Governor declines to take position on employer sanctions proposition

  PHOENIX - Gov. Janet Napolitano refused Tuesday to urge voters to defeat a ballot proposition that would undermine key provisions of Arizona's employer sanctions law that she signed last year.
 
 "I don't take public positions on all initiatives,'' Napolitano said when asked about Proposition 202. The governor, who already is on record opposing several other measures on the Nov. 4 ballot, said she wants to "let voters make up their own minds'' on the measure.

  But the governor actually is interjecting herself a bit into the fight: She questioned the contention of foes that approval of the business-backed measure would render the state's 10-month-old law virtually useless.

  The governor's comments actually are a bit of a reversal of her position.

  Just one year ago, Napolitano said she had some concerns about the law. But she said the ability to change the law if there are problems made it superior to anything proposed for the ballot.

  By contrast, a 1998 constitutional amendment limits the ability of legislators to alter anything approved by voters. That means even if an initiative creates significant problems, the only way of making major alterations - or repealing it entirely - is to take it back to the ballot.

  "Having this done statutorily (by the Legislature) is the way to do it because then you can make changes,'' she said.

  Since that time, lawmakers have made several of the changes Napolitano sought. And a federal judge has rejected efforts to have the law declared invalid, a decision upheld by the 9th U.S. Circuit Court of Appeals.

  Napolitano's announcement Tuesday she would not urge voters to defeat the initiative drew a stinging rebuke from Rep. Russell Pearce, R-Mesa, the architect of the existing law. He called her decision not to take a position "very deceitful on her part.''

  The law Napolitano signed last year allows a judge to suspend any and all state business licenses and permits of any firm found guilty of knowingly hiring undocumented workers. A second offense within three years puts the company out of business.

  Proposition 202 contains the same penalties.

  But it would require prosecutors to prove that the owner or an officer of the company had "actual knowledge'' that a worker is here illegally. It would not be sufficient to show that an underling has deliberately hired the undocumented worker and the owner may have had reason to believe the person is illegal.

  It also would provide absolute immunity from prosecution to firms that either use the federal E-Verify system to check the legal status of new workers or simply comply with existing federal laws about checking the identity of new workers.

  That law requires only that employers attest on the I-9 form that an applicant "is eligible to work in the United States," and, if documents have been presented, that they have been examined and "appear to be genuine and relate to the individual."

  A federal judge hearing arguments about Arizona's law earlier this year questioned the worth of the I-9 process, saying documents workers now present to companies "are fraudulent.''

  But attorney Andrew Pacheco, chairman of the pro-202 group, said this is not a license for companies to accept bogus documents. He said the measure provides for prison terms for anyone who knowingly accepts a fake ID.

  Here, too, though, a prosecutor would have to show the person who accepted the false ID had actual knowledge that the person presenting the papers was not the person whose name was listed.

  Napolitano said none of these provisions in Proposition 202 would subvert the law.

  "I don't think it necessary would 'gut' it. It would change it.''

  And Napolitano, noting the lack of prosecutions under the law that took effect Jan. 1, said "it's hard to see what impact, if any, it's had so far.''

  Pacheco said Proposition 202 is needed because the existing law is overbroad.

  "It does not protect innocent jobs,'' he said. Pacheco said a firm could be shut down because of the decision of a lower-level worker.

  "It would have all the employees of a company, where one bad hiring decision is made, fired to punish one employer.''

  Proposition 202 also would override a provision in existing law that allows prosecutors to accept anonymous complaints. Pacheco said the current law allows union organizers, competitors or "radical environmentalists'' to harass a legitimate business.

  The 202 campaign is being financed so far largely by $573,830 from a group called Wake Up Arizona!, which is composed of the owners of various businesses and has been active in efforts to have the existing law declared unconstitutional. It is headed by Mac Magruder, who owns seven McDonald's franchises.