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Case: 15-15211, 08/28/2015, ID: 9665368, DktEntry: 59-1, Page 1 of 5

Nos. 15-15211, 15-15213, 15-15215

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,

vs.

JOSEPH M. ARPAIO, et al.,

Plaintiff-Appellee,

Defendant-Appellants.

On Appeal from the United States District Court for the District of Arizona Case No. 2:14-CV-01356-DCG (PHX) Honorable David G. Campbell, District Court Judge

MOTION OF PROFESSORS DORIS MARIE PROVINE AND CECILIA MENJÍVAR FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFF-APPELLEES

WILLIAM L. THORPE SPENCER G. SCHARFF THORPE SHWER, P.C.

3200 North Central Avenue, Suite 1560 Phoenix, Arizona 85012-2441 Telephone: (602) 682-6100 Facsimile: (602) 682-6149 SScharff@thorpeshwer.com

Counsel for Amici Curiae Professors Doris Marie Provine and Cecilia Menjívar

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MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFF-APPELLEES

Amici

Curiae

Professors

Doris

Marie

Provine

and

Cecilia

Menjívar

respectfully move for leave to file the attached amici curiae brief in support of

Plaintiff-Appellees.

Amici have obtained consent of the attorneys for Plaintiff-

Appellees and Defendant-Appellant State of Arizona. Amici endeavored to obtain

consent of Defendant-Appellants Sheriff Arpaio, Maricopa County, and County

Attorney Montgomery for filing this amici brief, but their attorneys did not respond

to Amici’s request. See 9th Cir. R. 29-3.

The proposed Amici, Professors Doris Marie Provine and Cecilia Menjívar,

are professors with well-established reputations as experts in policies and practices

related to unauthorized immigrants and in the investigation of legislative intent.

Dr. Doris Marie Provine (J.D., Ph.D. Cornell) has written a well-received

book about Congressional intent in adopting various sentencing laws for violations

of

federal

drug

lawsUnequal

Under

Law:

Race

and

the

War

on

Drugs

(University of Chicago Press 2007).

Dr. Provine’s current research focuses on

policies affecting unauthorized immigrants, particularly in Arizona.

With two

major grants from the National Science Association, she and three co-authors have

written:

Policing

Immigrants:

Local

Law

Enforcement

on

the

Front

Lines

(University of Chicago Press, Forthcoming). Dr. Provine came to Arizona in 2001

from Syracuse University to direct the School of Justice Studies at Arizona State

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University.

She is currently professor emerita at Arizona State University and a

member of the board of the Arizona affiliate of the American Civil Liberties

Union, which serves as co-counsel to Plaintiff-Appellees.

Her co-authorship of

this brief, however, arises out of her expertise as a scholar of immigration and

legislative intent.

Dr. Menjívar (Ph.D. U.C. Davis) is a sociologist with expertise in how law

and policy can create adverse consequences for excluded groups. She has written

widely on the situation facing women immigrant communities living under threat

of deportation and guided many doctoral students in the study of immigration

policies and their consequences.

Recently, with Professor Daniel Kanstroom, she

edited

a

major

volume

on

immigration

and

law:

Constructing

Immigrant

“Illegality”: Critiques, Experiences, and Responses (Cambridge University Press

2014). Dr. Menjívar has received much recognition for her contributions, and has

successfully sought major funding for her research.

She recently accepted a

position as Foundation Distinguished Professor of Sociology at the University of

Kansas after a successful career at Arizona State University.

The

issues

raised

in

this

appeal

are

within

their

areas

of

expertise.

Defendant-Appellants claim that H.B. 2779 and H.B. 2745, the two Arizona

statutes that are the subject of this appeal, have no immigrant-related purpose. See

Opening Br. (Dkt. #28) at 14 (contending that the “Identity Theft Laws” are

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“unlike any of the previous statutes found to violate federal supremacy on

immigration” because the laws “include no reference to immigration.”).

It is,

however, important to place legislation in its historical, political, and social context

to properly analyze legislative purpose.

By

this

brief,

Amici

demonstrate

that

the

history

of

anti-immigrant

legislation preceding H.B. 2779 and H.B. 2745, as well as the sponsorship of these

two bills by a long-standing opponent of unauthorized immigration, reveal a

motive to make state-level immigration policy in an area preempted by federal law.

As experts in policies and practices related to unauthorized immigrants and in the

investigation of legislative intent, the Amici are uniquely positioned to offer insight

into the legislative purpose of H.B. 2779 and H.B. 2745.

The perspective of the

proposed Amici should therefore be valuable to the Court.

Amici respectfully request that this Court grant leave to file the brief

submitted concurrently with this motion.

DATED this 28th day of August, 2015.

THORPE SHWER, P.C.

By s/Spencer G. Scharff

William L. Thorpe Spencer G. Scharff Counsel for Amici Curiae

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CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2015, I electronically filed the foregoing

MOTION

OF

PROFESSORS

DORIS

MARIE

PROVINE

AND

CECILIA

MENJÍVAR FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF

PLAINTIFF-APPELLEES, with the Clerk of the Court for the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify

that all participants in the case are registered CM/ECF users and that service will

be accomplished by the appellate CM/ECF system.

Dated: August 28, 2015

8908773

By s/Spencer G. Scharff

William L. Thorpe Spencer G. Scharff Counsel for Amici Curiae

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Nos. 15-15211, 15-15213, 15-15215

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,

vs.

