"The first thing we do, let's kill all the lawyers."—Dick the butcher

Thursday, July 22, 2010

Predicting the SB 1070 Day

I feel a little like Jimmy the Greek, who used to predict outcomes of sporting events on TV until he flamed out in the blink of an eye with incendiary on-the-record racist remarks.  Not too hard to determine what side of SB 1070 he would have been on—though black co-workers on The NFL Today have stated they never detected a racist bone in his body while working with him, and though he was born in Ohio but had family roots on the Greek island of Chios in the Aegean Sea.

Before any Plaintiff ever stepped forward (you knew there were going to be some), before any lawsuit was ever filed, and before the federal government joined the fray, I felt like SB 1070 would not be enjoined in United States District Court in Phoenix, would quickly be appealed to the Ninth Circuit Court of Appeals in San Francisco, where that court would issue a stay against it while its legality was litigated.  If the state of Arizona then were to apply to appeal that order the United States Supreme Court, the high court would decline to hear it.

Now that I have 100 times the information as I did back then, if I were a betting man, I would still feel it’s a good bet.  I say that with one caveat—it is awfully difficult to tell from my perspective what US District Judge Susan Bolton will ultimately do as a result of today’s hearing.

I would not expect a decision today, though I believe she is going to have to issue one soon enough for the aggrieved party to take emergency appeals to the Ninth Circuit, and then to SCOTUS should it so decide.  Bolton has reportedly implied to attorneys of record in the cases that it is not a given that she could even issue a decision prior to July 29, 2010, the effective date of SB 1070.

I believe that to be bluff and bluster.  Why I do not know, because there is zero chance that the parties in this matter are going to settle their differences prior to her decision.  (the common reason why judges take such positions—they would rather not have to decide disputes, particularly intense and controversial ones.  That way they for certain avoid what they perceive as the worst outcome in any and every case that comes before them—reversal on appeal by a higher court)

In the longer run (past the request for injunction), SB 10170 has no chance of survival.  It is about as constitutional as Jan Brewer’s qualifications to govern a state in the union.

Today’s request for injunctive relief before Judge Bolton is a much trickier call.  She is difficult for an outsider to get a read on.

If you really wanted to get an accurate picture of her and what she might do in this essentially criminal case, you’d speak with a criminal attorney who practices in front of her regularly in criminal cases, and also agree that anything he or she tells you is not for attribution.

But the MSM, of course, is not doing that.  It speaks with the former president of the State Bar of Arizona, a former US Attorney, and Bolton’s old cronies from her days on the state court bench of Superior Court in Maricopa County.  These are all politicians who specialize in saying absolutely nothing even when they are trying to say something meaningful.

For example, “Bolton, 58, has a reputation as a no-nonsense judge.  (What judges seek reputations as ‘nonsense’ judges?)”; “She is known for focusing rigorously on the letter of the law.  (Again, what judges build reputations on turning a blind eye to the letter of the law?)

“She's smart enough to know that whatever she rules, it's going to be appealed,…She's going to do a good job gathering the facts and making a clear record so the appellate courts can make their ruling.  (Any federal judge knows this is going to be appealed.);
"I think she would be the best judge to have on this type of case," [one person describing Bolton as a down-the-middle jurist with a knack for handling complex cases while possessing rich judicial experience that includes stints in criminal, civil, family, juvenile and drug courts] (just a way of saying she had her own practice before becoming a judge rather than working at a firm)

A look at her history does not reveal much.  She was born in Philadelphia in 1951, and earned her bachelor's and law degrees at the University of Iowa.  That is weird in itself unless she went there on academic or athletic scholarship, or had family ties there.  Who goes from Philly to the middle of Iowa?  (with all due respect to Iowa City, which is a fantastic place to go to any Big Ten sporting event)

She came to Arizona in 1975 to clerk for a judge at the Arizona Court of Appeals.  She went into private practice shortly thereafter.  (Usually for a judge’s clerk that means she could not find a job at a firm.)  She was appointed to the Superior Court in 1989 by then-Gov. Rose Mofford, a Democrat.  During her 11 years as an attorney in private practice, she co-authored a book that provides legal and clinical perspectives on violence in families.  These are indicators of a Democrat.

