, 246 N.W.2d 815 (1976), and Alexander Ranch

Inc. v. Central Appraisal Dist. of Erath County, 733

S.W.2d 303 (Tex. 1987), cert. denied, 486 U.S. 1026,

100 L. Ed. 2d 236, 108 S. Ct 2005 (1988), both state

Supreme Courts applied the rational basis standard to

nonresident aliens. In Sailer v. Tonkin, 356 F. Supp. 72

(V.I. 1973), however, the federal court did use strict

18 Discrimination on the basis of national origin was scrutinized -

by the Court in Korematsu v. United States, 323 U.S. 214, 89 L. Ed.

194, 65 S. Ct. 193 (1944), where the Court examined statutory

distinctions based upon a person’s ancestry and descent. As an

example of national origin, in Korematsu, the petitioner was an

American citizen of Japanese descent.

Scrutiny to invalidate a nonresident alien classification.’

Whatever level of scrutiny this Court decides to apply, the

Georgia Workers’ Compensation Act cannot withstand

that judicial scrutiny.

Ill. THE DECISION BELOW PRESENTS AN IMPOR-

TANT QUESTION CONCERNING THE CONSTITU-

TIONALITY OF A STATE’S WORKERS’ COMPEN-

SATION ACT WHICH, BY MAKING DISTINCTIONS

BASED UPON ALIENAGE AND NATIONAL ORI-

GIN, INSERTS THAT STATE INTO THE SPHERE

OF FOREIGN AFFAIRS THAT IS EXCLUSIVE TO

THE FEDERAL GOVERNMENT

This Court, for over a considerable number of years, has

not confronted the exclusivity of the federal government’s

power in the field of foreign affairs. See Zschernig v.

Miller, 389 U.S. 429, 19 L. Ed. 2d 683, 88 S. Ct. 664

(1968); Clark v. Allen, 331 U.S. 503. 91 L. Ed. 1633,

67 S. Ct. 1431 (1947). In Georgia, this void has per-

mitted a statute that has a persistent and subtle effect on

foreign relations. Out of all the countries of the world.

Georgia has decided that only Canadian citizens or other

residents of Canada are deserving of equal treatment with

United States citizens or residents. Whether Ms. Morales

and her children lived in Great Britain, Japan, Germany,

or in any of the Latin American countries, it would make

no difference. On the other hand, had Ms. Morales re-

sided in Canada, she would receive the same benefits as a

United States citizen would under the statute. Allowing

the Georgia Workers’ Compensation Act to stand would

establish a dangerous precedent in that nothing would pre-

vent each state in the Union from selecting a different

nation to receive such special treatment.”

1? The federal district court did not, however, analyze the dis-

tinctions between resident and nonresident aliens. Essentially the

court held that the portion of the Virgin Islands Criminal Com-

pensation Act which denied compensation to a nonresident alien

visitor to the territory did not meet the compelling state interest

necessary for a suspect class.

*° For example, if the statute is allowed to stand, perhaps states

in the Southwest will prefer to extend this special status to Mexico.

~ Perhaps states in the Northwest will prefer to confer this special

The United States Constitution reserves the field of

foreign affairs exclusively for the federal government.

Hines v. Davidowitz, 312 U.S. 52, 63, 85 L. Ed. 581, 61

S. Ct. 399 (1941) (concluding that “our system of govern-

ment is such that the interest of the cities, counties, states,

no less than-the interests of the people of the whole na-

tion. imperatively requires that the federal power in the

field affecting foreign relations be left entirely free from

local interference”); see also Chae Chan Ping v. United

States (“Chinese Exclusion Case”), 130 U.S. 581, 606,

32 L. Ed. 1068, 9 S. Ct. 623 (1888). This principle ema-

nates from several provisions of the United States Con-

stitution. Illustrative of this principle is the President’s and

the Senate’s powers to make treaties; * the President’s and

the Congress’ powers to make war; and the prohibition

on states to enter into a compact with foreign govern-

ments.~’ James Madison eloquently summarized with pen-

etrating insight this concept when he said in The Federalist

No. 42 (James Madison) that, “if we are to be one nation

in any respect, it clearly ought to be in respect to other

nations.” In sum, individual states may not intrude into

the exclusive federal sphere of foreign affairs.