JOSEPH M. ARPAIO, et al.,

Plaintiff-Appellees,

Defendant-Appellants.

On Appeal from the United States District Court for the District of Arizona Case No. 2:14-CV-01356-DCG (PHX) Honorable David G. Campbell, District Court Judge

BRIEF OF AMICI CURIAE PROFESSORS DORIS MARIE PROVINE AND CECILIA MENJÍVAR IN SUPPORT OF PLAINTIFF-APPELLEES

WILLIAM L. THORPE SPENCER G. SCHARFF THORPE SHWER, P.C.

3200 North Central Avenue, Suite 1560 Phoenix, Arizona 85012-2441 Telephone: (602) 682-6100 Facsimile: (602) 682-6149 SScharff@thorpeshwer.com

Counsel for Amici Curiae Professors Doris Marie Provine and Cecilia Menjívar

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned states

that the amicus is not a corporation that issues stock or has a parent corporation

that issues stock.

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STATEMENT OF COMPLIANCE WITH RULE 29(C)(5)

This brief is submitted pursuant to Rule 29(a) of the Federal Rules of

Appellate Procedure.

Counsel for Amici Curiae and Counsel for Plaintiff-

Appellees consulted with each other in the drafting of this brief; however, no party

or party’s counsel contributed money that was intended to fund preparing or

submitting the brief; and no person other than the amicus curiae, its members, or

its counsel, contributed money that was intended to fund preparing or submitting

the brief.

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TABLE OF CONTENTS

INTEREST OF THE AMICI

1

SUMMARY OF THE ARGUMENT

4

ARGUMENT

6

I. H.B. 2779 and H.B. 2745 were part of a broader effort to enact state-level immigration

7

II. The strategy of “attrition through enforcement” that became the express immigration policy of the state of Arizona in 2010 was in place when H.B. 2779 and H.B. 2745 were

15

CONCLUSION

20

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Cases

TABLE OF AUTHORITIES

Arizona v. Inter Tribal Council of Ariz., Inc, 133 S. Ct. 2247 (2013)

17

Gonzalez v. Ariz., 677 F.3d 383 (9th Cir. 2012)

17

Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015)

20

Statutes and Rules

Arizona House Bill 2154 (1996)

16

Arizona House Bill 2243 (2003)

8

Arizona House Bill 2246 (2003)

8,

16

Arizona House Bill 2745 (2008)

Arizona House Bill 2779 (2007) (The Legal Arizona Workers Act)

2, 4, 5, 6, 7, 8, 12, 15, 16, 18, 19, 20

2, 4, 5, 6, 7, 8, 12, 15, 16, 18, 19, 20

Arizona Senate Bill 1070 (2010)

7, 14, 15

Proposition 100, Bailable Offenses (2006)

10

Proposition 102, Standing in Civil Actions (2006)

8,

11

Proposition 103, English as the Official Language

8,

10

Proposition 200, the Arizona Taxpayer and Citizen Protection Act

(2004)

Proposition 300, Public Programs Eligibility

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8, 9, 16, 17, 18

8, 10

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Other Authorities

Arizona School Boards Association, “Race, Ethnicity, Poverty Factor into the Resegregation of Arizona’s Schools,” September 15, 2014, AZEDNEWS, Accessed on 8/22/2015 at: http://azednews.com/2014/09/15/race-ethnicity- poverty-factor-into-the-re-segregation-of-arizonas-schools/ passim

Celeste

Gonzalez

de

Bustamante,

“Arizona

and

the

Making

of

a

State

of

- Immigration Realities, National Media, and Provincial Politics, eds. Otto

Global

Exclusion,

1912-2012,”

pp.

19

42,

in

Arizona

Firestorm:

Santa Ana and Celeste Gonzalez de Bustamante, Rowman & Littlefied,

2012……………………………………………………………………passim

Leo Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the Nation, Stanford University Press, 2008………………………………passim

Chandler Davidson, Tanya Dunlap, Gale Kenny, and Benjamin Wise, “Republican Ballot Security Programs: Vote Protection or Minority Vote Suppression - Or Both?,” A Report to the Center for Voting Rights and Protection, September 2004. Accessed on 8/22/2015 at: http://www.votelaw.com/blog/ blogdocs/GOP_Ballot_Security_Programs.pdf……………………….passim

Roxanne Doty, The Law into Their Own Hands: Immigration and the Politics of

Exceptionalism, University of Arizona Press, 2009…………………

passim

Jeremy Duda, “Ducey, Brnovich Propose $1 million for ‘Federalism Unit,” Capitol Times, February 9, 2015, Accessed on 8/20/2015 at:

http://www.highbeam.com/doc/1P2-37668000.html passim

Floyd Galloway, “Voting Rights in Arizona: Back to the Future,” New American Media, Nov. 4, 2014. Accessed on 8/10/2015 at:

http://newamericamedia.org/2014/11/voting-rights-in-arizona-back-to-the-

future.php …………………………………………………… ……passim

Rob E. Hanson, The Great Bisbee I.W.W. Deportation of July 12, 1917, Signature Press, 1989………………………………………………………….…passim

Julianne Hing, “Joe Arpaio Launches ‘Air Posse” to Hunt Immigrants at Border,” Colorlines News, March 30, 2011, Accessed on 8/22/2015 at:

