When the law first hit the news, I took a look at it to see just what was going on in it. What I found were a few things that never made it into the news.
No commercial value, I suppose.
There are what I consider to be serious flaws in the law that go beyond the partisan problems, though they are certainly partisan in origin. Flaws that are just plain bad law.
A person who is a legal resident of this state may bring an action in superior court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than one thousand dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.
Public employees and officials are given a degree of immunity (“Governmental Tort Immunity“) from prosecution so they can do their jobs in good faith without constantly worrying about lawsuits and liabilities. It protects the ability of government to function, and taxpayers from potentially large legal and penalty costs.
I see three problems with this section:
- This gives standing for unaffected third parties to sue “any official or agency of this state or a county, city, town or other political subdivision of this state”. It gives any angry vigilante the right to sue any political subdivision, whether he/she lives in the jurisdiction of that subdivision or not. Whether or not he/she is personally harmed or merely irritated.
- At a minimum, every lawsuit would cost the taxpayers in legal expenses. If convicted, the taxpayers would be on the hook for the civil penalties. Further, the penalties begin at the time of accusation, not conviction. This complicates things because there is no clear understanding of what might be penalized until and unless there is a conviction. By the nature of the law, this is more likely to be an error of omission rather than commission – which means that inaction, or insufficient action, is what would be penalized. How do you quantify an non-event?
A bill of attainder (also known as an act of attainder or writ of attainder) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.
Not quite, but not far off.
- Revoking governmental tort immunity cannot help but distort how governmental units function. The threat of potential lawsuits would require new and costly insurance. A case under this law could take months to litigate, even without appeals. It could financially ruin a small unit of government like a small town police department that can’t keep police on the streets in the first place, even if the lawsuit failed.
The costs may be recovered if the lawsuit fails:
The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a county, city, town or other political subdivision of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.
This has problems of its own:
a) The costs are up-front. A small unit of government could go bankrupt defending itself before it could recover the costs of a bad lawsuit.
b) Recovery depends on the ability of the accuser to pay. It could take months, years, or forever.
c) Recovery depends on “an adjudication on the merits”. That sounds to me like the taxpayers would eat the legal costs of cases resolved by negotiation or on technical grounds.
- 12-820.01. Absolute immunity
- 12-820.02. Qualified immunity
- 12-820.04. Punitive and exemplary damages; immunity