Yet Bolton was appointed to the federal bench in 2000 by then-President Bill Clinton on the recommendation of Arizona Sen. Jon Kyl, obviously a notorious Republican of the highest and most repressive order.  (Senate and federal District Court appointments traditions essentially give Senators from the location of the judicial seat the decision to pick the person for the President to nominate.)  This would ordinarily mean she is a Republican, and if associated with Kyl, a Republican in spades.

Bolton was considered for the state Supreme Court in the early 90’s.  She was listed as an Independent.  Her current voter registration records have been sealed.  Why?  That is just weird.  She was a Democrat, but now a Republican?  Or what?  And what on earth could possibly justify sealing her registration records?  Who is she hiding from?

She struck from the Arizona ballot a land-preservation proposal advanced by the conservative Arizona Legislature.  The measure was a bid to counter a similar proposal by environmentalists that remained on the ballot after her decision.  She reasoned that the Legislature's proposal violated a state constitutional requirement that ballot measures cannot cover more than one subject.

She was called an activist judge (this is what Republicans call judges who decide cases against them regardless of whether the judge was correct on the law in making his or her ruling)  She was reversed by the Republican Arizona Supreme Court, and the measure appeared on the ballot.  It was defeated.

I still feel my initial, totally-without-the-facts thoughts should prove to be accurate.  (Injunction denied, followed by appeal to Ninth Circuit, where injunction granted.)  I am starting to get the feeling, however, that she might split the baby in half, giving something to each side.  Don’t ask me how though, but judges can be very creative in that regard.

Or she just might surprise us and grant the injunction.

Reasonable minds could differ as to whether failing to grant an injunction would cause “irreparable harm” that is required to be found as the basis for an injunction.  (I believe it would cause irreparable harm)  That makes the decision even more political than normal.  And as has been said, it is not easy to get a read on Bolton’s politics.

One thing is for sure.  It is going to be an interesting two weeks.  Hold on to your hats.

13 comments:

  1. The U.S. Justice Department is filing a lawsuit challenging the constitutionality of Arizona's new law targeting illegal immigrants. This sets the stage for a clash between the federal government and Arizona over the SB1070 immigration crackdown.

    Do you think the feds have a valid case? Are you happy that republican governor of Arizona will be spending millions of dollars in taxpayer money to defend they law?

    Share your opinion on all or Arizona's political issues at http://www.azlegislation.com

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  2. Good analysis, in both breadth and depth.

    Do you think anything of the fact that she requested all the cases be given to her?

    Conspiracy theorists in greater Phoenix are harping the fact that in the only two cases of federal versus state authority she ruled for federal preemption of state law both times, as proof she's an open-border Obama operative. What they fail to consider is that nearly any federal judge in her place would've ruled the same. I guess that must mean the entire judicial system is a liberal conspiracy.

    I also found it strange that her voting registration was sealed. That no doubt was a precaution against presumptive armchair bloggers accusing her of bias. Though on the first couple days she was assigned some of these cases, I was able to find confirmation that she was registered a Democrat from older web results. Those pages have since omitted the reference. That may be an indication against right-leaning pundits like Glenn Beck and Sean Hannity, who are sure to crucify her. Although, this could be to prevent lampooning from the left by John Stewart too.

    I agree there will be an injunction issued, it just remains to be seen her part in this.

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  3. Truth---No, I wouldn't make anything of her request. Evidently she was assigned the first ones, and requested the rest be transferred to her in the name of judicial economy. It could have been whoever is now acting as chief judge, or all of the other judges, asking her to make the request for transfer of the other cases.

    On the other hand, court administrators and judges doling out cases seem to think rules do not apply to them. Blind draws are definitely not always blind. But I don't think we can conclude anything nefarious until someone inside spills the beans.