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http://www.colorlines.com/articles/joe-arpaio-launches-air-posse-hunt-

immigrants-border

passim

Alex Johnson, “Pro-English measures being revived across U.S.: Congress, states consider new proposals to declare an ‘official language,” MSNBC, June 15, 2009, Accessed on 8/10/2015 at: http://www.nbcnews.com/id/31176525/

ns/us_news-life/t/pro-english-measures-being-revived-across-

us/#.VcaT7p1VhBc……………………………………………………passim

Cecilia Menjívar and Daniel Kanstroom (eds.) Constructing Immigrant

“Illegality”: Critiques, Experiences and Responses, Cambridge University

Press, 2014…………………………………………………

………. passim

Brian Montopoli, Where Did Jan Brewer’s Beheading Claim Come From?” CBS

at:

News,

http://www.cbsnews.com/news/where-did-jan-brewers-beheading-claim-

come-from/ …………………………………………………….……

July

9,

2010.

Accessed

on

8/10/2015

passim

Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and

Citizenship in the United States, Oxford University Press, 2006

passim

Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America,

passim

Princeton University Press, 2004……………………………………

Linda C. Noel, Debating American Identity: Southwestern Statehood and Mexican

Immigration, University of Arizona Press, 2014……………………

passim

Doris Marie Provine and Gabriella Sanchez, “Suspecting Immigrants: Exploring Links between Racialized Anxieties and Expanded Police Powers in Arizona,” pp. 116-127 in Stop and Search: Police Power in Global Context, Leanne Weber and Ben Bowling (eds.), Routledge, 2013………….… passim

Doris Marie Provine and Monica Varsanyi, “Immigration Federalism in the Shifting Political Sands of Two Neighboring States,” conference paper delivered at the 2015 annual meeting of the Law & Society Association,

Seattle, Washington, June, 2015……………………………………

passim

Alia Beard Rau, “The Fight over State’s Rights is Back on the Ballot,” October 20,

at:

2014,

Arizona

Republic,

Accessed

on

8/20/2015

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http://www.azcentral.com/story/news/arizona/politics/2014/10/20/federalism

passim

-state-rights-ballot/17596035/

Ted Robbins, “The Man Behind Arizona’s Toughest Immigration Laws,” National Public Radio, March 12, 2008, accessed on 8/10/2015 at:

http://www.npr.org/templates/story/story.php?storyId=88125098 passim

Marc R. Rosenblum and Leo B. Gorman, The Public Policy Implications of State- Level Worksite Migration Enforcement: The Experiences of Arizona, Mississippi, and Illinois, pp. 115 - 134 in Monica W. Varsanyi (ed.), Taking Local Control: Immigration Policy Activism in U.S. Cities and States, Stanford University Press, 2010……………………………………… 1920

Kyrsten Sinema, No Surprises: The Evolution of Anti-Immigration Legislation in Arizona, pp. 62-88 in Charis E. Kubrin, Marjorie S. Zatz, and Ramiro Martínez (eds.), Punishing Immigrants: Policy, Politics, and Injustice, New

York University Press, 2012………………………………………

7–16, 18

Zachary Alden Smith, Politics and Public Policy in Arizona, (3 rd edn.), Praeger,

……… passim

2002…………………………………………………………

Monica W. Varsanyi, Immigration Policy Activism in the U.S, States and Cities:

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Interdisciplinary Perspectives, pp. 1 - 30 in Monica W. Varsanyi (ed.), Taking Local Control: Immigration Policy Activism in U.S. Cities and

States, Stanford University Press, 2010………………………

passim

……

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INTEREST OF THE AMICI AND CONSENT TO FILE

Professors Doris Marie Provine and Cecilia Menjívar submit this amicus

brief in support of Appelleesargument that the purpose and effect of the

challenged provisions in this case was to regulate immigration at the state level by

criminalizing fraud in the federal employment verification system. The professors

are experts in policies and practices related to unauthorized immigrants and in the

investigation of legislative intent.

Dr. Doris Marie Provine (J.D., Ph.D., Cornell) has written a well-received

book about Congressional intent in adopting various sentencing laws for violations

of

federal

drug

lawsUnequal

Under

Law:

Race

and

the

War

on

Drugs

(University of Chicago Press 2007).

Dr. Provine’s current research focuses on

policies affecting unauthorized immigrants, particularly in Arizona.

With two

major grants from the National Science Association, she and three co-authors have

written:

Policing

Immigrants:

Local

Law

Enforcement

on

the

Front

Lines

(University of Chicago Press, Forthcoming). Dr. Provine came to Arizona in 2001

from Syracuse University to direct the School of Justice Studies at Arizona State

University.

She is currently professor emerita at Arizona State University and a

member of the board of the Arizona affiliate of the American Civil Liberties

Union, which serves as co-counsel to Plaintiff-Appellees.

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Her co-authorship of

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this brief, however, arises out of her expertise as a scholar of immigration and

legislative intent.

Dr. Menjívar (Ph.D., U.C. Davis) is a sociologist with expertise in how law

and policy can create adverse consequences for excluded groups. She has written

widely on the challenges faced by women immigrants living under threat of

deportation, and she has guided many doctoral students in the study of immigration

policies and their consequences.

Recently, with Professor Daniel Kanstroom, she

edited

a

major

volume

on

immigration

and

law:

Constructing

Immigrant

“Illegality”: Critiques, Experiences, and Responses (Cambridge University Press

2014). Dr. Menjívar has received much recognition for her contributions, and has

successfully sought major funding for her research.

