Court rules Sen. Russell Pearce can't present SB 1070 case
PHOENIX — The architect of Arizona's new immigration law won't get an active role in defending it in federal court.
In a brief note, the judges of the 9th Circuit Court of Appeals rejected arguments by Sen. Russell Pearce, R-Mesa, that he has a “unique perspective'' on SB 1070. Pearce, through his attorneys, said he wants a chance to convince the appellate judges that all provisions of the law are legal.
More immediately, Pearce wants to try to convince the appellate court that U.S. District Court Judge Susan Bolton was wrong when she enjoined the state from enforcing several key provisions of the law. And he said there is evidence that Gov. Jan Brewer, who is defending the law, does not share his belief that the statute, as enacted – and in its entirety – is legal.
Pearce will not be locked out of the case entirely, though: The judges said they would consider the arguments he submitted in legal papers, the same as they would from anyone else granted status to file “friend of the court'' briefs.
But he will not get to argue his case, either personally or through his attorneys, when the judges hear from other lawyers on Nov. 1.
That leaves only the U.S. Department of Justice and the state, represented by attorneys for Brewer, to present arguments.
The law is designed to give police more powers to detain and arrest illegal immigrants. But Bolton, acting on a request by the Obama administration, barred the state from enforcing several key provisions until there can be a full-blown trial on the merits.
These including requiring a police officer to make a reasonable attempt to check the immigration status of those they have stopped, forbidding police from releasing anyone they have arrested until that person's immigration status is determined and making it a violation of Arizona law for anyone not a citizen to fail to carry documentation.
Pearce, in his legal papers, said Bolton got it wrong when she concluded these provisions likely intrude on the exclusive right of the federal government to regulate immigration. He also said the judge erred in concluding that requiring police to inquire about the status of suspected illegal immigrants will put burdens on the federal government which maintains an online center for police to run such checks.
Much of what Pearce says is similar to what Brewer's attorneys argued unsuccessfully before Bolton and now are presenting to the appellate court. But Pearce's lawyers said he still has a role to play, saying his position is different than that of the governor.
He pointed out that Brewer said publicly after Bolton issued her ruling that perhaps SB 1070 should be modified to address the jude's concerns. And Brewer's legal team conceded in its appeal that one provision of the law “might well have been more artfully worded.''
“Sen. Pearce does not believe that SB 1070 should be or needs to be altered,'' his lawyers wrote. “Sen. Pearce is uniquely qualified to provide this interpretation of SB 1070 as its author and chief sponsor.''
Some of that relates to whether the provision requiring police to check the immigration status of anyone arrested also sweeps in those who are not actually handcuffed and taken to jail but also thousands who are simply cited at the scene and released.
At the July hearing, John Bouma, Brewer's lead counsel, tried to convince Bolton that lawmakers really meant it to apply only to those actually “booked.'' But the judge said that's not what the law said.
Pearce, however, said Bolton got it wrong, calling her “an activist judge looking for an appointment to the 9th Circuit.''
He will not be alone in filing an “amicus'' brief in support of the law. Many others have been granted similar permission permission to file ``amicus'' briefs, including Cochise County Sheriff Larry Dever, Maricopa County Sheriff Joe Arpaio, various members of Congress and attorneys representing several states.