    Good point about the conspiracy theorists. Those two other cases were about a conflict in federal employment law and state immunization of drug makers against punitive damages in products liability cases. The first case is obvious, and I'd have to read the products case to be sure, but you are undoubtedly correct. What do these right-wing people think? That federal judges go out of their way to make rulings favoring centralized government in preemption claims? That is just silly.

    Logical theories on the sealing of voter registration, but methinks there are paranoid forces behind the move. So what if we know she is now a Republican?, or still a Democrat? I'm pretty sure Roberts, Scalia, Thomas, and Alito are Republicans. I don't even have to look at their registrations. What happened to the First Amendment?, or do we just think its okay to violate that law too in the name of law and order? On what possible legal basis would these records be sealed? That federal judges be immune from criticism?

    Great comments Truth. Your online ID fits.

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  4. "On what possible legal basis would these record be sealed?"

    I don't know if you are very familiar with Arizona politics -- or rather, Maricopa County politics (Maricopa has about half the state's population in it, and includes Phoenix, Tempe, Scottsdale, Mesa, Glendale, and about 15 smaller municipalities and unincorporated cities).

    If you are not familiar, this may seem outrageously dysfunctional, even unbelievable.

    In Maricopa County, it can be against the law to rule against certain officials, all because they WILL abuse their authority and they will look to criminally investigate you and charge you.

    So far, 4 judges here have been criminally investigated and charges wrongly brought forth - hundreds of counts of bribery, impropriety, or racketeering. The prosecutor admitted they had no evidence that a bride was ever made or accepted, only tried to incoherently fumble that Arizona's bribery statutes were "very broad" and us commoners wouldn't understand their prosecuting strategy.

    This all happened very recently and is still being resolved (and by that I mean the county paying out millions in damages). The 4 judges are:
    Superior Court Judge Barbara Mundell
    Former Judge Kenneth Fields
    Judge Anna Baca
    Judge Gary Donahoe

    Judge Donahoe was the last victim, you'll probably find the most coverage there, as the public could not believe they could be innocent as the first judges were implicated. The latest to be threatened is Judge Christopher Skelly.

    Now that it's all come to light, we see clear evidence charges were brought against these fair, well-respected judges based on nothing more than ruling unfavorably against a sheriff or prosecutors and finding themselves on an "enemies list" (I wish I were making this up). You should find the notice from Yavapai County Prosecutor Sheila Polk, an outside prosecutor who refused to try any of these judges and was the sole voice against these innocent judges being tried on nothing more than retaliation and evidence insufficient to even qualify as probable cause.

    The corruption and abuse of power is much wider than that, and extended to intimidate judicial aides, county managers, the county board of supervisors, even intimidating mayors, municipal police, even 2 owners of a Phoenix newspaper were arrested in the dead of night and the IP addresses of every visitor to their newspaper's website were subpoenaed (this was another egregious case, as even the fundamental freedom of the press was denied).

    You can find most of this information from 2 good sources: a series called Reasonable Doubt that was awarded by the Pulitzer Committee for local journalism to call attention to this (on pulitzer.org in the 2009 archives), and the Phoenix New Times, which is the paper castigated for daring to publish what the other newspapers wouldn't.

    That is another reason some prominent Arizonans requested federal participation in this matter; were the DOJ not involved, Judge Bolton could likely be under surveillance or criminal investigation right now.


    That attorneys and fellow judges gave such meaningless, empty compliments that really said nothing at all about Judge Bolton was not an oversight or an error. It was to protect her and themselves.

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  5. Truth, several comments are appropriate here.

    First, thank you for your input and commentary, which I find to be informative, cogent, and astute.

    I am not that entirely familiar with Maricopa County politics, but as Russell Ziskey says to the Army Recruiter in the movie “Stripes”, I am “willing to learn”. I come to the quagmire with the disadvantage of relative ignorance, but at the same time with the advantage of a fresh perspective.

    I am presently in the process of relocating to the area, and though it was not the only or even primary thing, one of the attractions for me was the very state of Maricopa politics to which you refer. I am familiar with the story leading up to the charges against Donahoe, but not the others.