She recently accepted a

position as Foundation Distinguished Professor of Sociology at the University of

Kansas after a successful career at Arizona State University.

By

this

brief,

Amici

demonstrate

that

the

history

of

anti-immigrant

legislation preceding H.B. 2779 and H.B. 2745, as well as the sponsorship of these

two bills by a long-standing opponent of unauthorized immigration, reveal a

motive to make state-level immigration policy in an area preempted by federal law.

The preliminary injunction against enforcement of these laws as they pertain to

unauthorized

immigrants,

therefore,

should

be

affirmed.

The

observations

contained in this brief reflect the views of the Amici, not of the universities and

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institutions with which we are affiliated with; their academic positions are noted

solely to identify them as established scholars at research-oriented institutions.

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SUMMARY OF THE ARGUMENT

Arizona House Bill 2779 (H.B. 2779) and Arizona House Bill 2745 (H.B.

2745) reflect a long-standing legislative approach to the presence of residents who

have migrated from Mexico and Central America without legal authorization.

Discouraging unauthorized immigrants from settling in Arizona has been the

consistent goal of more than 100 bills proposed with increasing frequency over the

past fifteen years.

A number of these bills have been enacted into law.

The

legislation takes various forms, but often involves (1) conditioning public benefits

upon proof of legal status; (2) requiring local law enforcement personnel to

actively

engage

in

enforcement

of

federal

immigration

law;

or

(3) creating

prohibitions and penalties, often involving the private sector, that are designed to

make life more difficult for those living in Arizona without legal status. H.B. 2779

and H.B. 2745 are examples of this last form.

The groundswell of immigration-related bills in Arizona is a political

response

to

public

hostility

in

Arizona

over

the

presence

of

unauthorized

immigrants and anger with the federal government for its perceived failure to

prevent this situation.

H.B. 2779 and H.B. 2745 were aimed at appeasing this

public dissatisfaction, and laid the groundwork necessary for widely publicized

workplace raids as well as the criminal conviction and deportation of hundreds of

immigrant workers.

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Appellants argue that H.B. 2779 and H.B. 2745 are constitutional merely

because they do not mention the words “immigrant,” “alien,” “illegal resident,” or

any similar term. Nevertheless, their sponsorship by a long-time advocate of laws

to discourage unauthorized entry and residence, and the circumstances surrounding

their enactment, demonstrate that their actual goal was to make it difficult for

unauthorized immigrants to live in the state.

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ARGUMENT

Appellants claim that H.B. 2779 and H.B. 2745, the two Arizona statutes

that are the subject of this litigation, have no immigrant-related purpose.

See

Opening Br. (Dkt. #28) at 14 (contending that the “Identity Theft Laws” are

“unlike any of the previous statutes found to violate federal supremacy on

immigration” because the laws “include no reference to immigration.”). The facts

suggest otherwise, beginning with the wording of the statutes, which single out

persons using false documentation “to secure employment” as a particular source

of concern. This purpose does not speak to any contemporaneous problem Arizona

had at the time of enactment concerning identity theft undertaken for financial

gain.

The

fact

that

state

law-enforcement

agents

immediately

focused

on

workplace raids to enforce the new legislation suggests they understood that the

real goal of these laws was to target unauthorized immigrants and to facilitate their

deportation,

regardless of federal

legislation

that

was

already in place that

addressed the hiring of unauthorized immigrants.

Circumstances surrounding the

passage of H.B. 2779 and H.B. 2745, combined with their sponsorship and

stewardship by a state legislator well-known for strident anti-immigrant advocacy

and

association

with

anti-immigrant

groups,

undermines

Arizona’s

newly-

advanced claim that this legislation has a neutral, non-immigration-related purpose.

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These state laws were part of an evolving legislative and law-enforcement strategy

that culminated two years later in S.B. 1070, when “attrition through enforcement”

became

the

immigrants.

express

policy

of

the

State

of

Arizona

toward

undocumented

I. H.B. 2779 AND H.B. 2745 WERE PART OF A BROADER EFFORT TO ENACT STATE-LEVEL IMMIGRATION POLICY.

Between 2003 and 2011, a handful of Arizona legislators introduced over

100 bills focused on unauthorized immigrants living in Arizona.

See Kyrsten

Sinema, No Surprises: The Evolution of Anti-Immigration Legislation in Arizona,

in PUNISHING IMMIGRANTS: POLICY, POLITICS, AND INJUSTICE 85 (Charis E. Kubrin,

Marjorie

S.

Immigrants).

Zatz,

and

Ramiro

Martínez

eds.,

2012)

(hereinafter

Punishing

They covered a broad range of topics, including access to state-

provided housing, education, and health benefits, local enforcement of federal

immigration

law,

access

to

damages

in

the

courts,

voting,

availability

of

workman’s compensation and bail, trespass, day labor sites, sanctuary cities,

professional licensing, and other matters.

Each of these bills, however, was

designed for a singular purposeto make living and working in Arizona more

difficult for persons lacking legal status.

Table 1 provides a sampling of these proposals.

As this table indicates,

many of these bills stalled in the legislative process, but as public support grew

against unauthorized immigration, so too did their prospects for passage.

