Wednesday, July 28, 2010

Inconsistencies Between Munley And Arizona Ruling

Today, an federal judge in Arizona granted a temporary injunction to the most controversial portions of the state of Arizona's new law aimed at illegal aliens.

In reading her decision a glaring inconsistency stood out when one compares it to Judge Munley's ruling in the Hazleton case.

a. Mandatory Immigration Status Determination Upon Arrest

The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”

Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.)5 Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.)

The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as dependent on one another. As initially written, the first sentence of Section 2(B) did not
contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly.

Here is what Judge Munley wrote in his Opinion concerning the first version of the Hazleton Ordinance.

C. Amendments to the Ordinance

On March 15, 2007, during this court’s trial of this matter, defendant
introduced Ordinance 2007-6, which has since become law in the city.
See Ordinance 2007-6 (Defense Ex. 251). This Ordinance Amended
Sections 4B(2) and 5(B)(2) of IIRA. Id. As originally written, “a complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity or race” would not be enforced. Ordinance 2006-18 at § 4B(2).

The 2007 amendment removed the words “solely or primarily” from these provisions, meaning that “a complaint which alleges a violation on the basis of national origin, ethnicity or race shall be deemed invalid and shall not be enforced.” Ordinance 2007-6. The amendment also altered Section 4.A of the Ordinance by adding the word “knowingly” to a provision prohibiting the recruitment and hiring of illegal aliens. Id.; see Ordinance 2006-18 at § 4.A (establishing that: “It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City.”). At the end of the hearing on the plaintiffs’ complaint, we asked the parties for briefs on the effect of this amendment on the instant litigation.

The parties agree that the court has jurisdiction to issue a decision
on the current version of the ordinance. Plaintiffs argue, however, that we should also rule on the version of the ordinance that existed until the March amendment. Defendant amended the ordinance, plaintiffs argue, to avoid having this court rule on the constitutionality of the ordinance as it then existed. That amendment did not come, plaintiffs insist, because
Defendant recognized that the previous version of the ordinance violated
the constitution, but simply to improve defendant’s litigation position.
Accordingly, the court could reasonably conclude that defendant will not
cease the illegal practice embodied in the earlier version of the ordinance.

The dispute between the parties here is over whether we should also
consider the version of the ordinance that was in effect through most of the litigation in this matter. We find that we do not have jurisdiction to rule on the constitutionality of a version of an ordinance that no longer exists, particularly when we have–as both sides admit–jurisdiction to examine the current version of that ordinance.

In one case Judge Susan R. Bolton considers information in a prior version to rule on the present version and in Munley's case he refuses to rule on an earlier version thereby basing his decision on the latest version. Go figure.

What amazes me in both rulings is that each judge surmised legislative intent without any testimony from either legislature representatives. I guess Johnny Carson's Amazing Kreskin still lives on.

In the Arizona case Bolton wrote this statement in her Opinion. "The Court cannot interpret this provision as Arizona suggests." Your honor, no disrespect but the State is telling you what its intent was and you chose to disagree. Is that within your judicial powers?

In Hazleton's case Judge Munley takes until page 90 of his 206 page decision to finally get to the "Federal Constitutional Issues".  He writes from page 13 until 90 on preliminary issues like the rights of John and Jane Doe. 

Didn't Jill Moran take a hit back in 2009 for putting the "John Doe" name to Robert Powell's IRS lien filing? Here's what Jennifer Learn-Andes wrote in her article on January 20, 2009.

Experts said her action was illegal. Federal officials were looking into the matter, but it's unclear if any official action was taken against Moran. Moran later put the lien under Powell's name in the office database.

Heck you can't even hunt a John Doe during buck season.

And those who oppose Lou Barletta feel he is trampling on the rights of illegal aliens? Go figure.

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