    You are correct about the unbelievable part; this story probably could not be written as fiction. It would be rejected as too far-fetched for potential readers to accept as plausible.

    Though it may not solve the problem entirely or immediately, help appears to be on the way. It could still not happen, but it looks for all the world like by this time next year Sheriff Joe, and perhaps even Andrew Thomas, will be under federal indictment for the abuses of power in which they have partaken. All the AZ wannabes who have styled themselves in that duo’s graven images will then either have to clean up their acts some, or face similar fates.

    I wouldn’t necessarily call the climate paranoid, because the fear and distrust permeating the community appear to be well-founded. Having said that, I still fail to see a justifiable reason to seal Judge Bolton’s registration records. She took the job. Now she, and others, are going to have to make decisions because they are the right ones, the politics be damned. Judges find that difficult to do, as most if not all of them are political animals who would not be judges were that not so.

    You won’t be able to tell your Arizona lawyers and litigation without a scorecard over the next 5-10 years, and the optimist in me tells me Arizona will emerge from it a much better place in which to live and work.

    Thanks again Truth.

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  6. You're very welcome. I found your content to be reasonable and prudently well-reasoned, two characteristics that have been unremittingly in short supply on this topic.

    Please do let us know if you plan to relocate to or visit Arizona. If you need any suggestions or help in the area, please don't hesitate, I'd be obliged to be help.

    If I could trade your bounded rationality for 1000 voters' willful heuristics, we'd be that much better off here, because there are about a thousand dogmatics for every pragmatic here. I'm a little flummoxed that anyone would voluntarily choose to reside in this political and climate - and by that I mean near-vacuum of culture and republican government (note the small "r"). Of course, while I'm here, I'm not going to be drawn in the unbridled momentum of elective despotism, but unlike many, I'm vigorously contesting this dissolution of a fair and free republic. I can't be too loud though, since I work in local government myself and don't need to be thrown in tent city for 2 weeks just because I happen to embody qualities hated by the champions of anti-intellectualism in power.


    I sincerely hope your assessment proves true - I haven't been following Andy and Arpaio's cases, but I have heard from several reliable sources that even Congressmen and federal officials are intimidated.

    Part of the reason I'm personally indifferent to Andy or Arpaio no matter the outcome is because I know there's twenty more clamoring to take their place (see first-term Sheriff Babeu's aspire to be the next Arpaio). In any other urban area of this size, these morons would be seen for the lowbred political jokes they are, but they keep getting elected into office by an overwhelming consensus (and I'm of the Sen. Graham stripe that respects the outcomes of elections -- the people spoke, and we must adhere to the rule of the republic). I feel really awful making some of the sweeping ad hominims that I just made, but I've come to realize that a power-driven, narrow-minded unelected governor demands to be taken as seriously as any other US governor, notwithstanding her deficient intellect and acumen leading to bad policy (there's many, many more than just this one). And to point out that she falls far short of all other governors and is probably closer to those that she maligns in terms of cerebral muster (only because they may not understand the language), is considered an ad hominem attack. This is characteristic of many Arizonans, who think that no matter how rich or poor, how prestigious or common, how educated or uneducated, how brilliant or ignorant you are, you should be given your fair chance to run for elected office (read the Dirty Truth About Clean Elections). I strongly disagree, though it has produced some good candidates, those candidates would've been financed by donors who like their sound policies. Instead, public money is given to anyone who can achieve minimum effort. When their opponent gets half a million from voters who believe in him, they get a check for the same amount. They demand to be on equal footing.

    I think it's lost on them the irony of public officials that demand to be relevent and respected, turning around and using their power to ensure other groups won't get a chance to be equal.
    All the fears of democracy perverted that the framers wrote about, is happening right here, including the complicit electorate whose economic anxieties are played on, the tyranny of the majority that Adams, Madison, and Jefferson dreaded, the trading of liberty in the name of (border) security that Franklin, Jefferson, and Paine cautioned against, the encroachment on liberty pleaded by the good intention of making us safe...crime and migration has steadily declined (data and statements by the border patrol themselves) yet lawmakers ratcheted and fueled fear to justify their unjustifiable laws... Aristotle would be appalled that our law is passion, free from reason.