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approval by 56% of the voters of Proposition 200, a 2004 state-wide initiative

requiring proof of citizenship to vote and legal status to receive public benefits

represents an important tipping point, as evidenced by three subsequent initiatives

directed at unauthorized immigrants passed in 2006Propositions 102, 103, and

300. Each of the 2006 propositions received over 70% support of the voters. H.B.

2779 and H.B. 2745, passed in the two years following the 2006 initiatives and

highlighted in bold in the table below, exemplify the legislative response to this

voter mandate.

TABLE 1 Immigration-Related Bills, 2003-2011 1

2003

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

2246

Proof of Citizenship to Vote

Pearce

Failed in

Committee

2243

Requiring Emergency Medical Personnel to Report Suspected Undocumented Immigrants; Authorizing Local Law Enforcement to Enforce Federal Immigration Laws; Prohibiting Undocumented Immigrations to Enroll in Public Universities; Requiring All Public Agencies to Report Suspected Undocumented Immigrants; Authorizing Local

Pearce

Not Heard

1 This table does not identify all of the 100-plus immigration-related bills introduced in the Arizona legislature during this time period; rather, it covers a sampling in attempts to provide a broader picture of the types of legislation introduced. The table is largely based on the Appendix in Sinema, Punishing Immigrants at 7885.

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Law Enforcement to Enforce Federal Immigration Laws in Connection with All Arrests

Law Enforcement to Enforce Federal Immigration Laws in Connection with All Arrests

Law Enforcement to Enforce Federal Immigration Laws in Connection with All Arrests
Law Enforcement to Enforce Federal Immigration Laws in Connection with All Arrests

2004

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

Prop.

Requiring Proof of Citizenship to Register to

 

Adopted with 56% of the Vote

200

Vote, an ID to Receive a Ballot, Proof of Citizenship to Receive Public Benefits, and Agencies to Report Suspected Undocumented Immigrants

2248

Authorizing the Arizona Attorney General to Suspend Business Licenses for 6 Months for Violations of Federal Immigration Employment Laws

Pearce

Held in

Committee

 

2005

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

2394

Requiring Report Undocumented State Medicaid Applicants to Federal Authorities

Pearce

Not Heard

2395

Requiring State Department of Economic Security to Verify Immigration Status of All Applicants

Pearce

Not Heard

2030

Prohibiting Undocumented Students from Receiving In-State Tuition or Scholarships at Public Universities; Requiring Proof of Legal Status for Adult Education and Family Assistance Programs

Nichols

Passed, but

Vetoed

2030

Constitutional Amendment Making English Arizona’s Official Language.

Pearce

Passed

House, Held

 

in Senate

2259

Imposing Longer Sentences for Violations of Federal Immigration Laws and Adding Five Immigration-Related Aggravating Factors”

Gray

Enacted

2709

Building a Private Prison in Mexico for Mexican Nationals Convicted in Arizona

Jones

Passed, but

Vetoed

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2389

No Bail for Undocumented Immigrations Charged with Class 1, 2, or 3 Felonies (Referred to November 2005 Ballot)

Pearce

Passed

House and

Senate

 

Committee

2028/

Constitutional Amendment Outlawing Bail for Serious Felons without Legal Status

Pearce

Adopted with 78% of the Vote

Prop.

100

 

2384

Imposing Additional Sanctions on Businesses Sanctioned by Federal Authorities for Hiring Undocumented Immigrants

Pearce

Not Heard

2592

Prohibiting Day Labor Centers from Assisting Undocumented Immigrants

Rosati

Enacted

2386,

Authorizing Local Law Enforcement to

Pearce,

Initially

No

1306

Apprehend and Remove Undocumented Immigrants from U.S. (OK to cross state lines)

Johnson

Hearing,

then

Passed,

 

but Vetoed

 

2006

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

2448

Requiring State Medicaid to Verify Citizenship Status of Applicants and Report Violations to Federal Immigration Authorities

Burges

Enacted

2068/9

Prohibiting Undocumented Students from Receiving In-State Tuition or Financial Aid

Gray

Not Heard

1031/

Prohibiting Undocumented Immigrants from Receiving State-Assisted Adult Education and

Martin

Adopted with 71% of the Vote

Prop.

300

Childcare, In-State Tuition, and Financial Aid; Requiring Annual Reports to Legislature on Undocumented Applicants

2036/

Adopting English as Arizona’s Official Language; Providing Private Right of Action

Pearce

Adopted with 74% of the Vote

Prop.

103

 

2761

Building a Private Prison in Mexico for Mexican Nationals Convicted in Arizona

Jones

Passed, then

Held

1057

Stripping Undocumented Immigrants of Standing to File Civil Suits, Except for Actual Damages

Huppenthal

Held in

House

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1001/

Prohibiting Undocumented Immigrants from Obtaining Punitive Damages in Lawsuits

Huppenthal

Adopted with 74% of the Vote

Prop.

102

 

2044

Establishing Immigration-Related Employer Sanctions (Fines, License Revocation, and Criminal Sanctions)

Pearce

Passed in

House, Held

in Senate

2582

Authorizing Local Law Enforcement to Investigate, Apprehend, Detain, or Remove Undocumented Immigrants.