This Court in Zschernig v. Miller, 389 U.S. 429, 19

L. Ed. 2d 683, 88 S. Ct. 664 (1968). struck down an

Oregon statute that nrohibited nonresident aliens from

receiving property through the Oregon probate courts un-

less certain conditions were satisfied. 389 U.S. at 430-

31. This Court found that such a statute had “led into

benefit on Canada. Perhaps cities containing a large Jewish popu-

lation will prefer Israel in some fashion. It is precisely this type

of state preference for a particular foreign nation that the United

States Constitution prohibits.

21U.S. Const. art. I, § 2, cl. 2.

22U.S. Const. art. II, § 2, cl. 1; U.S. Const. I, §8, cl. 11; US.

Const. art. I, § 8, cl. 12.

23 U.S. Const. art. I, § 10, cl. 3.

24 First, Oregon required that the country in which the bene-

ficiary resided maintain a reciprocal right for United States citizens

to receive property. Second, Oregon insisted that the foreign

sienna ieee

minute inquiries concerning the actual administration of

foreign law, into the credibility of foreign diplomatic

statements, and into speculation” on whether nonresident

aliens actually received the benefits of the property or

money. 389 U.S. at 435. Moreover, this Court observed

that such a statute, which allows for such inquiry, could

lead to inflammatory statements by state court judges re-

garding the Soviet block countries and therefore could

affect foreign affairs. 389 U.S. at 438, n.8. Consequently,

this Court concluded that the Oregon statute unconstitu-

tionally encroached into foreign affairs because it made

“unavoidable judicial criticism of nations established on a

more authoritarian basis than our own” and “affect[ed]

international relations in a persistent and subtle way.” 389

U.S. at 440.

Some courts have interpreted Zschernig as only stating

that “judicial criticism of foreign governments is, then,

constitutionally impermissible.” Shames v. Nebraska, 323

F. Supp. 1321, 1322 (D. Neb. 1971), aff'd 408 U.S. 301,

33 L. Ed. 2d 321, 92 S. Ct. 2478 (1972). See Hines vy.

Davidowitz, 312 U.S. 52, 85 L. Ed. 2d 581. 61 S. 2.

399 (1941). The proper distinction, however, is between

federal and the state legislature. See Kevin P. Lewis,

Dealing with South Africa: The C onstitutionality of State

and Local Divestment Legislation, 61 Tul. L. Rev. 469

(1987).

The Georgia statute is more like the Statute in

Zschernig, and much different from the Statute that was

the subject of this Court's inquiry in Clark v. Allen, 331

U.S. 503, 91 L. Ed. 1633. 67 S. Ct. 1431 (1947). In

Clark, this Court sustained the California statute because

its effect on other countries was incidental or indirect.

What offended this Court in Zschernig, however, was that

country allow United States citizens to receive funds from estates

in that country. Third, a foreign resident had to establish that he

would receive the benefit of money or property from the estate of or

persons dying in Oregon “without confiscation, in whole or in part,”

by his government. /d. at 439, n.1, citing Or. Rev. Stat. § 111.070

(1957).

the structure of the statute facilitated, in that instance

through the judiciary, the state’s insertion into the exclu-

sive province of the federal government to conduct foreign

affairs. The Georgia statute is strikingly similar but with

a slight twist. The statute is not structured to allow the

judiciary to make an assessment of foreign policy before

passing on the quality of rights to be extended to the

nonresident alien. Instead, by discriminating on the basis

of national origin and alienage. Georgia has codified its

criticism of all other nations and perforce has injected

itself into the field of foreign affairs. As a consequence,

the Georgia courts are forced to relegate all nationalities

except for Canadians to second class status. This directly

offends this Court’s holding in Zschernig.

