Arizona Law Could Prompt Flood of Court Cases

Wednesday, June 9, 2010

Page 6

IN MY OPINION (Column)

Arizona Law Could Prompt Flood of Court Cases

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

The city of Los Angeles must leave sex up to the state of California. That was the salutary teaching of In re Carol Lane (1962) 58 Cal.2d 99, on habeas corpus, which in 1961 held that the City of the Angels could not prosecute a prostitute for the violation of a city ordinance. That misconduct, the court stated, has been pre-empted by the state.

The question today is whether the enforcement of immigration laws has been pre-empted by the United States or whether Arizona’s law suffers from the same congenital defect which stymied the prosecution in Carol’s case, but did not help Divine Brown, who a few years later, did business with Hugh Grant at a street corner near Sunset Boulevard in Los Angeles.

The question today is whether enforcement of U.S. immigration laws, not the law itself, has been pre-empted. The simple answer is no. The Arizona statute complements and supplements U.S. law. Congress’ intent to exclusively rule on immigration has not been thwarted. Arizona’s statute is not inimical to the United States immigration laws.

The Arizona statute, signed and approved by Gov. Jan Brewer, obligates peace officers to check the documents of anyone who is believed to be in the country illegally provided there was a lawful stop. Hence, pre-emption is not in issue. The stop must be lawful. What may be in issue is the subjective belief of the peace officer that the detainee is here illegally. That alone raises issues of reasonable cause to believe, which have been litigated in thousands of search and seizure cases. The issues will be factual, not legal, and there could well be a flood of cases. It appears, therefore, that the statute is constitutional, but its enforceability is questionable.

It is likely that Arizona’s lawmakers never realized the four problems which the law created. These are the legal problems, the economic implications, the political issues and the social impact. Did anyone even imagine that this statute would draw the attention of the Mexican president in his address to the Congress, or the press conference of the U.S. president, or the actions of the Los Angeles and many other city councils? Truly, a can of worms has been opened.

The economic implications of the new Arizona law are perhaps the most weighty, but least ascertainable. If illegal immigration is indeed reduced, there will be a shortage of below minimum wage employees who perform work which native born Americans or legalized citizens will not do. There will be a lesser drain on hospitals, emergency facilities, the school system and the criminal justice system. These savings to the taxpayer are unascertainable and are the reasons Proposition 187 passed in California just a few years ago. To be considered is the boycott of Arizona goods and services decreed by the Los Angeles City Council, and finally the effect of removal or threat of removal of major sporting events such as the Super Bowl or the All-Star Game. The tourist industry will also suffer.

Mexican citizens who follow the advice of their president and hence do not visit Arizona may not be an insignificant factor. They contribute nearly $2.7 billion annually to Arizona’s tourist industry. Even Gov. Schwarzenegger, probably in jest, explained that he was fearful to travel to Arizona because he had an accent. It could well be that the overall effect in terms of economics is staggering, but not fully ascertainable.

The political effect is perhaps the most satisfying aspect to those citizens of Arizona who favored the new law. Gov. Brewer has never been more popular. Early indications show that statistic. The Pew Research Center and the Associated Press found that 59 percent of all adults favor the law. Some polls indicate national approval as high as 70 percent. All indications are that the law is popular with the electorate, both within and outside of Arizona.

That leaves the social problems encountered, and it questions the wisdom of the new statute. The overwhelming majority of illegal immigrants at whom this law is directed are not criminals. They just want a better life for themselves and their children. Racial profiling is not legitimized, but now very much enabled. It is doubtful whether the president of the Republic of Mexico or the members of the Los Angeles City Council truly understand the ramifications of the illegal immigration problems. Congress has not acted to reform it. It appears that flooding of the courts with search and seizure litigation may create more problems than it solves.