Pearce

Passed in

House, Held

in Senate

1157

Creating State Crime of Trespassing; Establishing First Offence of Unlawful Presence as a Misdemeanor, and Subsequent Offenses as a Felony

Gray

Passed,

but

Vetoed

2071

Authorizing Local Law Enforcement to Question Detained Suspected Criminals Regarding Immigration Status

Gray

Not Heard

2837

Stripping Local Governments Adopting “Sanctuary” Policies of State-Shared Revenues

Pearce

Failed in

Final House

2577

Requiring Local Law Enforcement to Enforce Federal Immigration Laws; Denying Punitive Damage Awards to Undocumented Immigrants; Creating a State Crime of Trespassing; Denying Adult Education, Childcare Assistance, and Tuition Assistance to Undocumented Immigrants; Establishing Immigration-Related Employer Sanctions; Creating Border Enforcement Security Team; Appropriating Funds for Border Security

Pearce

Passed,

but

Vetoed

 

2007

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

2471

Prohibiting Undocumented Immigrants from Receiving Public Benefits, Including Access to K-12 and Higher Education, Grants, Loans, Professional Licenses and Employment, Retirement Benefits, Public Welfare Benefits, Healthcare, Public Housing, and Disability Benefits

Pearce

Not Heard

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2779

Legal Arizona Workers Act

Pearce

Enacted

2589

Criminalizing Soliciting Employment or Labor in Certain Locations

Kavanagh

Passed, but

Vetoed

2022

Prohibiting Undocumented Immigrants from Entering Private or Public Land

Pearce

Passed

Committee,

 

then Held

2461

Requiring Local Law Enforcement to Inquire into Legal Status of Detained Criminal Suspects

Pearce

Not Heard

2751

Requiring Local Law Enforcement to Comply with and Enforce Federal Immigration Laws

Pearce

Passed Three

House

 

Committees,

then Held

2049

Proposing Ballot Referendum Requiring Local Law Enforcement to Comply with and Enforce Federal Immigration Laws

Pearce

Passed

House

Committee,

 

then Held

 

2008

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

2043

Proposing Ballot Referendum that Would Prohibit Public Education Without Proof of Legal Status

Pearce

Not Heard

2745

Adjustments to H.B. 2779 (Legal Arizona Workers Act)

Pearce

Enacted

2750

Prohibiting Undocumented Immigrations from Receiving Workman’s Compensation

Pearce

Not Heard

2412

Redefining Criminal Trespass to Include Knowingly Standing on a Public Street, Highway, or Adjacent Areas for the Purpose of Soliciting Employment

Kavanagh

Passed

House,

Failed in

Senate

2039

Proposing Ballot Referendum Requiring Local Law Enforcement to Comply with and Enforce Federal Immigration Laws and Prohibiting Undocumented Immigrants from Entering Private or Public Land

Pearce

Passed

House

Committee,

then Held

2625

Prohibiting Landlords from Knowingly and Recklessly Renting or Leasing any Property or

Pearce

Passed

House

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Dwelling to Undocumented Immigrants

 

Committee,

the Held

2807

Requiring Local Law Enforcement to Train Officers in Federal Immigration Laws, or to Imbed ICE Officers in the Police Force

Nelson

Passed,

but

Vetoed

2064

Proposing Ballot Referendum for H.R. 2807

Nelson

Passed

House

Committee,

the Held

 

2009

BILL #

SUMMARY

PRIMARY

OUTCOME

SPONSOR

1172

Requires Department of Education to Collect Population Data of Undocumented Students and Estimate Cost of Educating Undocumented Students; Authorizing Superintendent to Withhold Funds for Non-Compliance

Pearce

Not Heard

1334

Prohibiting Undocumented Immigrations from Receiving Workman’s Compensation

Pearce

Not Heard

1177

Prohibiting Undocumented Immigrations from Applying for Work or Working

Pearce

Not Heard

2533

Criminalizing the Act of Soliciting Employment from an Individual in a Motor Vehicle While Standing on Street, Highway, or Sidewalk

Kavanagh

Passed

House, Held

in Senate

2280

Requiring Local Law Enforcement to Enforce Federal Immigration Laws and Prohibiting Undocumented Immigrants from Entering Private or Public Land

Kavanagh

Passed

House and

Senate,

Failed on

 

Final Read

1159/

Creating State Crime of Trespassing that

Pearce

Not Heard

1010

Imposed Civil and Criminal Penalties on Undocumented Immigrants who Entered or Remained on Private or Public Land

2331

Prohibiting Local Governments from Enacting Ordinances that Prohibited Enforcement of Federal Immigration Laws

Boone

Passed

House,

Held

in Senate

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2010

BILL #

 

SUMMARY

 

PRIMARY

OUTCOME

 
 

SPONSOR

1097

Requires Department of Education to Collect Population Data of Undocumented Students and Estimate Cost of Educating Undocumented Students; Authorizing Superintendent to Withhold Funds for Non-Compliance

Pearce

Passed

Senate, Held

in House

1070

Creating State Penalties Relating to Immigration Law Enforcement Including Trespassing, Harboring and Transporting Undocumented Immigrants, Alien Registration Documents, Employer Sanctions, and Human Smuggling.