It is not the judicial nature of the criticism, but

that a statute, such as the Georgia Workers’ Compen-

sation Act, facilitates criticism. Allowing a state to select

the citizens or residents of a nation for preferred status

no doubt is a form of criticism, expressed or not. of those

country’s citizens or residents who are not favored for

preferred status. The exercise of such powers cannot

only have a corrosive effect on the separation of powers

between the state and federal government in the area of

foreign affairs, but also in the United States’ relationships

with other foreign governments. It is difficult to imagine

that the Framers intended to preclude only state judicial

criticism of foreign governments by reserving the policy

of foreign affairs to the federal government. See The

Federalist No. 42 (James Madison). Foreign affairs is

exclusively a domain of the federal government.

Although the Georgia statute has been in effect for

over seventy years and, as a practical matter, may have

had little influence on foreign policy, this Court has held

that, when dealing with constitutional questions, what may

happen must be considered. See, e.g., Arizona v. Hicks,

480 U.S. 321, 325, 94 L. Ed. 2d 347, 107 S. Ct. 1149

(1987). Furthermore, we must remember that “[e]xperi-

ence has shown that international controversies of the

gravest moment, sometimes even leading to war, may

arise from real or imagined wrongs to another subject’s

inflicted, or permitted by a government.” Hines v. Davido-

witz, 312 U.S. 52, 64, 85 L. Ed. 581, 61 S. Ct. 399

(1941). In the field of foreign affairs what is insignificant

today may be significant tomorrow.

Last, the Georgia Workers’ Compensation Act is at

the very least a compact with a foreign government, and,

therefore, violates the United States Constitution. One

cannot be constrained to the literal interpretation of “com-

pact.” See, e.g., Olmstead v. United States, 227 U.S. 438.

72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J., dis-

senting) (holding that “a principle to be vital must be

capable of wider application than the mischief which gave

it birth . . . in the application of Constitution, therefore,

our application cannot be only what has been but of what

may be”).

This Court has also never had the opportunity to de-

termine whether a state by virtue of its statutes enters

into a compact, as defined under Article I, Section 10,

Clause 3 of the United States Constitution, with a foreign

nation. As noted above, the Georgia statute benefits

the citizens of one country. Although Canada may not

have bargained for this advantage, the purpose of the

Compact Clause is to prevent states from differentiating

among foreign governments in this manner. Georgia has,

by virtue of its statute, decided to elevate Canada to a

special status among nations.

Fundamental to the concept of federalism is the separa-

tion of powers between the state and federal governm«nt.

Nowhere is this principle more basic to a national govern-

nent than in the field of foreign affairs. As Justice Suth-

erland stated in United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 316, 81 L. Ed. 255, 57 S. Ct. 216

(1936), “[e]ven before the Declaration [of Independence],

the colonies were united in foreign affairs.” Even though

Georgia’s Workers’ Compensation Act is subtle, it none-

theless is an intrusion into the federal government’s ex-

clusive domain over foreign affairs. Such a statute, which

arbitrarily selects a nation for favorable treatment to the

exclusion of all others, without at a minimum consulting

with the federal government is perilous. Unless reversed,

the Georgia Supreme Court decision iegitimizes an unlaw-

ful intrusion of the state into the ability of this nation to

speak with one voice in foreign affairs.

CONCLUSION

For the foregoing reasons, Amici pray that Petitioners

Writ of Certiorari to review the Judgment and Opinion

of the Supreme Court of Georgia in this case be granted.

Respectfully submitted,

EDUARDO PENA KOTELES ALEXANDER

National Legal Advisor Counsel of Record

LEAGUE OF UNITED LATIN NIHAR R. MOHANTY

AMERICAN CITIZENS ALEXANDER, GEBHARDT,

1314 19th Street, N.W. APONTE & MARKS

Washington, D.C. 20036 Lee Plaza—Suite 805

(202) 835-1555 8601 Georgia Avenue

ANTONIA HERNANDEZ Silver Spring, MD 20910

E. RICHARD LARSON (301) 589-2222

KEVIN G. BAKER FAX (301) 589-2523

MEXICAN AMERICAN Lic. RAMON XILOTL-RAMIREZ

LEGAL DEFENSE AND Consul General

EDUCATIONAL FUND EMBASSY OF MEXICO

634 South Spring Street 2827 16th Street, N.W.

11th Floor Washington, D.C. 20009

Los Angeles, CA 90014 (202) 736-1010

(213) 629-2512

Attorneys for Amici Curiae

October 18, 1993

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.