Zera's Blog

A Citizen's View from Main Street

The overlooked part of AZ-SB1070

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:

  1. 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.
  2. 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.

  3. 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.

This overrides:

“A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except as authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or the person is eligible for release pursuant to section 41-1604.07.”

No mercy for humanitarian reasons. No early release. Well, almost none. They added a reference to 31-233, which says:

A. The director may authorize the temporary removal under custody from prison or any other institution for the detention of adults under the jurisdiction of the department of any inmate for the purpose of employing the inmate in any work directly connected with the administration, management or maintenance of the prison or institution in which the inmate is confined, for purposes of cooperating voluntarily in medical research that cannot be performed at the prison or institution, or for participating in community action activities directed toward delinquency prevention and community betterment programs. The removal shall not be for a period longer than one day.

B. Under specific rules established by the director for the selection of inmates, the director may also authorize furlough, temporary removal or temporary release of any inmate for compassionate leave, for the purpose of furnishing to the inmate medical treatment not available at the prison or institution, for purposes preparatory to a return to the community within ninety days of the inmate’s release date or for disaster aid, including local mutual aid and state emergencies. When an inmate is temporarily removed or temporarily released for a purpose preparatory to return to the community or for compassionate leave, the director may require the inmate to reimburse the state, in whole or part, for expenses incurred by the state in connection with the inmate’s temporary removal or release.

The old “chain gang” / “lab rat” / “pay-for-play compassion” clause.

After December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program and shall keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer.

(Changes to existing law are underlined)

What they did here was add a requirement that covers behavior predating the law.

An ex post facto law (from the Latin for “from after the action”) or retroactive law is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law.

But wait a minute…

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
U.S. Const. Art. I, sec. 9, cl 1

Oops, no can do.

No bill of attainder, ex-post-facto law, or law impairing the obligation of a contract, shall ever be enacted.
AZ Const. Art 2, sec 25

Really. Seriously. No can do! What’s the plural of “unconstitutional”?

Would it have hurt them to add a little clarification?

What else have we got here?

The attorney general shall prescribe a complaint form for a person to allege a violation of subsection A of this section. The complainant shall not be required to list the complainant’s social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly employs an unauthorized alien, the attorney general or county attorney shall investigate whether the employer has violated subsection A of this section. If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or county attorney may investigate whether the employer has violated subsection A of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form.

This wasn’t part of SB1070, but it is part of the code that SB1070 changed. Anonymous complaints against a business. Can anyone say “recipe for harassment”?

A person who knowingly files a false and frivolous complaint under this subsection is guilty of a class 3 misdemeanor.

Unless they file that complaint anonymously…in which case the investigating authorities (taxpayers) and the business would have to eat the expenses.

23-212.01 is identical to 23-212 except for replacing “knowingly employing unauthorized aliens” with “intentionally employing unauthorized aliens” in the subsection title.

It is an affirmative defense to a violation of subsection a of this section that the employer was entrapped. To claim entrapment, the employer must admit by the employer’s testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:

  1. The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.
  2. The law enforcement officers or their agents urged and induced the employer to commit the violation.
  3. The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.


You have to confess to the crime before you can claim entrapment. After that, there is a steep burden of proof – with the entrapping party likely holding all the evidence.

It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity.

Really? Using a ruse to trick someone is not “entrapment”?

You don’t even have to read between the lines to find problems with this law. No wonder republicans across the country praise it and want to duplicate it.

June 28, 2012 - Posted by | Legislation, Strangelove | , , ,

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