Pearce

Enacted

2162

Adjustments to S.B. 1070

 

Nichols

Enacted

 

2011

 

BILL #

 

SUMMARY

 

PRIMARY

OUTCOME

 

SPONSOR

1308/

Limiting Arizona Citizenship to Individuals

Gould

Failed in

1309

Born in the U.S. to Parents Who Are Citizens or Legal Permanent Residents; Precluding the U.S. Constitution’s Fourteenth Amendment From Applying to Children of Undocumented Immigrants

Senate

1222

Conditioning HUD-Funded Public Housing on Demonstrating Lawful Presence

Biggs

Passed Senate, Held in House

1405

Requiring Hospitals to Determine Citizenship Status of Patients and to Notify Immigration Authorities of Undocumented Immigrants

Smith

Failed in

Senate

1407

Requires Department of Education to Collect Population Data of Undocumented Students and Estimate Cost of Their Education

Smith

Failed in

Senate

2191

Retroactively Denying Punitive Damage Awards to Undocumented Immigrants

Weiers

Enacted

1490

Prohibits counties from issuing food handler’s cards without proof of legal status

Gould

Passed Senate, held in House

2102

Prohibiting

the

Issuance

of

a

License,

Kavanagh

Enacted

Fingerprint Clearance Card, or

Any State

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Identification to Undocumented Immigrants

   

1117/

Permitting House and Senate Leaders to

Pearce/

Enacted

2537

Participate in S.B. 1070 Litigation Without Seeking Authorization from the Legislature

Adams

1611

Omnibus Legislation Combining a Number of Former Pearce-Sponsored Bills from 2006 to 2010 and Adding New Restrictive Immigration Measures; Restricting Eligibility of Federal, State, and Local Benefits; Prohibiting Undocumented Immigrations from Operating Motor Vehicles, Enrolling in K-12 and Higher Education; Expanding E-Verify Program to All Arizona Employers

Pearce

Failed in

Senate

Table 1 demonstrates that the broader effort to enact state-level immigration

policy began as a drive by Representative, and later Senator, Russell Pearce.

It

also shows that with time he convinced others to join his cause.

The proposals

themselves range from areas reserved for state policyeligibility for tuition at

state-supported institutions of higher educationto matters reserved exclusively

by the federal governmentthe creation of immigration-related crimes. H.B. 2779

and H.B. 2745 exemplify the latter.

II. THE STRATEGY OF “ATTRITION THROUGH ENFORCEMENT” THAT BECAME THE EXPRESS IMMIGRATION POLICY OF THE STATE OF ARIZONA IN 2010 WAS IN PLACE WHEN H.B. 2779 AND H.B. 2745 WERE ADOPTED.

Russell Pearce, the man whose name is most frequently associated with

“attrition through enforcement” because of his sponsorship of S.B. 1070 in 2010,

has a long record of policy proposals that aim at unauthorized immigrants.

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H.B. 2779 and H.B. 2745, both of which he sponsored, are relative latecomers in

this line of bills.

Pearce began promoting various methods of “attrition through enforcement”

when he became director of the Arizona Motor Vehicle Department in 1995. From

that vantage point, he drafted H.B. 2154, a law that would for the first time require

legal status to obtain a driver’s license.

House

of

Representatives,

Pearce

Elected four years later to the Arizona

began

to

promote

“attrition

through

enforcementduring his second two-year term. He introduced two restrictive laws

in 2003, neither of which moved forward.

From

this

point

on,

Pearce

appears

to

have

made

immigration

the

centerpiece of his activity.

After a series of legislative defeats in 2003, including

the failure to get H.B. 2246a bill requiring proof of citizenship to voteout of

committee, Pearce began working with outside groups to take his issues directly

the voters via ballot referendums.

Sinema, Punishing Immigrants, at 6263.

These efforts culminated in the passage of Proposition 200, the Arizona Taxpayer

and Citizen Protection Act,which appeared on the November 2004 ballot.

Section 2 of Proposition 200, entitled “Findings and declaration,” provided that:

This state finds that illegal immigration is causing economic hardship to this state and that illegal immigration is encouraged by public agencies within this state that provide public benefits without verifying immigration status. This state further finds that illegal immigrants have been given a safe haven in this state with the aid of identification cards that are issued without verifying immigration

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status, and that this conduct contradicts federal immigration policy, undermines the security of our borders and demeans the value of citizenship. Therefore, the people of this state declare that the public interest of this state requires all public agencies within this state to cooperate with federal immigration authorities to discourage illegal immigration. 2

Proposition 200 represented the first significant victory for such efforts and

ultimately changed Arizona’s political and legislative landscape. 3

Polls taken in the ensuing months reflected the political momentum behind

anti-immigrant measures.

An October 2005 poll conducted by the Arizona

Republic revealed antipathy for unauthorized immigrants and pessimism about the

current success of the federal government in securing the border. Nearly six in ten

called unauthorized immigration an “extremely” high priority in an August 2006

survey of likely voters.

Nearly two thirds of these respondents stated that illegal

immigration hurt the state more than helped it and most opined that the issue of

enforcement was too important to leave to the federal government alone.

These attitudes were reflected in the passage of three anti-immigrant

referenda

in

2006.

Congresswoman

2

Text

of

Proposition

200

(2004),

Kyrsten

Sinema,

who

was

a

state

available

at

http://apps.azsos.gov/-

election/2004/Info/PubPamphlet/english/prop200.pdf (last visited Aug. 28, 2015).

3 In 2013, the Supreme Court held that the provision of Proposition 200 that required voters to provide proof of citizenship when registering to vote or casting a ballot was preempted by the National Voter Registration Act of 1993. Arizona v. Inter Tribal Council of Ariz., Inc, 133 S. Ct. 2247 (2013) (affirming Gonzalez v. Ariz., 677 F.3d 383 (9th Cir. 2012) (en banc)).