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  7. Truth, no need to feel flummoxed. Winter is bad in the North, and no state is problem free. Phoenix has more culture than a guy like me could ever fully appreciate. Beyond all the desperados, there’s plenty of people from the Midwest, which is what I am used to. I even know some people from my smallish hometown who have been there 30 years.

    Some people like to watch a fire from afar; some people like to stand right next to it. I obviously am one of the latter. It’s not that often you are privileged to witness part of history, and AZ over the next couple of years or so will be that.

    You can’t really follow Arpaio’s and Thomas’s “case”, because grand jury proceedings are secret, but all the signs presently point to Arpaio’s indictment, and certainly his behavior merits it. Thomas may have problems too, though he is just a “subject” at present rather than a “target” in the federal investigation as is Arpaio. We’ll have to wait and see.

    There may be some Congresspeople and federal officials who feel intimidated, but I can assure you that Eric Holder is not one of them. There may be some AZ-based federal people feeling queasy, but when the hammer comes down, those people will be vastly outnumbered by people from outside the district. Those outsiders will know who to axe. If I were the AZ-based people right now, I’d be a lot more afraid of being on Arpaio and Thomas’s team than I would be on Holder’s. Holder has the federal government, not to mention the law, on his side. All Arpaio has is his guns, his employees, and his network---all of which are going bye-bye.

    As for the people waiting in the wings, I bet a dime to a dollar they won’t seem so aggressive with Arpaio headed to federal prison. If they do not learn from his example, they’ll just follow him there, as once the federal radar antennae go up on corrupt local law enforcement, the scrutiny is increased tenfold.

    Not that they are going to lose their base in the electorate. Why nearly every right-wing kook since Goldwater makes Phoenix his home is a fascinating question for which there are some logical reasons to give, and some that are more subtle if not down right random. However, AZ is going to have to move more to the left, there’s no more room to go any further right. They’ve pushed it to the limits, and then some. It looks like it may be time to start paying the piper.

    You’re spot on about Madison, Jefferson, Franklin. (and yes, Aristotle) They saw this coming 200 years ago. It was gathering roots way back then, and this type of thinking has always, and will be always, with us. George Orwell saw it coming some 60 years ago.

    I certainly would value your input and suggestions regarding the area. If you would be so kind, shoot me an email at marty.s.blair@gmail.com, and we could communicate via email. Thanks.

    And great comments.

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  8. There is an article in the Arizona Republic today that stated Phoenix police will just be verifying the legal status of everyone they arrest, regardless of if they have a valid Arizona license or any of the other "acceptable" documents listed in SB 1070:
    http://www.azcentral.com/2010/07/28/20100728arizona-immigration-law-police-enforcement.html

    If you recall, Phoenix police chief Jack Harris is testifying for the DOJ, and Mayor Gordon of Phoenix is vehemently against SB 1070. So now, they are going above and beyond the law to apply it as uniformly as possible. Harris was on the news saying this was a way to protect his officers from both profiling suits and citizen suits from people who don't think the department is enforcing less than the fullest extent.

    I thought this was a good way to handle this. So of course, that means the nativists don't agree; I guess this isn't part of the civil rights we all must give up because we are besieged? Watch for Harris to be hated or be accused of pandering to "illegals" because he applies the law uniformly, eliminating the privilege that nativists feel they're entitled to. Although he should make the argument that his agency is trying to help state law and it essentially just mirrors it.

    One of the councilmen yesterday said our dispatchers are getting more outrageous calls, like one lady who called to report Hispanics were having a barbeque in their backyard several doors down. She didn't come right out and say it, but she told the officer there was Spanish music playing. So the patrolman for that neighborhood drove by and all that was visible from the street was 5 or 6 children chasing each other with costume hats on. The officer immediately saw it was likely a children's birthday party or something and just kept driving.

