Prop 200 now law in Arizona
The Arizona Republic
Dec. 23, 2004
Tucson judge clears it; foes plan to appeal

Susan Carroll and Yvonne Wingett

TUCSON - A federal judge on Wednesday lifted an order barring Proposition 200 from becoming law, clearing the way for state, county and municipal employees to immediately start reporting to immigration authorities suspected undocumented immigrants seeking public benefits.

U.S. District Judge David Bury's decision allowed Gov. Janet Napolitano to issue an executive order enacting the controversial voter-approved legislation Wednesday afternoon. The decision left some municipal officials across the Valley and state scrambling to prepare workers who will be required to ask all who apply for public welfare benefits for proof of citizenship.

Attorneys for the Mexican American Legal Defense and Educational Fund, the legal advocacy group that sued to stop the government from enforcing the initiative, plan to appeal the decision to the 9th U.S. Circuit Court of Appeals in San Francisco today or Monday. But state officials vowed that the law will go into effect and said workers will be equipped to deal with the new reporting requirements.

"Proposition 200 is now the law of Arizona," Napolitano spokeswoman Jeanine L'Ecuyer said. "And (the governor) expects that agencies will comply with the terms of 200 and any related issues."

The initiative requires state and local employees to verify the immigration status of people applying for public benefits and report undocumented immigrants or face possible criminal prosecution.

Arizona Attorney General Terry Goddard issued an opinion that narrowly defined "public benefits" to mean welfare. For example, the Arizona Department of Economic Security administers five programs that are affected by Proposition 200, state officials said. They include General Assistance, Sight Conservation, Neighbors Helping Neighbors, Utility Repair, Replacement and Deposit and the Supplemental Payment Program.

Proposition 200 proponents have a lawsuit pending that would expand Goddard's definition to include considerably more services.

Bury, appointed to the Arizona court by President Bush, sided with attorneys defending Proposition 200, which was approved by 56 percent of Arizona voters Nov. 2. The judge's decision to lift the restraining order he signed Nov. 30 was assailed by immigrant advocates but hailed by Proposition 200 supporters who gathered outside the Tucson courthouse after a hearing.

'A huge win'

"This is a huge win for the taxpayers of the state of Arizona, the rule of law and the Constitution," said Rep. Russell Pearce, R-Mesa, who helped craft the initiative. "And it sends a message that we have the right to report those people who are in the country illegally, especially when they're attempting fraud."

Thomas Saenz, vice president for litigation for the legal-defense organization, criticized the judge's decision and vowed to continue to battle the initiative, which many immigrant rights advocates said could spark other states to push for similar legislation. Attorneys for the organization argued that the law was unconstitutional and would harm undocumented immigrants and state and municipal employees.

The organization sued in November on behalf of more than a dozen plaintiffs, including undocumented immigrants, their children and state employees from the Valley and Tucson.

"We think he (Bury) was wrong on the law," Saenz said. "We think he was wrong on weighing the harms. We think he did not understand clearly how devastating the effects of this law could be, and how unconstitutional it is."

Immigrant: 'It's racist'

Jesus Garcia, an undocumented immigrant from Sonora, said the proposition already has bred fear and uncertainty in immigrant communities. Garcia, a 47-year-old construction worker who has lived in Tucson since 1998 after spending nearly a decade in the Valley, said his wife is afraid to go to government offices, even though the couple's three children are U.S. citizens.

"I think it's racist," Garcia said. "They don't understand if (undocumented immigrants) receive help, it's not for them, it's for the kids who are U.S. citizens. They're trying to put pressure on immigrants, and it's very dangerous . . . because some won't seek help."

Napolitano ordered agencies to perform random checks to guarantee Proposition 200 is properly implemented. Starting today, state, county and municipal employees will have to alert federal immigration officials in writing of suspected undocumented immigrants seeking public benefits. Those who failed to do so could face a Class 2 misdemeanor punishable by up to four months in jail and a $750 fine.

The measure also would give residents the right to sue the state, county or municipal government to remedy violation of federal immigration law.

Impact unclear

Many government officials said they remain unsure which services will be affected or to what degree. The DES has trained an estimated 2,350 employees to check documentation, officials said. If problems arise, the state will "defend any employee who makes a good-faith effort to follow the law," said Liz Barker, a DES spokeswoman.

In a packed hearing in Tucson federal court, Hector Villagra, the lead attorney for the Mexican American Legal Defense and Educational Fund, told Bury that the law remains vulnerable to interpretation and urged the judge to issue an injunction until the state had a binding interpretation of the proposition.

"Immigrants would face a chilling effect from the initiative's reporting requirements," he warned before the decision.

Steve LaMar, representing the state government, argued that the "people of Arizona spoke" with the passage of Proposition 200 and that the judge, barring constitutional concerns, was bound to uphold the law.

"The people of Arizona spoke directly, and what is the message if we take up the plaintiff's flag?" he asked. "It breeds apathy, and we don't need that in America in 2004."

Bury said the government had addressed the court's "serious concerns" outlined in the temporary order issued in November and issued a written decision that rejected the fund's motion. He said the state interpretation does not go beyond the scope of federal law, which already requires proof of eligibility for public benefits.

Officials calm fears

After the hearing, immigrant advocates pushed for people to come forward if they believe they are wrongly denied benefits, while some government officials tried to calm fears about the proposition's impact.

"It's not a massive ruling that applies to all benefits," said Maricopa County Supervisor Mary Rose Wilcox, who opposed Proposition 200. She said Goddard's interpretation limits the law's impact. "You don't have to be worried about being deported. You don't have to worry about going to the banks or sending your children to school."

Elias Bermudez, executive director of downtown Phoenix's Centro de Ayuda (Center of Help), which prepares citizenship documents for immigrants, said immigrants won't know what benefits would be at stake. The main problem, he said, is that immigrants may not want to seek medical care for fear of being deported.

"It's a slap in the face to the Latino community," he said of the ruling. "We're very sad and feel sorry this is happening to our state."

Reporter Elvia Díaz contributed to this article.