Two lawsuits challenging a recently passed border security measure will move forward as one after parties agreed to consolidate the legal efforts in a status conference Tuesday.
Immigrants rights groups, a political action committee and a lawmaker filed challenges to the border measure headed to the ballot in November and again allege violations of the single subject provision in the state Constitution.
The Legislature sent HCR2060, a measure empowering state law enforcement agencies to arrest people who have entered the country illegally and imposes criminal liability on anyone who sells “lethal fentanyl,” to voters along party lines on June 4.
On June 5, LUCHA, or Living United for Change Arizona, Victory PAC and House Assistant Minority Leader Oscar De Los Santos, D-Laveen filed a lawsuit challenging the measure based on violations of a provision of the Constitution requiring a bill to stick to a single subject.
On June 6, nonprofits Poder in Action, Phoenix Legal Action Network and Florence Immigrant followed, followed and also alleged violations of the single subject provision and that it will likely create conflicts, confusion and harm for the three plaintiffs as they work to provide social, legal and advocacy services to undocumented individuals.
In the complaint and motion for preliminary injunction, Andy Gaona, attorney for the plaintiffs, argued certain provisions in the resolution have nothing to do with each other. He wrote, “the Legislature’s attempt to impose state law consequences against those who do not enter the country and State through a legal port of entry or who submits false documents or information in applying for employment or public benefits has nothing to do with imposing criminal liability on every adult who commits the ‘sale of lethal fentanyl.’”
Gaona called the legislation a “chimera of at least four other bills” unsuccessful in the last session, which he claimed showed “further evidence of log-rolling, and further evidence that the act violates the Single Subject Rule.”
He cited Senate Bill 1231, a bill vetoed by Gov. Katie Hobbs, which made illegal border crossings a state crime and created immunity for those who enforced the provision as one example, along with, House Bill 2820, a measure creating felony liability for “drug trafficking homicide.”
In asking the court for injunctive relief, Gaona noted potential harm to the plaintiffs if the measure were to take effect.
Poder in Action noted a fear that the resolution would “provide more incentives and tools for law enforcement agencies across Maricopa County to racially profile residents, exposing them to an increase for police violence and family separation, whether through incarceration and deportation.” It also said the resolution would require the organization to “significantly” increase resources on community outreach and hire more staff.
Phoenix Legal Action Network, a group providing free legal services to low-income, non-detained immigrants facing deportation, would create “significant confusion” for the group’s lawyers “about the rights and legal remedies available to immigrants as many provisions contradict or undermine federal immigration law and make Arizona an inhospitable place for our immigrant community.”
It also would generally interfere with and complicate the group’s work and also require more resources, it claimed, as the law does not account for non-citizens in the midst of removal proceedings or those with “pending or colorable claim to immigration status” and would remove cases to a “shadow deportation system in state court,” which stands to create confusion and “massive new burdens on immigration lawyers,” particularly those licensed to practice in federal, but not state, court.
Florence Immigrant and Refugee Rights Project, a group providing legal and social services to immigrants, would similarly create confusion and complication for the group’s attorneys and employees. Gaona argued the plaintiffs are likely to succeed and will face irreparable harm absent an injunction.
“To allow the Legislature to do (effectively) whatever it wants under the broad subject of the ‘border’ would be precisely the sort of ‘foolishly liberal’ interpretation of the Single Subject Rule that Arizona courts forbid,” Gaona wrote. “The Legislature suffers no hardship if this Court enjoins the enforcement of an unconstitutional legislative enactment, while the people and the legislative process suffer greatly.”
LUCHA’s case is scheduled for a status conference June 11, while the suit from Poder in Action, Phoenix Legal Action Network and Florence Immigrant and Refugee Rights Project has a status conference June 26.
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