    Like Wilcox said yesterday, the suspicion is palpable, I cannot believe the pervasiveness of criminalization because one is Hispanic. Even of my most enlightened friends made snide comments about Hispanics after the smallest perceived slight (sprinklers were on at the next hole we were playing). I just stared at her in shock. Of course, none of this ever goes on if there's a Hispanic present, and not one of her Hispanic colleagues or peers has any idea she says things like that.

    The nativists are restless.

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  9. I was just about to say that I see your point about even-handed application and the hypocrisy of the heretofore privileged, but I do not necessarily agree that it would be a good way to handle things. I was also about to say that it is not worth wasting too much time on, because SB 1070 is never going into effect, whether via US District Court in Phoenix, or via Ninth Circuit Court of Appeals in SF.

    Then I got the news that the injunction was essentially granted, although Bolton did throw SB 1070 supporters a few bones where she could.

    Keep me up to date if you would Truth with your sterling comments, as no doubt the nativists are most restless now than they were 90 minutes ago.

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  10. Truth from Mesa, AZJuly 28, 2010 at 5:29 PM

    The nativists are restless and up in arms; the Arizona Republic (our largest paper) is having a server meltdown from the sheer volume of comments - of course, since SB 1070, there have been a good amount of non-Arizonans registered, so I'm sure it's the nation weighing the publication down. As of the first hour, 171 pages of comments with about 50-50 comments per page:
    http://www.azcentral.com/news/election/azelections/articles/2010/07/28/20100728arizona-immigration-law-court-ruling-brk28-ON.html
    The egregious comments, calling for Arizonans to go down to the border armed and loaded, are being deleted as quickly as they appear, as are any ones advocating violence or vigilante justice, so it's hard to gauge the anger on the far-right.

    Here is Judge Bolton's ruling:
    http://lawprofessors.typepad.com/files/2010-07-28-az-decision.pdf

    You were right, she did split the baby in half. However, the Judgment of Solomon seems to fail here as both parties won at the expense of the other and will take what they can get.

    In reading Bolton's opinion, I was very impressed with how thorough she was; she took the DOJ to task for not making their arguments against the law severably as well as entirely. Since she cannot strike it down in it's entirety, the federal attorneys SHOULD have addressed the issues in pages 2-3 (of her ruling), which they failed to do. The most obvious being the intent of the law, "attrition through enforcement," which is a fancy way of saying the intent of SB 1070 is to harass Hispanics and make their lives so miserable that they just leave on their own. Obviously anyone can see why that's objectionable, but perhaps the DOJ just thought it was self-evident the intent is objectionable.


    The rest will take a while for me to process; if you could look over her ruling, your insight would be appreciated.

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  11. Truth, I'll be doing that tomorrow and probably posting an entry to the blog. If not, I'll post a comment here.

    Have a nice evening.

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  12. Truth, I'll be making a blog post on the opinion and the prospects from here tomorrow.

    I believe she COULD have struck the law down entirely. Not doing so was her way of splitting the baby. Looking at it objectively as I can though, she was probably correct in that interpretation. I'll explain in the post.

    In every other way, the State of Arizona got its lunch handed to it, as well it should have. The law was drafted by low-rent kooks with ties to white supremacy groups; is it really so surprising they don't know what they are doing? Nor could they, as their effort to set up their own state immigration agency and policy was doomed from the start. The fact that the drafters bungled the job just added to the impossibility, and provided for lots of yuks when listening to nativist internet lawyers, i.e., "I'm not a lawyer but I play one on the internet."

    I agree with your assessment that the opinion was very thorough, very well written also. She's either a very smart cookie (again, as most federal judges are), or has a a very smart law clerk—probably both.

    The opinion was obvious—and it doesn't even begin to address other 4th and 14th Amendment problems and concerns with SB 1070 due to the nature of the request by the feds. What surprised me, and really impressed me, was Bolton's unwavering intent to apply the law without regard to the politics, though she did attempt to be politically sensitive to the other side where she could.

    All in all, the opinion was a triumph for the rule of law to a degree rarely seen in this day and age of intense political divisions within the culture.

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