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representative at the time, attributed the support for H.B. 2779 to the outcome of

the November 2006 election, with its strong voter endorsement of the three anti-

immigrant referenda:

After the 2006 election, the Legislature saw the increasing popularity of anti-immigration legislation in Arizona and forged ahead. By the time, it was clear to the Legislature that the public supported anti- immigrant measures, at least when presented with no clear sign of any positive solutions to the growing immigration crisis Arizona was experiencing. As such, the political pressure to approve anti- immigrant measures increased exponentially, with Republicans, in particular, concerned about primary election challenges from the right as political payback for failure to support these measures. With growing public pressure to “do something” about immigration and thinly veiled threats from the political right about repercussions for those who opposed anti-immigrant measures, most legislative Republicans began voting for Pearce’s measures.

Sinema, Punishing Immigrants, at 68.

Proposition 200, the three 2006 ballot

referendums,

and

the

general

anti-immigrant

political

environment

provided

momentum for H.B. 2779, the Legal Arizona Workers Act,and H.B. 2745, its

2008 companion legislation.

The power of the movement to discourage unauthorized immigrants from

living in the state can be gauged, in part, by the inability of the Arizona business

community to block the Legal Arizona Workers Act.

The concern of business

leaders was that this new law would weaken the state’s economy.

See Marc R.

Rosenblum and Leo B. Gorman, The Public Policy Implications of State-Level

Worksite Migration Enforcement: The Experiences of Arizona, Mississippi, and

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Illinois, in TAKING LOCAL CONTROL: IMMIGRATION POLICY ACTIVISM IN U.S.

CITIES AND STATES 121 (Monica W. Varsanyi ed., 2010) (hereinafter State-Level

Worksite Migration Enforcement).

These factors appear to have been ignored in

the rush to support H.B. 2779, which passed both houses of the legislature by four-

to-one margins. Id.

These laws were unambiguously aimed at unauthorized immigrants. While

they impose a series of potentially escalating civil penalties on employers who

knowingly hire unauthorized immigrants, they imposed much harsher penalties on

the

immigrant

employees

they

hire,

criminalizing

applicants

who

use

false

documentation to gain employment. At the same time, Arizona was also implicitly

challenging the federal government’s long-time approach to employment by

unauthorized immigrants.

In 2007 and 2008, elected officials, faced with the polling results mentioned

above, supported H.B. 2779 and H.B. 2745, overcoming any doubts they may have

had about the legitimacy of occupying the federal domain in immigration policy.

In this respect they had the support of Arizona voters, who, the polling data

suggests,

saw

no

problem

with

granting

the

state

significant

immigration

enforcement responsibilities. The idea that Arizona must step in where the federal

government has failed to act was a major selling point for H.B. 2779. In fact, co-

sponsor

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Representative

John

Kavanagh contended

19

that that

“People want

a

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crackdown.”

Rosenblum

and

Gorman,

State-Level

Worksite

Migration

Enforcement,

at

121.

Then-Governor

Napolitano

justified

her

signature

authorizing the bill by citing the apparent inability of Congress to address state

immigration needs. Indeed, the District Court’s Preliminary Injunction Order aptly

cited to statements made by Governor Napolitano and members of the legislature

that clearly evidence the intent of the drafters and supports of these bills:

Senator O’Halleran stated that people convicted under the identity

theft law would be encouraged to “self-deport” instead of serving long prison sentences. Doc. 30-3 at 45. Senator Robert Burns supported H.B. 2779 because it would show that Arizona was tough on illegal

immigration. Id. at

When signing H.B. 2779 into law,

Governor Napolitano noted that a “state like Arizona [has] no choice but to take strong action to discourage the further flow of illegal immigration through our borders.”

Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015).

CONCLUSION

It is important to place legislation in its historical, political, and social

context to properly analyze legislative purpose.

The history of anti-immigrant

legislation preceding H.B. 2779 and H.B. 2745, and the sponsorship of these two

bills by a long-standing opponent of unauthorized immigration in Arizona, reveal a

motive to make state-level immigration policy in an area preempted by federal law.

The preliminary injunction against enforcement of these laws as they pertain to

unauthorized immigrants therefore should be affirmed.

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8908774

DATED this 28th day of August, 2015.

THORPE SHWER, P.C.

By s/Spencer G. Scharff

William L. Thorpe Spencer G. Scharff Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that

this brief complies with the typeface requirements of Rule 32(a)(5) and (6),

because it is written in 14-pt Times New Roman font, and with the type-volume

limitations of Rules 28.1(e)(2)(B) and 29(d), because it contains 4,068 words,

excluding the portions excluded under Rule 32(a)(7)(A)(iii).

This count is based

on the word-count feature of Microsoft Word 2013.

Dated: August 28, 2015

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By s/Spencer G. Scharff

William L. Thorpe Spencer G. Scharff Counsel for Amici Curiae

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CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2015, I electronically filed the foregoing

BRIEF OF AMICI CURIAE PROFESSORS DORIS MARIE PROVINE AND

CECILIA MENJÍVAR, with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that

all participants in the case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.

Dated: August 28, 2015

8908774

By s/Spencer G. Scharff

William L. Thorpe Spencer G. Scharff Counsel for Amici Curiae

23