Senator resurrects part of Arizona's SB 1070 that judge ordered state not to enforce

PHOENIX — Legislation approved Thursday by a Senate panel could result in the federal government once again suing Arizona over its laws dealing with illegal immigration.

Without comment, the Judiciary Committee voted to make it a felony to transport or harbor someone not in this country legally. Senate Bill 1379 also would impose the same penalty on those who “encourage or induce” someone from another country to come here in violation of law.

The proposal by Sen. Wendy Rogers, R-Flagstaff, takes an existing law — a part of the state’s highly controversial SB 1070 — and increases the penalty.

But attorneys for the state signed a deal in 2014 with the U.S. Department of Justice agreeing not to enforce that law.

In exchange, federal attorneys said they would drop their legal challenge to the “papers, please” part of SB 1070, the 2010 law that sought to create new state laws to deter illegal immigration.

That deal was reduced to an order signed by U.S. District Judge Susan Bolton permanently enjoining enforcement of the law.

At a hearing Thursday, Rogers said she was simply trying to provide a new tool for border sheriffs like Mark Dannels of Cochise County to use against smugglers.

Rogers never mentioned the 2014 court order — or even indicated she was aware of it — as the Republican-dominated Judiciary Committee approved the measure on a 5-3 party line vote.

Sen. Martin Quezada, D-Glendale, who voted against SB 1379, told Capitol Media Services after Thursday’s hearing that the state is risking being dragged back into federal court over an issue that was settled years ago.

“This was an agreement that the state of Arizona made knowing that it would have been struck down anyway,” he said of the underlying law.

“The fact that we’re amending it and now we’re going to ask to enforce it, we’re putting ourselves right back into court,” Quezada said. “That’s all that this is doing, nothing more than that.”

Rogers did not return messages seeking comment.

She indicated during Thursday’s hearing she knows the U.S. Supreme Court ruled states cannot enforce federal laws. But Rogers did not address the fact that attorneys for the state signed the agreement, after the high court ruling, not to implement any law on transporting or harboring people not here legally.

Underlying law

SB 1070 was designed to give state and local police more power to detain those who are not in U.S. legally.

Many provisions were voided in a historic 2012 ruling by the U.S. Supreme Court.

The high court said the state cannot prosecute those seeking work in Arizona without being in this country legally and those failing to carry federally issued registration cards. It also ruled Arizona cannot allow warrantless arrests if there is “probable cause” a person committed an offense that makes them removable from the country under federal law. The justices said all three provisions illegally conflict with — and are preempted — by federal law.

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However, the court said there was nothing inherently wrong with SB 1070’s requirement for police to check the immigration status of those they have stopped. But they warned that the law could still be found unconstitutional if there was evidence people were being unfairly stopped or detained for long periods of time.

In 2014, however, the Department of Justice agreed to dismiss the federal government’s further challenges to that part of the law.

In exchange, then-Gov. Jan Brewer and then-Attorney General Tom Horne, both Republicans, agreed to a permanent injunction against the provisions of the law dealing with the transporting and harboring of those not here legally. U.S. District Court Judge Susan Bolton signed that as a court order.

A spokesman for Brewer said at the time that the state lost nothing in refusing to defend the harboring law, noting there already was a preliminary injunction against its enforcement.

Rogers ups the stakes

The law remained on the books, though — unenforceable and largely unnoticed — until Rogers picked it up and decided to resurrect it, complete with a new penalty of a felony instead of the original misdemeanor.

“It is obviously a clear violation of that agreement,” Quezada said of SB 1379.

Kim Quintero, who handles publicity for Senate Republicans, noted that all measures go to the Rules Committee, which is supposed to determine if proposals are constitutional before they go to the Senate floor for debate.

But it is up to lawmakers themselves — and not the attorneys providing the advice — to decide the issue. And there is a history of legislators ignoring what the lawyers tell them.

There was no immediate response from the Department of Justice about what action, if any, it will take if the Legislature approves the measure and tries to enforce it.

Quezada said it may be that SB 1379 is all about publicity. “This is a platform,” he said. “This is nothing more than Sen. Rogers getting up on her soap box and talking bad about aliens and immigrants. That’s all this is and nothing else.”

But Rogers, during committee discussion on the measure, said she was trying to help border sheriffs who need new tools.

“Arizona doesn’t have any actionable laws against human smuggling,” she said. That leaves law enforcement having to find some state laws that might fit, such as for traffic violations or trespassing, Rogers said.

Dannels, whom Rogers quoted during the hearing, told Capitol Media Services there is an impact from the lack of a specific state statute.

“We get 900 to 1,000 cars a month coming to Cochise County to pick up the illegals,” he said. “The only thing we have to address that is state violations for things like speeding, reckless driving, of course the pursuits, which are off the charts.”

The Republican sheriff said he was not really familiar with Rogers’ proposal. But he said he and other law enforcers are “looking for laws that can help us deter those that are trying to get involved in the smuggling aspect of this.”

“I’m not an immigration officer,” Dannels said. “But I am into the criminal aspect of it because it’s promoting negative consequences into our community, and those who are being exploited by the cartels.”