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
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
"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
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
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.
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
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.